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Doktrin Penyalahgunaan Hak (Abus Des Droit), Syukron Salam

Jurnal Hukum & Pembangunan

The present article examines the emergence of the doctrine of abus de droit in France in the mid-twentieth century through an analysis of key judicial decisions and the debates that followed them. The study commences with an exposition of the manner in which the evolution of capitalism, concomitant with the escalating economic disparity and the propagation of societal challenges, has influenced the judicial approach to the abstract Roman-law tradition of absolute rights. In light of this, the article contends that the civil-law tradition exhibited a fundamental flaw in its conceptualisation of rights as absolute, thereby overlooking objections that were firmly …

Politik Hukum Kedudukan Wakil Presiden Dalam Badan Pengarah Percepatan Pembangunan Otonomi Khusus Papua, Maleakhi Samuel Pasalli, Yamuna Nurafifah, Pranaldo Gunawan

Jurnal Hukum & Pembangunan

The legal policy regarding the amendment of Law Number 21 of 2001 into Law Number 2 of 2021 concerning Special Autonomy for Papua marks a paradigm shift from asymmetric decentralization towards controlled autonomy or leading to the centralization of power, notably through the establishment of the Steering Committee for Acceleration of Development of Special Autonomy for Papua (BP3OKP), which is chaired directly by the Vice President. This research is motivated by juridical issues wherein the Academic Paper (Naskah Akademik) of the amendment fails to provide scientific justification regarding the urgency of establishing this special body or the involvement of the …

Symbolic Justice: The Continued Limits Of International Criminal Justice Without A Permanent Prison System, Meg Penrose

Faculty Scholarship

Many people misremember Nuremberg, Tokyo, and the subsequent World War II tribunals. These seminal international tribunals gave the world convictions but largely failed to fully enforce the sentences imposed. Most people do not recall the mass clemency following the World War II tribunals. This Article seeks to fill a scholarly void by explaining why international criminal justice has never matured beyond Nuremberg and Tokyo. The modern ad hoc tribunals, as well as the permanent International Criminal Court (“ICC”), have failed to deliver lasting justice. Much like Nuremberg and Tokyo, the modern tribunals fixate on arrests and convictions and then seemingly …

Feedback Loops: Fly On The Wall, Patrick Barry

Articles

I recently turned to an interesting source to get some feedback on the way I communicate when leading meetings and speaking to large groups: artificial intelligence (AI) tools. Born into a family of fast-talking New Yorkers who don’t always wait for you to finish your thoughts before they jump in with theirs (my mom grew up in Manhattan and my dad grew up in Long Island), I recently realized that I have developed what the linguist Deborah Tannen calls a “high-involvement” conversation style, especially when I take the lead in meetings or teach my classes. I nod as other people …

Brief Of Amici Curiae Professors Of Constitutional And Criminal Law In Support Of Petitioner (Whitton V. Dixon - 25-580), Ira P. Robbins, Jeffrey Fagan, Michael Cassidy, Barbara O'Brien, Catherine Grosso, William W. Berry Iii, Ellen C. Yaroshefsky

Amicus Briefs & Court Filings

Brief in support of Petitioner.

SUMMARY OF ARGUMENT: This Court has “consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair” because it “involve[s] a corruption of the truth-seeking function of the trial process.” United States v. Agurs, 427 U.S. 97, 103–04 (1976). Here, the Eleventh Circuit acknowledged that the state committed a Giglio violation when it permitted a jailhouse informant to falsely testify at trial that he lacked a violent criminal record despite prosecutors knowing that he did. The Eleventh Circuit deemed this violation harmless, however, based on its erroneous consideration of …

Local Government Standing As State Standing, Katharine Cooney, Katherine Mims Crocker

Faculty Scholarship

It is increasingly common, and controversial, for local governments to bring lawsuits as plaintiffs in federal court. Many questions about this practice raise matters that sound in policy. But some, including the issue of standing to sue, also raise issues of constitutional law. How local governments fit into standing rules should reflect how they fit into the U.S. constitutional system more broadly. As the Supreme Court put it in the famous (and infamous) 1907 case Hunter v. City of Pittsburgh, "[m]unicipal corporations are political subdivisions of the State, created as convenient agencies for exercising such of the governmental powers of …

Defending Form Contract Consent, Wayne R. Barnes

Faculty Scholarship

The issue of standard form contracts has bedeviled Contracts scholars for a century. The basic problem has long been known. Contract is supposed to be a quintessentially consensual activity, whereby both parties are operating with full knowledge and comprehension of the array of terms and conditions being negotiated and agreed to. But by employing standard forms replete with boilerplate fine print, companies have created a regime whereby it is most likely irrational for consumers to bother reading the terms before consenting to the transaction. The existing “duty to read” doctrine is that consumers fully consent to all terms when they …

