Law Commons^™

Criminal Law, Thomas D. Church, Whitney Baker

Mercer Law Review

This Article provides a brief examination of the United States Court of Appeals for the Eleventh Circuit’s most important opinions in 2022 in the area of federal criminal law. Rather than engage in an exhaustive review of the facts and laws in each case, we focus on the key holdings from only the most noteworthy, published decisions. Section II of this Article addresses substantive criminal offenses, such as economic crimes, drug offenses, and firearm offenses, while Section III covers criminal procedure, the rules of evidence, and constitutional issues arising in criminal prosecutions. Section IV deals with the Federal Sentencing Guidelines …

Prison Housing Policies For Transgender, Non-Binary, Gender-Non-Conforming, And Intersex People: Restorative Ways To Address The Gender Binary In The United States Prison System, John G. Sims

University of Richmond Law Review

“[I]t was the end of the last quarter of 2019 where I was able to drop the lawsuit against the correctional officer who had sexually harmed me when I knew . . . that the carceral state is not the way for me to find healing . . . . I was not going to seek my transformation and restoration through this system.”

Each year, rhetoric and legislation attacking transgender, non-binary, gender non-conforming and intersex individuals seemingly grows louder. Many political institutions in the United States perpetuate and enable the oppression of these individuals, one of which is the United …

Criminal Law—Federal Conspiracy Law—Changing The Withdrawal Standard For Members Of A Conspiracy, Matthew N. Rose

University of Arkansas at Little Rock Law Review

No abstract provided.

Marital Disharmony: Examining The Adverse Spousal Testimonial Privilege And Its Impact In Washington State, Sabrina Suen

Washington Law Review

In Washington State, RCW 5.60.060(1) provides that “[a] spouse or domestic partner shall not be examined for or against his or her spouse or domestic partner, without the consent of the spouse or domestic partner.” This evidence rule, known as the adverse spousal testimonial privilege, allows a defendant to exclude witness testimony by their spouse under most circumstances. A product of common law tradition, this privilege stems from a time when the law treated women as chattel with no independent legal rights. Since Washington State codified the adverse spousal privilege, the United States Supreme Court amended the federal spousal testimonial …

Democratizing Tthe Eighth Amendment, Erin E. Braatz

Villanova Law Review

No abstract provided.

Criminal Justice Reform And The Centrality Of Intent, Cynthia V. Ward

Villanova Law Review

No abstract provided.

There's No Place Like Home: The Second Circuit Disturbs Fourth Amendment Protections In Torcivia V. Suffolk County, Jillian E. Sprong

Villanova Law Review

No abstract provided.

Stacking The Deck: How The Eighth Circuit's Decision In United States V. Crandall Threatens The First Step Act's Bipartisan Criminal Justice Reforms, Anthony Passela

Villanova Law Review

No abstract provided.

Fake “Universities” The Concept And Coping Strategies, Prof. Safaa Otani Prof., Hassan Al-Abdallat Dr

UAEU Law Journal

The increase in societal demand for higher education has resulted in a wide spread of global activities of universities and academic institutions. Moreover, the rise of e-learning patterns, distance education, and the increase of non-traditional types of education have prompted the development of quality assurance mechanisms as essential elements to the recognition and accreditation of academic institutions.

The problem that aroused, however, was in the exploitation of these models by certain entities claiming to be universities, idiomatically called the “degree mills”, and taking advantage of the educational environment to gain illegal profits, by selling “fake” degrees to individuals who pay …

Kritik Terhadap Struktur Ilmu Hukum Menurut Paul Scholten, E. Fernando M. Manullang, E. Fernando M. Manullang

Jurnal Hukum & Pembangunan

Paul Scholten, a prominent Dutch legal scholar, explains some thoughts in one of his chief article: De Structuur der recthwetenshcap. Essentially it describes some accounts on how legal relations may exist, which he thinks such relations can be both logic and illogical. Scholten even furthermore reiterates such paradigm, the dualism of logic and illogical, also underlies the scientific nature of legal science (jurisprudence). Finally, he also explores on the relations between language and jurisprudence. His all accounts leave some critical notes, as it has some internal contradictions in connection of, as what critical legal theory says, the presence of reifications …

Making Bad Decisions With Toxic Emissions: Exploring The Prosecution Of Companies For Superfund Crimes, Dr. Melissa Jarrell Ozymy, Dr. Joshua Ozymy

