Comparative and Foreign Law Commons^™

Comparative Approaches To Parliamentary Thresholds In Selected Countries: Lesson Learn For Indonesia, Deni Angela, Mohammad Novrizal

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

This research aims to analyze the changes in the threshold number of votes obtained from general elections as a condition to be included in determining the acquisition of parliamentary seats, or from now on abbreviated as `Parliamentary Threshold,' which occurred in several countries that adhere to the democratic system, namely Indonesia, Turkey, Kazakhstan, Ukraine and Serbia. This article employs a normative legal research method, utilizing legal principles, history, and regulations as primary references, and then making comparisons. This research found that although the numbers of Parliamentary Thresholds in these countries vary, and the changes are some by increasing and some …

Prophetic Law In Indonesia And South Africa: A Comparative Constitutional Study On The Integration Of Religious Law Into Legal Systems, Kelik Wardiono, Arief Budiono, Saepul Rochman, Jan Alizea Sybelle

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Prophetic law is an ancient legal framework rooted in divine commandments, such as God's Ten Commandments to Moses, as well as Christian and Islamic laws, nowadays commonly referred to as religious law. The meaning of prophetic law is religious law from Abrahamic religions. Particularly, Christian law has significantly influenced Western civilization, with its impact extending to regions like South Africa besides customary law. Similarly, Islamic law has also left a lasting impression on Indonesia's legal system besides customary law. This article employs a comparative law method to analyze the constitutions of Indonesia and South Africa, focusing on the legalization of …

Compliance Vs. National Interest: Why Do Trade Restrictions Fail Under The Wto?, Enni Ekakusumawati, Abdul Masba Magasing, Maskun, Winnar Sitorus, Muhammad Mutawalli Mukhlis

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Trade restrictions are tools that countries often use to safeguard national interests, including economic stability, national security, and public welfare. However, under the World Trade Organization (WTO) framework-especially the General Agreement on Tariffs and Trade (GATT)-many such restrictions violate core principles such as non-discrimination (Articles I and III), the prohibition of quantitative restrictions (Article XI), and rules governing exceptions (Articles XX and XXI). This article examines why trade restrictions frequently fail in WTO dispute settlement by analyzing the substantive and procedural requirements under WTO law. Through a normative legal approach, it studies GATT provisions, WTO agreements, and case decisions-particularly the …

Open Legal Policy Criteria In The Constitutional Court Decision: An Evaluation And Recommendation, Firdaus Arifin, Ihsanul Maarif, I Gde Panja Astawa, Mohd Kamarulnizam Abdullah, Robi Asadul Bahri

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

The application of an open legal policy in the testing of legislative norms by the Constitutional Court of the Republic of Indonesia often leads to legal uncertainty due to the lack of clear criteria. The variation in the approaches taken by judges in interpreting legislative policies undermines legal certainty and diminishes the credibility of constitutional reviews. This research aims to evaluate the criteria of open legal policy that can serve as a basis for the Constitutional Court to assess the constitutionality of policies. This study employs a normative legal approach that examines theories, principles, and relevant legal rules in testing …

Legal Reform To The Foundation Wage System Based On Worker Performance, Dyah Hapsari Prananingrum, Freidelino Paixao Ramos Alves De Sousa, Chris Emilians Putra Jacobus

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

The main issue raised in this article is the vagueness of the norm of worker competitiveness in the Indonesian Foundation Law. In achieving its aims, a foundation will face problems related to its own sustainability. Charitable activities that it is engaged in are believed to threaten its sustainability, in addition to achieve fairness both for foundation as employer and worker as employee, norm of worker performance in the form of wage based on performance are needed. Such an issue may be solved by reforming the Foundation Law with the adoption of a performance-based approach, similar to the Job Creation Law. …

Ungerminated Seed: Proportionality Test In The Indonesian Constitutional Court, Eko Riyadi, Satya Arinanto, Simon Butt, Fitra Arsil