Globalisasi Hukum Dalam Pluralisme Hukum Modern, Sulistyowati Irianto

The Indonesian Journal of Socio-Legal Studies

This article revisits the concept of legal pluralism, which continues to evolve alongside society and all its complexities. Knowledge of legal pluralism evolves in line with societal changes identified through scientific research and activities. Over the past two decades, developments have drawn attention to the globalisation of law, leading to the concept of modern legal pluralism. The intertwining and mutual influences, as well as the adoptions and reproductions, resulting from encounters between legal systems have become increasingly complex due to the presence of international and transnational law. This is particularly significant in the areas of human rights, democracy, clean governance …

Social Media Participation And Scholarly Success In Law, Julian Nyarko, David E. Pozen

Faculty Scholarship

Using a novel dataset on Twitter activity as well as a novel corpus of law journal publications, this paper examines the impact of social media activity on the scholarly success of U.S. law professors. We find that joining Twitter increases citation counts by an average of 22% per year and improves article placements by up to 10 ranks for law professors, relative to a synthetic control group. These positive returns apply across nearly all classes of scholars and are magnified for those who post frequently about their own work. The identified citation boost would be even larger than 22% if …

General Rulemaking Grants And The Federal Trade Commission, Tamar Katz, Alex Lloyd George, Lev Menand, Tim Wu

Faculty Scholarship

The legal campaign against the administrative state has a new front: general rulemaking provisions. General rulemaking provisions authorize agencies, in an open-ended way, to write rules to carry out Congress’s directives. Administrative agencies have relied on such provisions for decades. But over the last several years, some litigators, scholars, and judges have advanced limiting theories that would, if applied widely, greatly reduce the ability of agencies to execute federal statutes. The leading edge of this campaign is an effort to negate the rulemaking authority of the Federal Trade Commission (FTC). The reasoning employed by the FTC’s opponents, already adopted by …

The Value Of Jury Rights, Philip A. Hamburger

Faculty Scholarship

The right to a civil jury trial is often dismissed as an inefficient anachronism ill suited to the complexities of modern litigation, and these efficiency concerns have long overshadowed any serious defense of the Seventh Amendment. This Article argues that such skepticism profoundly misunderstands the constitutional function and enduring value of civil jury rights. The Article observes that the Seventh Amendment’s jury right was adopted with the understanding that it would come with some inefficiencies and that contemporary concerns about its inefficiencies tend to be overstated. Ultimately, the Article finds that civil juries are essential for structural reasons such as …

United States V. Skrmetti: L’Identité De Genre Dans Le Droit Et La Politique De L’Égale Protection, Olatunde C.A. Johnson

Faculty Scholarship

French Abstract: L’article analyse l’arrêt United States v. Skrmetti, dans lequel la Cour suprême américaine juge que l’interdiction, par le Tennessee, des bloqueurs de puberté pour les mineurs trans ne viole pas la clause constitutionnelle d’égalité, dite clause « d’égale protection ». Refusant de considérer qu’il s’agit d’une discrimination fondée sur le sexe, la Cour applique le contrôle le plus déférent (base rationnelle) et accepte l’argument de l’État selon lequel il protège les mineur·es de risques médicaux incertains. L’auteure montre ici que cette approche s’inscrit dans un contexte plus large de lois et de décrets fédéraux visant les personnes …

Fact Checking Oral Argument In Slaughter, Lev Menand

Faculty Scholarship

The Supreme Court heard argument on Monday in Trump v. Slaughter, a case in which the President seeks to override the power of Congress to limit, through legislation, presidential removal of federal administrators. The argument revealed some confusion about the law and history of federal offices and multiple precedents important to resolving the question. This post examines mistakes and misreadings with respect to: the design of the Federal Reserve System; the meaning of a fixed term; and the Court’s decisions in Marbury v. Madison, Ex Parte Hennen, and Parsons v. United States.

Slaughter, Parsons, And The Original Meaning Of A Term Of Years, Jane Manners, Lev Menand

Faculty Scholarship

This term the Supreme Court is hearing argument in two major cases regarding the law of federal offices. One — Trump v. Slaughter — may strip Congress of the power to place any restrictions on the President’s ability to remove administrators at will. Another — Trump v. Cook — will address how such restrictions work, assuming that the President has to follow them.