Washington Journal of Social & Environmental Justice

Marginalized communities in the United States bear the brunt of toxic pollution from Superfund sites. Criminal provisions in the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as Superfund, allow prosecutors to seek penalties for environmental crimes involving significant harm and/or culpable conduct, but we know little about how companies have been prosecuted for Superfund crimes. We utilize content analysis of 2,728 environmental crime prosecutions stemming from U.S. EPA criminal investigations from 1983-2021, and select cases of companies prosecuted for Superfund crimes. We found that across 41 prosecutions, 126 defendants were prosecuted, resulting in 68 years of probation …

Should Have Known Better? The Standard Of Knowledge For Command Responsibility In International Criminal Law, Roee Bloch

International Law Studies

The criminal doctrine of command responsibility has a rich legal history, which makes it a widely recognized, if unsettled, concept of international criminal law. This article focuses on a key element of command responsibility: the commander’s knowledge of a subordinate's crimes. This article argues that current customary law instructs to apply a standard of actual knowledge of the commander, rather than the lower standard of constructive knowledge. The article reaches this conclusion by observing the primary shaping factor of international law—State behavior. Through the example of six diverse legal systems, the article demonstrates how the approach of legislative, executive, and …

Forced To Play And Forced To Pay: The Indigent Counsel Fee In Massachusetts As A Cost Of Being Charged With A Crime, Stanislaw Krawiecki

University of Massachusetts Law Review

When indigent defendants in Massachusetts are charged with a crime and receive a court-appointed lawyer, they are also charged something else: a fee. This $150 fee is imposed on criminal defendants by the state as soon as they receive a constitutionally guaranteed "free" legal defense. The Article focuses on this inherent contradiction and identifies its far-reaching effects in undermining individuals’ constitutional protections. Massachusetts’s indigent counsel fee "chills" the right to counsel, creating a straightforward result for indigent individuals who are faced with a choice between paying for a "free" lawyer and not disclaiming their constitutional right to one. The deeper …

The Law Of Equitable Distribution: When Is Domestic Violence More Than Just A Factor In Divorce?, Ada Tonkonogy

Journal of Civil Rights and Economic Development

(Excerpt)

Imagine you are married. After many years there are problems in your marriage. Some of these issues are beyond your control. You find out that your spouse is cheating on you. You plan to come home from work and confront your spouse about their infidelities. You even begin to think about the divorce process, confronting the concerns raised in your mind. I’ll be okay. I have a great career, I have worked my entire life, and I have saved. I will be okay.

That night you approach your spouse. After an argument breaks out, you tell your spouse that …

Camera-Enforced Streets: Creating An Anti-Racist System Of Traffic Enforcement, Katie O'Brien

Journal of Civil Rights and Economic Development

(Excerpt)

On July 10, 2015, Sandra Bland was pulled over while driving in Prairie View, Texas, for failure to signal a lane change after moving to allow a trooper’s vehicle to pass her car. As the stop progressed, the trooper ordered Bland to get out of her car. When she refused, the trooper threatened to “yank [Bland] out” of her car and “light [her] up” with his taser. After Bland left her vehicle, Trooper Encinia handcuffed her, wrestled her to the ground, and kneeled on her. He later falsely claimed that Bland assaulted him. Three days later, police found Bland …

State Criminal Laws Could Be A Light In The Dark For The Hidden Victims Of Forced Marriage, Rebekah Marcarelli

Journal of Civil Rights and Economic Development

(Excerpt)

“There’s something you need to know about me . . . I am dead,” said Fraidy Reiss, a survivor of an abusive forced marriage, as she stood alone on a stage, speaking to a crowd. “I know what you’re thinking, [I don’t] look particularly dead . . . you might want to tell that to my family [because] they declared me dead almost thirteen years ago.”

Reiss, who founded the organization Unchained at Last to help forced marriage victims like herself, grew up in an ultra-Orthodox Jewish community in Brooklyn. Right after finishing high school, Reiss was asked to …

A Business Doing Pleasure: Combating Sex Trafficking By Decriminalizing Sex Work, Annalise Leonelli

Journal of Civil Rights and Economic Development

(Excerpt)

On the night police officers pounded on Yang Song’s door, she ran to the balcony of her fourth-floor apartment, which overlooks 40th Road in Flushing, Queens. Four years earlier, she had arrived at John F. Kennedy Airport with a dream of opening a restaurant. After a waitressing job failed, as well as a short-lived Chinese fast-food venture, she took a massage therapy course. There, she learned about a “lucrative opportunity” on 40th Road.

Flushing’s underground sex economy has been notorious for years. In fact, massage parlor arrests across the United States consistently lead back to addresses in Flushing. Because …

Conviction On Interpretation, Advocate Adaptability, And The Future Of Emojis And Emoticons As Evidence, Samantha Lyons

Seattle Journal of Technology, Environmental & Innovation Law

The dawning of the digital age introduced new and unique interpretive quandaries for judges and litigators alike. These quandaries include (but are not limited to) misinterpretation of pictorial slang as used in instant messaging, new or collateral meanings invented by phrases paired with specific emoticons or emojis, and the existence of emojis alone as communicative accessories.

