Comparative and Foreign Law Commons^™

Introductory Note: Georgia V. Russia (European Court Of Human Rights), Milena Sterio

Law Faculty Articles and Essays

In a January 31, 2019 decision, the European Court of Human Rights (ECtHR, or Court) held that Russia, the respondent state, should pay Georgia, the applicant state, 10 million euros as just satisfaction for violations committed by Russia against Georgian nationals; these violations had previously been established in the Court's main judgment in 2014 (Georgia v. Russia). The Court also held that Georgia should distribute this amount to approximately fifteen hundred Georgian victims, which had been identified in the Court's main judgment in 2014. In this important decision, the ECtHR continued to build on its recent case law, in holding …

Table Of Contents, Cardozo International & Comparative Law Review, Vol. 3, Iss. 3

Cardozo International & Comparative Law Review

No abstract provided.

Nietzsche And The Law Of The “The Other”: The Jew In Refraction, Jeffrey Meyers

Cardozo International & Comparative Law Review

This article asks what Nietzsche might tell us about the possibility and conditions of having knowledge of the legal other or "the Other" in law. lthough not a familiar formulation, this line of inquiry must be permitted to take shape because it goes directly to the most basic theoretical conundrum of comparative law. This conundrum lies well beyond the moribund debate over the purported "commensurability'" or "incommensurability" of differing legal "systems" or "traditions. " Instead it takes comparative lawyers to task by asking them to explain how they might know, or hope to have knowledge of legal otherness. In this …

The History Of A Mystery: The Evolution Of The Law Of Unjust Enrichment In Germany, England And China, Steve Gallagher, Lin Siyi, Lutz-Christian Wolff

Cardozo International & Comparative Law Review

The law of unjust enrichment, despite being recognized in all modern jurisdictions, remains controversial due to its complexities. This article examines the historical development of unjust enrichment in Germany, England, and China, arguing that the concept's simplicity and academic influence are root causes of ongoing doctrinal and practical challenges. The analysis critiques the single principle approach—whereby any unjustified enrichment must be returned—highlighting its failure to address diverse scenarios effectively. The article concludes that this flawed foundational concept, compounded by academic ambitions, has led to persistent issues across all three jurisdictions.

The Need For Certainty And Written Form In Land Sale Contracts In China: A Legal Reform Recommendation, Wei Wen

Cardozo International & Comparative Law Review

Despite the significance of land sale contracts, China's Contract Law (the supreme authority in contractual matters) fails to articulate whether written form is mandatory for land sale contracts as a prerequisite for contractual remedies. The result of this ambiguity is that urban and rural courts across China have delivered contradictory judgments on this matter, and Chinese claimants do not have clear rules or authorities to follow. This imposes unfairness on those claimants. This article examines and analyzes the uncertainty and its causes, reaching a conclusion that the solution to addressing the nationwide uncertainty is a legal reform-Contract Law should articulate …

State Intent Under International Law, Stephen Townley

Cardozo International & Comparative Law Review

The question of legislative intent has long been a topic of intense scholarly focus in the United States. There has also been a recent uptick in discussion of executive branch intent with the filing of highprofile lawsuits predicated upon allegations of improper motives. However, there has been no corollary effort to unpack the concept of state intent at the international level, where it arises with respect to such varied questions as how to understand the scope of a state's consent, whether a state should be deemed to be negotiating in good faith, and whether a state has engaged in genocide. …

Are We In Good Hands? A Comparative Analysis Of Compensation Schemes Concerning Catastrophes And Their Administrative Structure, Yi Ming Zeng

Cardozo International & Comparative Law Review

The note critiques the administrative structure of the September 11th Victim Compensation Fund (VCF), highlighting its limitations in providing equitable and transparent compensation. It proposes integrating elements from Germany's and Japan's administrative systems to address these shortcomings and improve future disaster compensation schemes in the U.S.

Terrorist Victim Or Perpetrator?: Foreign Solutions To Challenges Posed By The U.S.’S Terrorist Bars To Asylum, Stephanie Blum, Nadav Morag

Cardozo International & Comparative Law Review

This article analyzes the challenges presented by the U.S.'s Terrorism-Related Inadmissibility Grounds ("TRIG") for asylum applicants and looks overseas for potential solutions. TRIG is the method by which the U.S. government bars terrorists and those who materially support terrorism from obtaining asylum and related protections. TRIG, however, is overbroad and inefficient, encompassing terrorist victims who currently pose and never posed any threat to U.S. security. Specifically, TRIG does not consider duress, or the provision of trivial support, when analyzing whether applicants should be barred from asylum because of material support of terrorism. Additionally, current law defines a terrorist organization for …

Human Rights In Indefinite Occupation: Palestine, Sari Bashi

Cardozo International & Comparative Law Review

The article examines the tension between international humanitarian law (IHL) and international human rights law (IHRL) in the context of prolonged occupations, specifically focusing on Israel's 53-year occupation of Palestinian territory. It proposes a framework that integrates human rights norms, such as nondiscrimination and progressive realization of economic and social rights, into IHL to enhance protections for civilians under occupation. The analysis highlights the limitations of IHL in addressing long-term occupations and advocates for a more robust approach that balances military necessity with the welfare of the occupied population, while also addressing the challenges of enforcing these standards in the …

Human Rights In The Six Arab States Of The Gulf Cooperation Council (Gcc): From Vision To Reality, Eleni Polymenopoulou

Cardozo International & Comparative Law Review

The article examines the evolving landscape of human rights in Gulf Cooperation Council (GCC) States, arguing that while there is a noticeable shift toward better human rights compliance, this progress is primarily driven by economic diversification and geopolitical strategies rather than a genuine embrace of international human rights norms. The analysis highlights that despite advancements in social and economic rights, significant challenges persist in areas such as civil liberties and media freedom. The article posits that human rights are increasingly viewed as essential for economic growth and development in the region, rather than merely as universal values.