Editorial Foreword Ijsls Volume 5 Number 1, Sulistyowati Irianto

The Indonesian Journal of Socio-Legal Studies

This edition marks the end of 2025 and presents articles on seemingly unrelated themes but reveal various aspects of our current legal system and society. In several countries, including Indonesia, autocratic legalism has emerged as a governing practice. Indonesia's political elite do not obey the law, but instead change and manipulate the law in the name of the people to legitimise their power. Various policies continue to be enacted without a scientific basis or evidence-based data, and without considering their impact on people, especially the poor and vulnerable. State institutions are also systematically weakened because they operate without opposition when …

Public Defender Discretion, Alma Magaña

Articles

A focus of criminal legal system reform efforts has been the curtailment of police, prosecutorial, and judicial discretion, which has been criticized for its arbitrariness and its contribution to racial, class, and gender disparities. However, one system actor has largely escaped similar scrutiny: public defenders, who, by grant of authority from ethical rules of practice and Supreme Court jurisprudence, have significant decision-making authority in the cases of indigent persons charged with crimes.

This Article will, for the first time, explore the historical rationale for giving public defenders the power to make life-altering decisions for their clients. Specifically, it dissects the …

Purpose And Nonprofit Enterprise, Cathy Hwang, Dorothy S. Lund

Faculty Scholarship

Nonprofit enterprise is responsible for a large share of economic activity across the globe. And yet, leading theories fail to explain why nonprofit business survives and even thrives across a vast number of industries, ranging from artificial intelligence to beer brewing, despite an absence of shareholder control. Indeed, as shareholder ownership and intervention rights have become the core component of successful corporate governance, this success is all the more surprising.

This Essay offers a novel “purposeful enterprise” theory to explain the puzzling success of nonprofit enterprises. Drawing on research in behavioral economics and organizational science, it argues that organizational purpose …

Before Meyer And Pierce, Joshua Gupta-Kagan

Faculty Scholarship

In the standard story taught in typical Parents, Children, and the State or Children & the Law courses, analysis of parental rights has a clear beginning. In 1923, at the height of the Lochner era, in Meyer v. Nebraska, a case of first impression, the U.S. Supreme Court declared that “[w]ithout doubt” the Due Process Clause protected the right “to marry [and] establish a home and bring up children.” Two years later, in Pierce v. Society of Sisters, the Court recognized “the liberty of parents and guardians to direct the upbringing and education of children under their control.” …

Per Se Non-Takings, Nestor M. Davisdson, Timothy M. Mulvaney

Faculty Scholarship

In the discourse on the Takings Clause, disputes over methodology have long formed a kind of proxy war, with per se rules ordinarily underwriting strong constitutional protection for property rights and ad hoc standards more often vindicating public interests. At a moment when the Supreme Court is increasingly embracing the rules end of this rules-standards spectrum, this Article offers a novel perspective to challenge the conventional link between categorical reasoning and classical liberal conceptions of constitutional property.

To do so, the Article excavates a vast body of law denying takings liability through rule-like reasoning, an approach the Article calls per …

Lawyers' Client-Inclusive Negotiations: The "New Mediation"?, Nancy A. Welsh, Donna Shestowsky

Faculty Scholarship

When proponents initially urged the courts to institutionalize mediation for the resolution of general civil cases, they argued that the procedure would be superior to trial—and also to lawyers’ settlement negotiations—in terms of parties’ exercise of self-determination, satisfaction with outcomes, and opportunity for voice. These claims, however, rested on certain assumptions, particularly regarding the implementation of mediation and lawyers’ settlement negotiations. In mediation, the parties were to take center stage, with the mediator assisting them by facilitating their communication and negotiation so that they could reach a customized resolution. Lawyers’ settlement negotiations in general civil litigation, meanwhile, were assumed to …

Identity Salience Of Organizational Culture: The Intersection Of Racial And Occupational Identities In High-Risk Professions, Sarah Espinosa

School of Public Service Theses & Dissertations

Despite decades of effort, issues of race and color in organizations remain unresolved. Representative Bureaucracy (RB) has been a necessary but insufficient response to these challenges. While RB promotes diversity and inclusion, it struggles to address deeper issues of equity and justice, which are seen in the persistence of police brutality, even with increased representation of officers of color. This dissertation will propose a new theoretical approach to address the shortcomings of RB, a framework for the Identity Salience of Organizational Culture (ISOC). The ISOC framework seeks to build beyond RB to explain how the culture of high-risk professions with …

Copyright, Incentives, And Popular Music Composition, Glynn S. Lunney Jr.

