Constitutional Law Commons^™

“Don’T Move”: Redefining “Physical Restraint” In Light Of A United States Circuit Court Divide, Julia Knitter

Seattle University Law Review

To reduce sentencing disparities and clarify the application of the sentencing guide to the physical restraint enhancement for a robbery conviction, this Comment argues that the United States Sentencing Commission (USSC) must amend the USSC Guidelines Manual to provide federal courts with a clearer and more concise definition of physical restraint. Additionally, although there are many state-level sentencing systems throughout the United States, this Comment only focuses on the federal sentencing guidelines for robbery because of the disparate way in which these guidelines are applied from circuit to circuit.

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

How The Covid-19 Pandemic Has And Should Reshape The American Safety Net, Gabriel Scheffler, Andrew Hammond, Ariel Jurow Kleiman

Articles

No abstract provided.

Excessive Force: Justice Requires Refining State Qualified Immunity Standards For Negligent Police Officers, Angie Weiss

Seattle University Law Review Online

At the time this Note was written, there was no Washington state equivalent of the § 1983 Civil Rights Act. As plaintiffs look to the Washington state courts as an alternative to federal courts, they will find that Washington state has a different structure of qualified immunity protecting law enforcement officers from liability.

In this Note, Angie Weiss recommends changing Washington state's standard of qualified immunity. This change would ensure plaintiffs have a state court path towards justice when they seek to hold law enforcement officers accountable for harm. Weiss explains the structure and context of federal qualified immunity; compares …

Kebijakan Perlindungan Anak Korban Kejahatan Seksual Di Cirebon, Nur Rahman, Sarip Sarip

Jurnal Hukum & Pembangunan

This research is motivated by the local media in Cirebon since May 2016-2018 cannot be separated from the discussion and data that Cirebon is categorized as an emergency of child violence. The category of emergencies can be known from data on the increase in child violence in 2016 with 30 cases recorded, in 2017 there were 126 cases, and in early 2018 it increased to 147 cases. What is the ideal policy for realizing child protection? What steps should be taken by the regional government in Cirebon in responding to areas that are included in the emergency situation of child …

Telaah Yuridis Terhadap Surat Edaran Kementrian Agraria Dan Tata Ruang No. 2/Se-Ht.02.01/Vi/2019, Nur Adhim, Siti Mahmudah, Kornelius Benuf

Jurnal Hukum & Pembangunan

The Agraria Basic Law (UUPA) regulates that legal subjects for land rights, including land with HGB status (Right to Build), are Indonesian citizens and legal entities established under Indonesian law and domiciled in Indonesia. A different thing happened when a Circular from the Ministry of Agraria and Spatial Planning (ATR) was issued, stating that the Partnership Alliance (CV) could apply for land rights in the form of HGB. The difference in the substance of these rules will be analyzed using normative juridical writing methods, using secondary data. This paper will explain the legal status of CV in Indonesia, Arrangement of …

Peraturan Presiden No. 125/ 2016 Sebagai Katalis Perubahan Dalam Kebijakan Penyelamatan Kapal Pengungsi Rohingya, Susan Kneebone

Jurnal Hukum & Pembangunan

This paper incorporates discussion and papers presented at a Workshop on ‘Presidential Regulation No. 125 of 2016 on the Treatment of Refugees and Asylum Seekers in Indonesia: Opportunities and Challenges’, held at the Fakultas Hukum (Faculty of Law), Universitas Indonesia, in March 2018. The argument in this piece, namely that the Peraturan Presiden (Presidential Decree) No. 125/ 2016 is unlikely to be effective, has been borne out by the action of fishermen from Aceh who in 2020 landed 99 Rohingya refugees after the government of Indonesia refused to assist them. The PerPres of 125/16 does not contain a clear and …

Klaim Asuransi Pesawat Udara Sewa Guna Usaha (Operating Lease) Sebagai Objek Jaminan Fidusia, Sukarmi Sukarmi, M. Sudirman, Dwi Egawati

Jurnal Hukum & Pembangunan

Airlines in the process of procurement of an Aircraft, one of which is through Operating Lease with the Leasing Company. The Leasing Company (Lessor) in purchasing an Aircraft with funding mechanism from the Bank shall encumber the Aircraft with a mortgage as its securities. In the Aircraft Lease Agreement, Insurance Claim over the Aircraft shall also be encumbered with fiduciary by Airlines. Nevertheless, under Article 10 paragraph b Law of The Republic of Indonesia Number 42 of 1999 on Fiduciary (hereinafter referred to as UUJF) states that unless otherwise agreed, Fiduciary includes the Insurance Claims in the event that the …

Konsep Kepemilikan Tanah Ulayat Masyarakat Adat Minangkabau, Fitrah Akbar Citrawan