Israeli Perfidy In The Disputed Occupied Palestinian Territories (Opt), Daniel Benoliel, Yohai Edery

Cardozo International & Comparative Law Review

This article considers Israel's controversial capture of wanted Palestinians in the disputed Occupied Palestinian Territories ("OPT') by resort to perfidy while feigning civilian status. That is given that Israel's call of choice for perfidy revolves almost entirely around capture as opposed to injuring or killing which Israel justly rejects as unlawful. While the prohibition of perfidy is accepted as customary international law, its practical definition and application in the OPT remain unsettled.

The article first considers the differences between the conduct of hostilities and law enforcement paradigms governing the disputed OPT. In certain situations that arise in armed conflicts, it …

Corruption Abroad: From Conflict To Co-Operation: A Comparison Of French And American Law And Practice, Fred Einbinder

Cardozo International & Comparative Law Review

The article examines the divergent approaches of France and the United States in combating corporate foreign corruption, highlighting their shared commitment to addressing the issue but differing legal frameworks and practices. While the U.S. employs participatory, lawyer-led systems with tools like plea bargaining and whistleblowing, France's inquisitorial, state-centric model has historically resisted such practices. The enactment of Sapin 2 in France marks a shift toward integrating American-style anti-corruption mechanisms, such as the Convention Judiciaire d'Intérêt Public (CJIP), while preserving core principles of French criminal law. The analysis underscores the challenges and opportunities of cross-border enforcement and the evolving cooperation between …

Return Of The King: Corruption Backsliding In America, Pedro Gerson

Cardozo International & Comparative Law Review

The United States appears to be going through a crisis of corruption. However, it is hard to know whether this is a matter of appearance or if the country is at risk of high levels of corruption making a comeback. The Article applies the equilibrium model of corruptionthe leading social science account of how corruption operates-to the current U.S. system, and shows that the United States may indeed be backsliding. The potential for corruption to creep back up is due to more than the political moment. Rather, it is the result ofpolitics combined with the relatively powerless institutional controls for …

Legal Exportation: The Case Of European Labor Law And Third Countries, Lior Zemer, Neta Nadiv

Cardozo International & Comparative Law Review

The frequency of change in industry and human mobility has brought new legal issues before labor courts. These changes constantly create a need to rethink and renew national labor law principles. In this process countries search for and import labor law principles from foreign legal systems. This Article focuses on Israeli labor law as a test case. Israeli courts considering labor law matters often turn to foreign legal systems in a manner that arguably influences the courts' interpretation and development of local labor laws. In practice, labor courts in Israel, when faced with a lack of appropriate domestic legislation, model …

Table Of Contents - Cardozo International & Comparative Law Review, Vol. 3, Iss. 2

Cardozo International & Comparative Law Review

No abstract provided.

Privacy In The Digital Age: Is Our Data Safe?, Ezra Wolfson

Cardozo International & Comparative Law Review

The note examines the Cambridge Analytica scandal and its implications for digital privacy, advocating for enhanced regulatory frameworks to protect user data. It draws parallels with the Enron scandal, suggesting that similar legislative responses, such as the proposed Social Media Transparency Act, are necessary to ensure corporate accountability and user protection in the digital age. The note also explores the potential adoption of GDPR-like regulations in the U.S. and discusses the concept of digital data as property, advocating for compensation for data breaches.

Addressing The Supreme Court’S ‘Constitutional Orphan’: Determining The Scope Of The Second Amendment In Public, Along With Its Need To Be Regulated, Eli Zlotowitz

Cardozo International & Comparative Law Review

No abstract provided.

Who Owns African Art? Envisioning A Legal Framework For The Restitution Of African Cultural Heritage, Charity Gates

Cardozo International & Comparative Law Review

The note advocates for the establishment of a legal framework to address the restitution of African cultural heritage, emphasizing the need to return looted art and artifacts from Western museums to their countries of origin. It highlights the historical injustices of colonial looting and the current legal barriers that hinder restitution, proposing solutions that balance cultural preservation with international cooperation.

Nyc V. Airbnb: New York City's Attempt To Regulate Home-Sharing Platforms And Airbnb's Attempt To Fight Back, Moshe Goldblatt

Cardozo International & Comparative Law Review

The note examines the legal battle between New York City (NYC) and Airbnb over the Homesharing Surveillance Ordinance, arguing that the ordinance violates constitutional rights and federal laws. It suggests that while NYC aims to regulate short-term rentals to address housing issues, the ordinance oversteps by compelling platforms to disclose private information without warrants, infringing on Fourth and First Amendment rights, and violating the Stored Communications Act. The note proposes a balanced approach allowing individuals to rent their homes while curbing commercial exploitation.

Paradigm Perplexities: Does International Humanitarian Law Or International Human Rights Law Govern The Gaza Border Protests Of 2018-2019, & What Are The Consequences? A Response To The Supreme Court’S Opinion In Yesh Din V. Idf Chief Of Staff (Hcj 3003/18), Anthony Carl

Cardozo International & Comparative Law Review

The note critically examines the Israeli Supreme Court's ruling on the 2018 Gaza border protests, arguing that the Court's classification of the conflict as an international armed conflict (IAC) is legally flawed. This classification allowed the Israel Defense Forces (IDF) to use live-fire policies under international humanitarian law (IHL), which the author contends is inappropriate for the context. The analysis asserts that the conflict should instead be treated as a non-international armed conflict (NIAC), with corresponding implications for the application of human rights law (IHRL). The Court's conflation of the law enforcement (LE) paradigm under IHL with the conduct of …