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

This article examines how the Constitutional Court of the Republic of Indonesia (the Court) constructs its argumentation regarding the limitation and derogation of human rights. The primary issue is how the Court interprets and operationalises the limitation clause under the Constitution of the Republic of Indonesia to derogate from and limit human rights. This article also illustrates how the Court applies the derogation and limitation clauses to freedom of religion, the right against retroactive prosecution and the death penalty, the right of women to stand for election, and the right to freedom of expression. The Court has never ruled on …

Breaking Diplomatic Immunity: Legal Implications Of Israeli Airstrikes On The Iranian Consulate Under International Law, Yordan Gunawan, Aisyah Ajeng Putri Riyanto, Safira Ayu Tri Ariyani

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

In April 2024, Israeli airstrikes were directed at the Iranian consulate building located in the capital city of Syria, Damascus. The Israeli-Iranian relationship has escalated significantly, shifting from a diplomatic partnership to severe hostility over the course of almost fifty years. This article seeks to examine the legal implications of the Israeli attack on the Iranian consulate building by considering the United Nations Charter and the Vienna Conventions, as well as to analyse the responses of the Iranian government and the international community. This article employed a normative legal research methodology, which involved combining a statutory approach with a detailed …

Indonesian Constitutional Court’S Moral Legitimacy: A Dworkinian Rights-Based Defense, Prisilia Kornelia Moonik

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

This study discusses the moral legitimacy of constitutional adjudication in general, with a particular focus on the Indonesian Constitutional Court. Moral legitimacy is crucial as it justifies the necessity of Constitutional Court—not merely because of its existence is stipulated by the 1945 Constitution. This issue is also discussed in response to the legislature’s (the People’s Representative Council) adverse reactions to the Constitutional Court, including efforts to weaken its authority. Additionally, moral legitimacy is also related to the well-known critique of constitutional adjudication: the counter-majoritarian difficulty. This study draws on Ronald Dworkin Rights-Based Theory, which defends constitutional adjudication as a means …

Can The Law Protect My Craft? How Gaps In Copyright Of Knitting Patterns Symbolize A Greater Struggle For Protecting Traditionally Feminine Forms Of Intellectual Property, Kysa Walzer

Seattle University Law Review

The purpose of this article is to demonstrate the application of intel-lectual property rights within the context of copyright protection of knit-ting patterns. The article will discuss the underutilization of copyright pro-tection for knitters and crafters and its larger impact upon craft and indus-try traditionally comprised of women. Part I introduces knitting patterns and a short history of copyright protections. Part II discusses the specific areas within knitting patterns and the knitting community which give rise to legal grey areas for copyright protection. Part III discusses the larger implications of copyright and intellectual property in spaces where women traditionally make …

Table Of Contents

Seattle University Law Review

Table of Contents

Volume 48 Masthead

Seattle University Law Review

Volume 48 Masthead

Keynote Address: Community Over Constitution, Riddhi Mukhopadhyay

Seattle University Law Review

In this keynote address, Riddhi Mukhopadhyay challenges the veneration of the U.S. Constitution by highlighting its origins in exclusion and its continued failure to protect marginalized communities. Drawing from her experience in civil legal aid and gender justice, she argues that the Constitution was drafted to consolidate power among white, wealthy men and continues to reflect that legacy through racial, gender, and class-based inequities. While acknowledging the significance of constitutional amendments and landmark cases, Mukhopadhyay emphasizes that meaningful change has always come from community-led action, not top-down reform. Additionally, Mukhopadhyay calls on lawyers and legal advocates to center community, practice …

The Lost Child: A Critique On Transracial Adoption Rhetoric, Hallie Conyers-Tucker

Seattle University Law Review

Transracial adoption in the United States reflects a deeply rooted history of colonialism, cultural assimilation, and racial hierarchy, masked by rhetoric focused on the “best interest of the child.” The author critiques that rhetoric and traces how adoption practices and policies, both domestic and international, have evolved to reinforce systemic inequities. Through historical analysis of the forced adoption of Native American, Black, and Asian children, it reveals how the best interest standard has been wielded not to protect children but to uphold political and racial ideologies. The author argues that the prevailing adoption framework relies on child-saving and color-blind narratives …