Jurnal Hukum & Pembangunan

Land is a very important factor in the life of the people of Indonesia, especially in the environment of the West Sumatra customary law community, where most of its population depend their lives and livelihoods from the land. In West Sumatra, in reality there are still acknowledged lands in the customary law community whose management, use and use are based on the provisions of local customary law and are recognized by the residents of the customary law community as their communal land. Ulayat Land Minangkanbau in the concept of ownership includes in the narrow sense that it is in the …

Tanggung Jawab Jabatan Dan Tanggung Jawab Pribadi Dalam Penggunaan Diskresi, Nehru Asyikin, Adam Setiawan

Jurnal Hukum & Pembangunan

Discretion is part of the authority to act freely by government officials to ensure the implementation of public services. However, the discretionary rules inherent in the office when it must be immediately to act without written law creates a conflict about the government must be based on the law. On the other hand the need for discretion becomes a polemic regarding job responsibilities and personal responsibility in the use of discretion, which parameters of use sometimes cause harm to society. The results of the study show that the implications of using discretion in the actions of officials that are used …

Optimalisasi Fungsi Pengawasan Dewan Etik Mahkamah Konstitusi, Fajlurrahman Jurdi, Rizqa Ananda Hanapi, Taufik Hidayat

Jurnal Hukum & Pembangunan

Violations of law and code of ethics performed by the constitutional judge shows that there is abuse of power within the court. The existence of Board of Ethics has questioned due to these violation and accused for not being able to perform its function in maintaining the dignity of the court. This concludes that the optimization of the function of the Board of Ethics are necessary. This is a normative and doctrinal research with several approaches. This research explains that board of ethics needs several changes within its body, such as: 1) boarden the board’s authority from investigating reports and …

Penguatan Kapasitas Lpd Desa Adat Di Bali Melalui Penyuratan Awig-Awig, I Made Suwitra, I Ketut Selamet, Luh Kade Datrini

Jurnal Hukum & Pembangunan

The Village Credit Institution (LPD) owned by Desa Adat in Bali is oriented to strengthen the economy of indigenous peoples (krama adat) through lending (loans) and savings. The main source of capital for LPDs is the commitment and trust of all village manners which are submitted through the Adat Village Management Board (Prajuru) and the LPD Board. The strengthening of LPDs is in its management and accounting system and its supervision, because it is not uncommon for LPDs that are already large due to weak monitoring systems, poor management and accounting systems to misuse LPD funds utilization which causes LPD …

Menilik Rezim Pengelolaan Tambang Freeport Dalam Mewujudkan Kesejahteraan Rakyat: Perpanjangan Kontrak Karya Atau Peralihan Ke Rezim Perizinan?, Ananda Prima Yurista, Rizky Septiana Widyaningtyas, Alda Awwalil Hasani

Jurnal Hukum & Pembangunan

The management of mineral and coal mining by Freeport has been carried out since 1967 based on a work agreement/contract of work, which is regulated in Law No. 11 of 1967 concerning Basic Mining Provisions. Since the enactment of Law no. 4 of 2009 concerning Coal Minerals under the authority in the management of minerals and coal changed from a work agreement/contract of work to a mining business permit. This article will try to respond to opportunities for contract extension or termination of work contacts and see which regimes will provide greater opportunities for the benefit of the state (in …

Pengaturan Dan Praktek Praperadilan Tindak Pidana Pajak Di Indonesia, Ahmad Sofian, Batara Mulia Hasibuan

Jurnal Hukum & Pembangunan

Pretrial is an institution to control and correct law enforcement which are deemed to have violated mechanisms established in procedural laws. The correction is not aimed to look into the aspects of the alleged criminal case but determine whether “rules of the game” established in the formal criminal law have been implemented properly or not. In practice, tax payers being involved in tax criminal cases often file pretrial motion although tax investigators actually have applied the principles of formal criminal law in legal measures they take. There are often different interpretations of laws and regulations used in pretrial institution for …

Penerapan Asas Proporsionalitas Dalam Pemanfaatan Aset Negara Melalui Model Build Operate And Transfer/Bot, Anita Kamilah

Jurnal Hukum & Pembangunan

National development in infrastructure by utilizing state-owned assets is a priority of President Joko Widodo's administration in an effort to equalize people's welfare through ease of connectivity in all regions of Indonesia. The amount of Indonesia's foreign debt which reached Rp. 5,425 trillion as well as limited government funding in both the APBN and APBD, strived through collaboration with the private sector using the Build Operate and Transfer (BOT) model. For the government, infrastructure development through BOT provides benefits to be able to utilize state assets without having to spend funding, increase state revenue, and at the end of the …

Prostitusi Online: Penjualan Suami Oleh Istri (Perubahan Relasi Gender Dan Seksualitas Di Era Digital), Vinita Susanti