This Note analyzes how lawyers and judges have essential free reign to treat emojis as they see fit: a prosecutor can argue, even in good faith, that the inclusion of an emoji depicting an open flame means the sender knew the heroin he sold …

From Hashtag To Hash Value: Using The Hash Value Model To Report Child Sex Abuse Material, Jessica Mcgarvie

Seattle Journal of Technology, Environmental & Innovation Law

In the summer of 2021, Apple announced it would release a Child Safety Feature (CSF) aimed at reducing Child Sex Abuse Materials (CSAM) on its platform. The CSF would scan all images a user uploaded to their iCloud for CSAM, and Apple would report an account with 30 or more flagged images to the National Center for Missing and Exploited Children. Despite Apple’s good intentions, they received intense backlash, with many critics arguing the proposed CSF eroded a user’s privacy. This article explores the technology behind Apple’s CSF and compares it to similar features used by other prominent tech companies. …

“Take The Motherless Children Off The Street”: Fetal Alcohol Syndrome And The Criminal Justice System, Michael L. Perlin, Heather Ellis Cucolo

University of Miami Law Review

Remarkably, there has been minimal academic legal literature about the interplay between fetal alcohol syndrome dis- order (“FASD”) and critical aspects of many criminal trials, including issues related to the role of experts, quality of counsel, competency to stand trial, the insanity defense, and sentencing and the death penalty. In this Article, the co-authors will first define fetal alcohol syndrome and explain its significance to the criminal justice system. We will then look at the specific role of experts in cases involving defendants with FASD and consider adequacy of counsel. Next, we will discuss the impact of FASD on the …

Bisakah Alam Menjadi Subyek Hukum? Refleksi Atas Beberapa Pengalaman, Rian Adhivira Prabowo, Adi Seno, Fajar Ahmad Setiawan, Unu P. Herlambang, Edho R. Ermansyah, Gerry Pindonta Ginting

Jurnal Hukum & Pembangunan

This paper discusses three legal precedents regarding the legal personhood of nature in three countries; Ecuador, New Zealand, and India. Each country has recognized some natural areas as legal persons through different means. In Ecuador, the rights of nature, which resemble legal personhood of the nature, are recognized in the 2008 Amendment of Ecuador Constitution. Meanwhile, New Zealand has recognized the legal personhood of Whanganui River through legislated settlement treaty between the government and Maori peoples. Whereas in India, the rivers of Ganges and Yamuna have been recognized its legal personhood through the Uttarakhand High Court’s decisions. These three legal …

The Implementation Of Modest And Simple Principle To Mahr As A Contribution To The Indonesian Marriage Law, Nur Mohamad Kasim

Jurnal Hukum & Pembangunan

Mahr was one of the groom's provisions to the bride and regulated by the Islamic sharia. Mahr was one of the series in a marriage procession. Islam regarded mahr as the bride's private rights, so it should not be transferred to her guardian or family. Islam defined mahr as the groom's duty, and it should not be violated. The bride would fully authorize mahr. QS. An-Nisa (4) recited, “And give the women (upon marriage) their (bridal) gifts graciously.” The gift was mahr, whose amount was determined on behalf of two parties' agreement, as it should have been voluntarily given. Nevertheless, …

Tinjauan Yuridis Prompt Release Procedure Dalam Menangani Tindak Pidana Perikanan Di Zona Ekonomi Eksklusif Indonesia, Haridus Haridus, Sudardi Sudardi, Kresno Buntoro

Jurnal Hukum & Pembangunan

Article 292 UNCLOS is a novel provision, both in the law of the sea and in general international law, as no such provision existed before the Convention was adopted. The purpose of procedure is to reconcile the interests of the detaining State in its measures against the flag State. Generally, the flag State wishes its vessel and its crew released promptly while the interest of the detaining State to secure the court appearance of the Master and the payment of penalties. Under Indonesian law, the procedure regarding prompt release is regulated in the provisions of Article 104 of Law Number …

Sebuah Kerangka Teoretis Hubungan Institusional Berbasis Konstitusionalisme, Titon Slamet Kurnia

Jurnal Hukum & Pembangunan

This article discusses legal issue pertaining to institutional relationship between the Constitutional Court and the Supreme Court in case of constitutional interpretation, particularly the bindingness of the Constitutional Court’s opinion over the Supreme Court. Responding the issue, this article conveys departmentalist view, and rejects judicial supremacist view within the Constitutional Court in prescribing the constitutional interpretation authority. In line with departmentalism, this article argues that the Supreme Court should be given authority in constitutional interpretation, concurrent with the Constitutional Court. It is further argued that constitutional interpretation should be viewed as constitutional discourse in which the Supreme Court should be …