A Global Reconstruction: Black Internationalism And The Human Rights Regime, Britta Redwood

Seattle University Law Review

Black American advocates for civil, political, and economic rights have long taken an internationalist approach and fostered connections with international organizations and transnational movements. This engagement has also been a generative force and played role in shaping international law. Beginning in the early years of the twentieth century, Black intellectuals and leaders, spearheaded by the NAACP and the UNIA, focused on human rights as a means for addressing and repairing the harms wrought by slavery, Jim Crow, and racism. From the Paris Peace Conference of 1919 through the Universal Declaration of Human Rights, the Genocide Convention, and the drafting of …

The Gap: Addressing The Missing Piece In HawaiʻI’S Anti-Discrimination Laws On Credit And Lending, Wendy Mun

Seattle University Law Review

This author addresses the significant gap in Hawaiʻi’s anti-discrimination laws, specifically the lack of explicit protections for LGBTQ+ individuals against credit and lending discrimination. Although federal laws like the Equal Credit Opportunity Act (ECOA) and recent interpretations by the Consumer Financial Protection Bureau (CFPB) extend some protections, they remain vulnerable to shifting federal priorities and interpretations. The author explores how other states, particularly California and Washington, have enacted robust statutory protections that clearly prohibit credit discrimination based on sexual orientation and gender identity. They argue that Hawaiʻi, despite its large LGBTQ+ population, must amend its credit protection laws to reflect …

The U.S. Drug Policy Hamster Wheel: A Critical Discourse Analysis Of Seattle’S New Drug Ordinance, Hallie Conyers-Tucker

Seattle University Law Review

The author critically examines Seattle’s new drug ordinance using Critical Discourse Analysis (CDA) to reveal how legislative language influences the policy's actual effect. Although the ordinance claims to prioritize diversion and community health, the use of permissive language such as “may” and “shall” grants broad discretionary power to law enforcement and undermines the stated intent. The author situates the ordinance within a broader historical context, highlighting how drug policy in the United States has consistently been shaped by racialized and stigmatizing narratives. Additionally, the author argues that meaningful reform requires reframing the discourse around substance use to support public health …

Something Concrete: How Labor Advocates Can Best Respond To The Ambiguity Of Glacier Northwest, Ateş Serifsoy

Seattle University Law Review

The Supreme Court’s much-anticipated decision in Glacier North-west, Inc. v. International Brotherhood of Teamsters Local No. 174 (Glacier) marked a critical moment for workers’ rights under the National Labor Relations Act (NLRA) and the longstanding practice of Garmon preemption. Yet, initial fears of a significant rollback of workers’ rights, driven by sensational headlines, were met with an unexpectedly narrow Court opinion. This Comment examines Glacier’s implications for Gar-mon preemption and the right to strike. It offers the historical background of the doctrine of labor law preemption before Glacier; presents a detailed analysis of Glacier itself, including its …

A New Exclusionary Rule To Protect Bodily Integrity And Discourage Pretext Stops, Josephine Ross

Seattle University Law Review

The author proposes a novel state-level exclusionary rule to reduce racial profiling and protect bodily autonomy during police encounters. The current Fourth Amendment jurisprudence fails to deter pretextual stops and frisks because the exclusionary rule often turns on officer fault and "good faith," allowing racially motivated practices to go unchecked. As federal rollbacks on diversity and data collection hinder efforts to track racial bias, the author argues for a statutory evidentiary rule that automatically excludes drug evidence found during (1) traffic stops, (2) pat-downs for weapons, and (3) consent searches, regardless of an officer’s intent or the legality of the …

Navahine V. HawaiʻI Dept. Of Transportation: The Keiki Will Lead Us, Catherine Smith