Faculty Scholarship

The rise of file sharing and the subsequent collapse in sales of recorded music offer a rare glimpse into a counterfactual world where copyright, for a time, was weakened. Comparing creative output before and after this exogenous shock allows us to test empirically whether incentives to copyright owners were correlated with creative output. In this article, I extend previous work on this issue from recording artists to songwriters and search for a correlation between incentives and popular music composition. In particular, I test three hypotheses. First, I test whether more incentives were associated with more or better popular musical compositions. …

The Blackstone Ratio, Modified, Murat C. Mungan

Faculty Scholarship

In his discussion of evidentiary policies, Blackstone famously noted that ‘it is better that ten guilty persons escape than that one innocent suffer’ (Blackstone 1769). The conventional wisdom among lawyers, judges as well as academics holds that accepting this statement as a maxim necessitates the adoption of pro-defendant evidentiary rules. It is also commonly believed that costs associated with false convictions being greater than those associated with failures to punish offenders due to the presence of punishment costs provides a utilitarian rationale for Blackstonian principles. After formalizing Blackstone ratios (either as marginal rates of substitution or, alternatively, as the ratio …

Signaling Through National Security Lawmaking, Weijia Rao

Faculty Scholarship

An often-overlooked element of the ongoing TikTok saga is China’s export control law, which prohibits the sale of TikTok’s core content recommendation algorithm without prior approval from the Chinese government. This law is just one example of the extensive national security lawmaking China has undertaken in recent years. Closely paralleling similar institutions in the U.S., China has established a comprehensive national security legal framework that authorizes the government to restrict exports, sanction foreign entities, screen foreign investments, and block transactions involving cyber infrastructure.

Why turn towards legality when China has the ability to employ these actions without a formal legal …

Emergency Lending By The Federal Reserve, Kathryn Judge, Richard Clarida

Faculty Scholarship

The Federal Reserve established an array of innovative emergency lending facilities during the Great Financial Crisis and expanded the scope of its emergency lending yet further in response to the Covid-19 pandemic. This Article provides a retrospective of how the Federal Reserve used its emergency lending authority across these two episodes, identifying patterns and revealing some differences. It sheds light on the conditions that enabled the Federal Reserve to establish the facilities that it did, including the roles played by Congress and Treasury in providing the equity funding that made certain facilities possible. It shows how in each episode, the …

The Autonomy Default Paradigm In Contract Law, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

You can scribble an agreement on a napkin or hire lawyers to negotiate a hundred-page contract. Either way, most of your contractual obligations will not be in your document. They will be in the background rules contract law applies absent your express agreement. Justifying these defaults is a core task of contract theory; getting them right is a core task of contract law.

This Article introduces the autonomy default paradigm, a conceptually coherent and normatively attractive account of contract law defaults. We show that defaults are justified to the extent they enhance our autonomy, understood as self-determination. They vindicate our …

Quasi-Judicial: A History And Tradition, Beau J. Baumann, Jed Handelsman Shugerman

Faculty Scholarship

In challenging the historical assumptions underlying the unitary executive theory, scholars have made several seemingly unrelated discoveries. First, "judicial" power was conceived in English law as a subset of "executive" authority. Second, Congress at or near the Founding insulated certain court-like comissions from presidential control. Finally, the "quasi-judicial" and "quasi-legislative" powers that were central to the holding of Humphrey's Executor flowed from a forgotten nineteenth-century legal tradition was guiding Congress's construction of the modern state. This Essay connects these findings into a single claim: generations of American stretching back past the Founding have instinctively insulated administrators granted quasi-judicial functions from …

Presidential Removal As Article I, Not Article Ii, Gary Lawson, Jed Handelsman Shugerman

Faculty Scholarship

As a matter of original public meaning, Article I’s Necessary and Proper clause is the starting point for both Congress’s power to create offices and the limits on that power.

We believe that many legal scholars have demonstrated that, as a matter of original public meaning, the term “executive power” did not imply a presidential removal power, and Article II did not imply an indefeasible (unconditional) presidential removal power. By contrast, Article I’s Necessary and Proper Clause is a basis for limiting congressional power that is more historically grounded in original public meaning and in early practice. Tenure protections and …

Genocidal Accusation, Steven Arrigg Koh

Faculty Scholarship

To accuse of genocide — what does it mean? Genocidal accusation is ubiquitous today, evident more in the public square than in any courtroom. At first glance, such accusation seemingly relies on a central assumption: genocidal accusation is critical to preventing atrocity. This Article argues that this widespread assumption is incomplete, obscuring genocidal accusation’s dual nature. In fact, genocidal accusation encompasses not only laudable atrocity prevention (for example, the Rwandan genocide), but also problematic punitive, carceral discourse that brands the “other” as morally polluted (such as President Putin’s Ukraine invasion). It is thus challenging to evaluate such accusation in the …

The Post-Chevron Law Of Deference For Investor-State Arbitration, Won L. Kidane

Faculty Publications

In Loper Bright Enterprises v. Raimondo, the United States Supreme Court clarified the “law of deference” built “on the foundation laid in Chevron.” The American conception of the law of deference, long solidified as the Chevron doctrine, has had extraordinary resonance, having been cited in at least 18,000 cases and 22,000 publications over a period of forty years.

The Court’s overruling of the two-step Chevron analysis for the resolution of statutory ambiguity is the most obvious outcome and is likely to attract the most attention. There is, however, an obscure aspect of the Court’s overruling of Chevron: the clarification of …