Ijtihad Berbasis Maqashid Syari’Ah Sebagai Pijakan Konseptual Dalam Pembaruan Hukum Keluarga Islam Indonesia, Ilham Tohari, Moh. Anas Kholish

Jurnal Hukum & Pembangunan

Many circles consider that Islamic family law in Indonesia must be renewed. But Islamic family law renewal is not an easy matter. The rejection of various parties to the Counter Legal Draft-Compilation of Islamic Law (CLD-KHI), as an effort to renew Islamic family law, become evidence of the difficulty of the renewal. Rejection of the CLD-KHI on the other hand also shows that Islamic family law reform must be carried out with approaches and methodologies derived from the tradition of Islamic thought itself. In this context, ijtihad based on maqashid syari'ah acts as a conceptual basis for the methodology of …

Subsidi Angkutan Udara Kargo Dalam Kerangka Program Jembatan Udara Sebagai Kewajiban Pelayanan Publik Di Indonesia, Muhammad Ikram Afif

Jurnal Hukum & Pembangunan

The state is obliged to subsidize cargo air transport to Air Transport Business Entities in the form of State-Owned Enterprises (SOEs) and non-SOEs. This provision is carried out by the application of public service obligation through the Air Bridge program carried out by the government through assignments to SOEs and/or private Air Transport Business Entities through the selection of other service providers in accordance with statutory provisions. This study attempts to analyze the problems related to the implementation of subsidized cargo air transport as a public service obligation based on the legal framework of public services in Indonesia; comparison of …

Model Pengaturan Kedaruratan Dan Pilihan Kedaruratan Indonesia Dalam Menghadapi Pandemi Covid-19, Fitra Arsil, Qurrata Ayuni

Jurnal Hukum & Pembangunan

Indonesia own various of legal models uses to deal with emergencies. Two emergency arrangements in the 1945 Constitution are represented by the phrase "state of danger" in Article 12 of the 1945 Constitution and the phrase " coercive importance " in Article 22 of the 1945 Constitution. Both have different characters and implications for both the power generated and the oversight mechanism. In addition, there are also emergency legal instruments based on laws, which are represented among others by the Disaster Mitigation Act and the Health Quarantine Act. Interestingly, an emergency based on this law is not directly related to …

Covid-19, Pemenjaraan Berlebihan, Dan Potensi Katastrofe Kemanusiaan, Iqrak Sulhin

Jurnal Hukum & Pembangunan

On March 2, 2020 Indonesia recorded the Covid-19 case for the first time. Since then the trend in the number of infections has continued to increase. Likewise, the number of deaths. To anticipate the spread within the Penitentiary (Lapas), the Ministry of Law and Human Rights is releasing prisoners, through accelerating assimilation and parole. Similar policies have also been carried out by other countries in the world and are recommended by international institutions, such as the World Health Organization and the United Nations Office on Drugs and Crimes. However, the main problem behind this policy is the overcrowding condition in …

Pendanaan Pihak Ketiga (Third Party Funding) Dalam Penyelesaian Sengketa Melalui Arbitrase Dan Kemungkinan Penerapannya Di Indonesia, Carissa T.A. Temenggung, Yetty Komalasari Dewi

Jurnal Hukum & Pembangunan

The Third Party Funding (TPF) concept is an alternative method of funding usually applies in the dispute resolution process. Recently, the TPF concept has often been used in the process of resolving international arbitration disputes, both commercial and investment. This paper analyses the TPF concept and practices in several states, and its possible application in Indonesia. In particular, this paper discusses efforts made to regulate the TPF both in national law of several jurisdictions and in the international level, key issues within TPF in relation to the arbitration dispute resolution, and the TPF key provisions to be considered should Indonesia …

Instrumentation Of Ex-Officio Rights Of Religious Courts Judge Related To Fulfilling Children And Wife's Rights Due To Divorce, Adi Nur Rohman Uni, Sugeng Sugeng, Hesti Widyaningrum

Jurnal Hukum & Pembangunan

Most of divorce cases in Indonesia have a negative impact on divorced children and wives. This is due to the lack of public legal knowledge especially wives who are entangled in divorce cases so that their rights are often ignored. Judges of the Religious Court, in this regard, have a very important role in the protection of the rights of children and wives through the instrumentation of ex-officio rights which, because of his position, he has special authority in deciding the divorce case. This research is a combination of normative and empirical juridical research by connecting the case approach and …