Seattle University Law Review

The author analyzes the landmark case Navahine v. Hawaiʻi Department of Transportation, which culminated in the world’s first constitutional climate settlement. Catherine Smith, serving as an expert for the youth plaintiffs, situates the case within Hawaiʻi’s legal tradition of prioritizing children’s rights and intergenerational equity. She explores the evolution of children’s constitutional protections, contrasting Hawaiʻi’s progressive jurisprudence with the dominant adult-centric legal framework on the mainland. She critiques four recurring analytical missteps in U.S. courts that marginalize children’s interests and highlights Hawaiʻi’s public trust doctrine and cultural values, such as the Aloha Spirit, as models for addressing climate-related harms. …

Constitutional Futurism As Pedagogy, Jeremiah Chin

Seattle University Law Review

Constitutional Law has transformed from a course on history to a discussion of current events. Cases like Students for Fair Admissions v. Harvard College, Dobbs v. Jackson Women’s Health Organization, and Loper Bright Enterprises v. Raimondo reveal that the study of constitutional law is not a static, or even linear, discussion of constitutional text and history. Law is a shifting, changing enterprise that reflects social constructions of power, authority, and identity. How do we teach, learn, and understand constitutional law that is so laden with history, riddled with theories of consistency and adherence to precedent, but ultimately subject …

Exceptions To The International Customary Law Rule On Head Of State Immunity Under International Criminal Law, Daniel D. Ntanda Nsereko

Cardozo International & Comparative Law Review

The article examines the tension between head of state immunity and the pursuit of justice in international criminal law. It argues that while some nations and regional bodies, like the African Union, assert immunity for heads of state, international institutions such as the International Criminal Court (ICC) reject this principle, emphasizing the rule of law and accountability. The ICC's jurisdiction, particularly through UN Security Council referrals, overrides state consent, challenging traditional notions of immunity. The article posits that states must adhere to their treaty obligations, such as the Rome Statute, and cannot unilaterally opt out for political expediency, reinforcing the …

Analisis Potensi Pelanggaran Undang-Undang Persaingan Usaha Nomor 5 Tahun 1999 Ditinjau Dari Pasal Pengecualian Keagenan Dalam Industri Otomotif Dan Penerapan Regulasi Block Exemption, Mone Stepanus Andrias, Dian Parluhutan, Guntur Syahputra Saragih

Jurnal Hukum & Pembangunan

The economic transformation in Indonesia and other ASEAN (Association of the South East Asian Nations) countries reflects a shift from a government-based economy to an open market system with competitive principles. The challenges faced include the rapid development of the digital economy, including Industry 4.0 which has now entered its fifth literacy. The automotive sector is one of the sectors most affected by this phenomenon. Low labour costs and high motorisation rates have attracted more car manufacturers, especially from Japan, China and Germany (Europe) to make foreign direct investments in Indonesia. Indonesia is the second largest producer and consumer of …

Sosiologi Hukum Dan Perubahan Sosial: Studi Kasus Uu No. 35 Tahun 2014 Tentang Perlindungan Anak Sebagai Respon Terhadap Kesadaran Sosial Yang Meningkat Akan Hak Anak, Fahrul Rozi

Jurnal Hukum & Pembangunan

Dalam konteks sosial yang dinamis, kesadaran akan hak anak telah meningkat, terlihat dari perhatian masyarakat terhadap isu-isu seperti kekerasan, eksploitasi, dan diskriminasi. Meskipun UU No. 35 Tahun 2014 memberikan kerangka hukum yang kuat untuk melindungi hak-hak anak, tantangan dalam pelaksanaannya masih ada, termasuk kurangnya sumber daya dan koordinasi antar lembaga. Anak jalanan, sebagai kelompok yang paling rentan, sering kali terjebak dalam siklus kemiskinan dan stigma sosial, yang menghambat upaya perlindungan. Menekankan pentingnya edukasi dan sosialisasi mengenai hak anak, serta peran aktif masyarakat dan media dalam mendukung perlindungan anak. Dengan kolaborasi antara pemerintah, masyarakat, dan lembaga swadaya masyarakat, diharapkan hak-hak anak …

