Comparative and Foreign Law Commons^™

Same As It Ever Was: The Tijuana River Sewage Crisis, Non-State Actors, And The State, James M. Cooper

Cardozo International & Comparative Law Review

The article examines the ongoing environmental crisis caused by sewage contamination in the Tijuana River Valley, highlighting the inadequacy of current governance structures and international agreements in addressing transboundary pollution. It critiques the growing influence of non-state actors (NSAs) in border governance, arguing that privatization and deregulation undermine state accountability and sovereignty. The analysis emphasizes the need for a more effective and sustainable framework to manage environmental devastation and balance public and private interests at the U.S.-Mexico border.

Rule Of Law And International Human Rights, Vincent J. Samar

Cardozo International & Comparative Law Review

This article reviews the field of international human rights with particular attention to the way that the International Court of Justice, the International Criminal Court, the Human Rights Committee, and local domestic courts operate to resolve human rights cases. It first notes what internationally recognized human rights there are and the sources that give rise to them. It then explains how relativism enters human rights decision-making, especially at the domestic court level, in part because a common grounding for the human rights propounded was never adopted. Even at the level of the International Court of Justice, its failure to include …

The Commodification Of Public Land Records, Reid Kress Weisbord, Stewart E. Sterk

Articles

The United States deed recording system alters the “first in time, first in right” doctrine to enable good faith purchasers to record their deeds to protect themselves against prior unrecorded conveyances and to provide constructive notice of their interests to potential subsequent purchasers. Constructive notice, however, works only when land records are available for public inspection, a practice that had long proved uncontroversial. For centuries, deed archives were almost exclusively patronized by land-transacting parties because the difficulty and cost of title examination deterred nearly everyone else.

The modern information economy, however, propelled this staid corner of property law into a …

Law, Religion, And The Covid Crisis, Mark L. Movsesian

Faculty Publications

This essay explores judicial responses to legal restrictions on worship during the COVID-19 pandemic and draws two lessons, one comparative and one relating specifically to U.S. law. As a comparative matter, courts across the globe have approached the problem in essentially the same way, through intuition and balancing. This has been the case regardless of what formal test applies, the proportionality test outside the United States, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the United States, which rejects judicial line-drawing and balancing in favor …

The Roots Of Collapse: Imposing Constitutional Governance, Catherine Baylin Duryea

Faculty Publications

The foundational assumption of constitutional governance poses a conundrum for contemporary state-builders: a constitution heavily influenced by foreigners does not represent the views of the governed. Can a modern state-building effort foster democratic institutions when the new government reflects foreign? Nowhere was this tension more apparent than in Afghanistan, where the United States and the United Nations were heavily involved in drafting the 2004 Constitution. They shaped the process from the initial framework to the final, frenzied approval. Foreigners were engaged at both the procedural level—determining how the negotiations would occur and who would participate—and at the substantive level—providing input …

Fourth Amendment Issues And Covid-19 Tracking, Brooke A. Banks

Cardozo Arts & Entertainment Law Journal

The note argues that the special needs doctrine does not justify warrantless government access to cell site location information (CSLI) for COVID-19 tracking, as individual privacy interests outweigh public health benefits. It advocates for voluntary, privacy-protective measures, such as opt-in apps, to balance privacy and pandemic response.

Polarization And Reform: Rethinking Separation Of Emergency Powers, Kevin Rizzo

Cardozo International & Comparative Law Review

The note examines the challenges posed by the expansion of presidential emergency powers, particularly under the National Emergencies Act (NEA), and argues that political polarization has weakened Congress's ability to check the President's use of these powers. It advocates for reforms to balance national security needs with constitutional checks and balances, emphasizing the need to address the structural and political factors that enable presidential overreach.

A Bull In A China Shop: How Cfius Made Tiktok A National Security Problem, Adina Feder

Cardozo International & Comparative Law Review

The note critiques the expansion of the Committee on Foreign Investment in the United States' (CFIUS) mandate under the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA), particularly its inclusion of "sensitive personal data" as a factor in national security reviews. This expansion has led to overly broad and vague definitions, resulting in unnecessary restrictions on foreign direct investment (FDI) without adequately addressing legitimate national security concerns. The note argues that data privacy issues should be addressed through separate federal privacy legislation rather than CFIUS, which is ill-suited to handle such matters. It calls for clearer definitions and a …

Water Privatization And The Case For A Public Model, Jessica Wang

Cardozo International & Comparative Law Review

The note examines the risks associated with privatizing water systems, focusing on cases in Flint, Michigan, and Buenos Aires, Argentina. It argues that privatization can undermine public rights, exacerbate inequalities, and lead to environmental injustice. The analysis highlights the failure of regulatory oversight and advocates for stronger legal frameworks to protect vulnerable communities.

Section 230: The Internet's Most Important And Most Misunderstood Law Is Unfairly Under Attack, Málfríður A. Helgadóttir

Cardozo Arts & Entertainment Law Journal

Section 230 of the Communications Decency Act, a foundational law enabling the modern internet, is under threat despite its critical role in protecting online platforms from liability for user-generated content. The article argues that Section 230 is essential for promoting free speech and innovation, as its repeal would force platforms to censor content to avoid liability, fundamentally altering the internet. Critics often misunderstand the law, and bipartisan attacks jeopardize its future, risking the unravelling of the internet as we know it.