The Special International Peace Zone: From History, Through Practice, Toward An End To Armed Conflict In Ukraine, Tom W. Bell

Notre Dame Journal of International & Comparative Law

This paper presents the special international peace zone as both an observed and ideal institution. Such a zone quells military conflict in an area over which sovereigns make conflicting territorial claims. It operates through an interim administration, governed by its own rules, independent of any single sovereign. Past examples include the Free City of Danzig (1920-39), the Free Territory of Trieste (1947-54), and United Nations Interim Administration Mission in Kosovo (1999-2008). Despite proven successes, these zones have suffered from an undue reliance on multi-national organizations—first the League of Nations and now the United Nations. Warring sovereigns seldom agree about the …

Whose Truth Commission, Lehlohonolo January

Notre Dame Journal of International & Comparative Law

It is often said that the victor always dictates the narrative and thus dictates how history is represented. The end of Apartheid in South Africa wasn’t a result of an outright victorious defeat of the Apartheid State together with its institutions of coercion but rather came about as a result of a culmination of a series of events. If this adage holds true, then why is it that the narrative seems to paint a picture of a victor’s perspective? This assertion is not made lightly but is no less reflective of how the facts seem to portray themselves in that …

No Lawyer, No Jail: A Critical Case Study Of Pragmatism And The Flaws Of “Purposeful” Decision Making In Argersinger V. Hamlin, Alisa Smith, Sarah K. Stice

Seattle University Law Review

By releasing conference notes and internal communications, Supreme Court Justices provide insight into the otherwise private decisionmaking process, shedding light on how case outcomes and legal reasoning are framed and negotiated. The watershed case of Argersinger v. Hamlin (1972) extended the constitutional right to counsel to some, but not all, misdemeanor defendants. The case was argued twice, and the Court relied on empirical and authoritative sources to answer complex and practical questions about requiring counsel. This case study employs critical discourse analysis to uncover what influenced the Justices’ decisions and how they framed, shaped, and constructed social realities to foreground …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

The Race To Erase: Destruction Of Government Documents Undermines Freedom-Of-Information Laws, Frank D. Lomonte

Seattle University Law Review

In August 2019, reporters with Chattanooga’s daily newspaper, the Times Free Press, filed what seemed to be a routine request for access to emails and other public records held by their local county government. The seemingly unremarkable request set the newspaper’s staff on a months-long journey of unpleasant surprises. The first was a demand to pay the county $717 in advance before being allowed to inspect the documents. The second was that—during prolonged haggling over the fee assessment— the county attorney’s office simply destroyed almost all of the disputed records. Third, and most glaringly, the journalists discovered that Tennessee law …

When You’Re Arrested For A Felony In Seattle, You’Ll Meet Me., Austin Field

Seattle University Law Review

In this Essay, Austin Field, a practicing public defender, uses a first-person perspective to describe what it is like to meet a criminal defendant for the first time. He explains the process from start to finish, detailing everything from the way he introduces himself to how bail works.

"I’ll ask you for your name. Most of the time, you tell me. I check your name against my list. On any given day I’m supposed to interview between five and fifteen people. I have a lot of questions for you. We only have about ten minutes."

The Public Square In A Private-Property Obsessed Country: What New York City’S Pops Regulations Get Right And Why Other Cities Should (Mostly) Copy Them, Carson Mcgregor

Seattle University Law Review

When New York City (NYC) was first becoming the metropolitan monolith it is today, it had a problem: the city streets were chock full of skyscrapers, and sunlight, air, and usable open space were at a premium. In response, the City promulgated its first Privately Owned Public Spaces (POPS) regulations, which allowed developers to build skyward in exchange for providing public space on the street level. Unfortunately, in July of 2023, the New York Times (NYT) discovered that New Yorkers received only a fraction of what they were promised. Building owners received billions of dollars’ worth of added floor space, …