Panel 4: Cultural Property And International Human Rights Trends, Sandy Cobden, Leila Amineddoleh, Kristen A. Carpenter, Lawrence Kaye

Cardozo Arts & Entertainment Law Journal

The article examines the challenges and trends in recognizing the human rights dimension of cultural property claims, particularly for Indigenous Peoples. It highlights the intersection of social, ethical, and legal dynamics in repatriation efforts, emphasizing the need for international cooperation and the development of effective mechanisms to address these claims. The analysis underscores the importance of considering Indigenous Peoples' laws, traditions, and customs in repatriation processes and advocates for diplomatic approaches over litigation.

A Human Rights Approach To Cultural Property: Repatriating The Yaqui Maaso Kova, Kristen A. Carpenter

Cardozo Arts & Entertainment Law Journal

The article argues that current legal frameworks for repatriating cultural property, such as the 1970 UNESCO Convention, are insufficient because they are state-centric and fail to address the rights and interests of Indigenous Peoples. It advocates for a human rights approach, emphasizing the UN Declaration on the Rights of Indigenous Peoples, to remedy past injustices and ensure the repatriation of sacred objects like the Yaqui Maaso Kova. This approach prioritizes Indigenous Peoples' rights to religion, culture, and self-determination over state interests.

Why Judges Can't Save Democracy, Robert L. Tsai

Faculty Scholarship

In The Specter of Dictatorship,¹ David Driesen has written a learned, lively book about the dangers of autocracy, weaving together incisive observations about democratic backsliding in other countries with a piercing critique of American teetering on the brink of executive authoritarianism at home. Driesen draws deeply and faithfully on the extant literature on comparative constitutionalism and democracy studies. He also builds on the work of scholars of the American political system who have documented the largely one-way transfer of power over foreign affairs to the executive branch. Driesen's thesis has a slight originalist cast, holding that "the Founders aimed …

South Africa’S Reformed Investment Regime As A Model For Developing Countries, John Mayer

Lewis & Clark Law Review

Beginning in 2012, South Africa decided to unilaterally terminate many Bilateral Investment Treaties (BITs) with European countries—this represented a departure from the 1990s, where South Africa, like many other developing countries, entered into BITs with wealthy, capital-exporting states in the hopes of attracting foreign direct investment. In 2015, South Africa enacted, in place of the BITs, the Protection of Investment Act, designed to protect foreign investors while also providing the state more freedom to regulate in the public interest. This Comment analyzes the history of South Africa’s BIT policy, and argues that South Africa has suffered minimally, if at all, …

Negotiating Bilateral Tax Treaties: Should Tax Treaties Involving Low-Income Countries Contain A Sunset Clause?, Okanga Ogbu Okanga

Reports & Public Policy Documents

This policy brief reflects on an underexplored proposition: that bilateral tax treaties – particularly treaties involving (middle- and) low-income countries – should contain an expiration or sunset clause. The brief examines some reasons why it may be sensible for a low-income country to make its bilateral tax treaty expirable, from its onset. It also highlights a few reasons why such a policy may not be advisable – or tenable. The brief concludes by exploring the design of a model sunset clause for inclusion in the UN Model Tax Convention.

Equal Education Means Equal Education: Confronting Education Access Disparities For New York Students Amid The Covid-19 Pandemic During The 2020-2021 School Year, Sara Gruber

Cardozo Journal of Equal Rights & Social Justice

The COVID-19 pandemic exacerbated existing educational disparities, particularly affecting low-income and minority students in New York due to the shift to online learning. The state's current legislation, such as the Dignity for All Students Act, fails to address these off-campus digital divide issues, necessitating legal reform to ensure equal educational opportunities.

The British Government's Continued Failure To Deal With Deaths Resulting From The Troubles In Northern Ireland Is A Violation Of Human Rights, Marie Simpson

Cardozo Journal of Equal Rights & Social Justice

The note argues that the British government's failure to adequately investigate and address the 3,000 unsolved murders from the Troubles in Northern Ireland constitutes a violation of human rights. It critiques the government's proposed Historical Investigations Unit for being insufficient and not meeting the procedural standards required by Article 2 of the European Convention on Human Rights. The note proposes a restructured unit to ensure impartial and effective investigations, emphasizing the need for accountability and closure for victims' families.

Fundamental Rights And Fundamental Relationships: The Family In Comparative Constitutional Law, Paolo G. Carozza

Book Chapters

The chapter is part of the Proceedings of the 2022 Plenary Session
The Family as a Relational Good: the Challenge of Love
27-29 April 2022
Pierpaolo Donati (editor)
Acta 23, Libreria Editrice Vaticana, Vatican City, 2023

Bias And Biometrics: Regulating Corporate Responsibility And New Technologies To Protect Rights, Erika R. George

Notre Dame Journal of International & Comparative Law

No abstract provided.

The People's (Republic) Algorithms, Gilad Abiri, Xinyu Huang

Notre Dame Journal of International & Comparative Law

No abstract provided.