Jurnal Hukum & Pembangunan

This article discusses online prostitution in the digital age, by showing changes in gender relations between victims and perpetrators, which are analyzed with the view of radical feminists and Bourdieu's theory, symbolic violence. Women in gender ideology are placed as victims, so in this article there is social deconstruction, where women occupy positions as perpetrators. This change was demonstrated through an online prostitution case: the selling of a husband by a wife. The discussion begins with the case of online prostitution, women in reality studies: victims of online prostitution, the study of radical feminist thought and symbolic violence from Bourdieu's …

Kendala Dan Cara Hakim Peradilan Tata Usaha Negara Pasca Uu Administrasi Pemerintahan: Suatu Pendekatan Atas Penanganan Perkara Fiktif Positif, I Gusti Ngurah Wairocana, I Wayan Bela Siki Layang, I Ketut Sudiarta, Putu Ade Hariestha Martana, Kadek Agus Sudiarawan, Bagus Hermanto

Jurnal Hukum & Pembangunan

After the enactment of the Law of Government Administration, had implied to shifting paradigm concerning the regime of Administrative Decision from negative fictive became positive fictive. However, the regulation into Law of Government Administration contains several obstacles on pratical scope towards Administrative Court Judges. Meanwhile enactment of Supreme Court regulation however Adiministrative Court Judges searching the suitable method after implication of positive fictive regime in the Administrative Procedural Law System. This study aims to analyze and discuss concerning obstacles and method by the Administrative Court Judges solving the practical obstacles after enactment of the Law of Government Administration. This study …

Status Hak Tanggungan Pada Pembiayaan Kepemilikan Rumah Di Akad Musyarakah Mutana Qisah (Mmq), Febrian Dwi Laksono, Thohir Luth, Siti Hamidah

Jurnal Hukum & Pembangunan

The prevailing legal stipulations on the contract of the Musyarakah Mutanaqisah (MMQ) financing are occurred legal uncertainty, which is caused by obscurity of the encumbrance regulations for land relating to financing with the MMQ contract. One of arising legal issue in the MMQ financing mechanism is a blurring of the norms contained in Law Number 4 of 1996 concerning Encumbrance Right over Land And Land-Related Objects (UUHT). The obscurity is caused by unclear stipulating sharia financing or specifically financing with the MMQ contract in UUHT. One of the provisions that reflecting this lack of clarity is to examine the description …

Tindak Pidana Pencemaran Nama Baik Melalui Facebook Menurut Kuhp Dan Undang-Undang Nomor 11 Tahun 2008 Tentang Ite, Arif Satria Subekti, Novian Ardynata Setya Pradana, Ajrina Yuka Ardhira, Mukhammad Tismandico Ilham Zulfikar

Jurnal Hukum & Pembangunan

The size of an action can be named as defaming the reputation of others is still unclear because many factors must be studied. In the case of defamation or defamation that is protected, the protection of others for the other person's point of view is protected and the agreed name in the eyes of others. Someone even the authorities will face us to account for a word that we have made against someone. Being asked to act disgracefully can help fight in the community. More than that, in solving problems, the legal people are actually required to really determine the …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Ethical And Aggressive Appellate Advocacy: The Decision To Petition For Certiorari In Criminal Cases, J. Thomas Sullivan

Law Faculty Scholarship

Over the past six decades, United States Supreme Court decisions have dramatically reshaped the criminal justice process to provide significant protections for defendants charged in federal and state proceedings, reflecting a remarkable expansion of due process and specific constitutional guarantees. For criminal defendants seeking relief based on recognition of new rules of constitutional criminal procedure, application of existing rules or precedent to novel factual scenarios, or in some cases, enforcement of existing precedent, obtaining relief requires further action on the Court’s part. In those situations, the Court’s exercise of its certiorari jurisdiction is the exclusive remedy offering an avenue for …

Novel Perspectives On Due Process Symposium: Punishment Without Process: “Victim Impact” Proceedings For Dead Defendants, Bruce A. Green, Rebecca Roiphe

Fordham Law Review Online

When women accuse powerful men of sexual assault, there is increasing public pressure to resolve any doubts in the accusers’ favor before the criminal process is over, if not from the outset. Private individuals and institutions often do so without worrying about due process, but it is different for the trial court, where the presumption of innocence is supposed to apply. This is especially true where public shaming and the accompanying reputational consequences already constitute a kind of punishment. Although they may be sympathetic to accusers, especially those whose cause is championed by a strong and popular social movement, courts …

Authority And The Globalisation Of Inclusion And Exclusion: Author Meets Readers, Hand Lindahl, Christine Bell Prof, Friedrich Kratochwil, Hans-W. Micklitz, Carlos Thiebaut, Bert Van Roermund

Indiana Journal of Global Legal Studies

Authority is written against the background of intense resistance to globalization processes by a range of political movements and grassroots organizations. These processes are complex and have a variety of dimensions. One of these is the emergence of global legal orders, which I define, in a rough and ready manner, as relatively autonomous legal orders that claim or aspire to claim global validity for themselves. They too-most obviously the World Trade Organization (WTO)-are the butt of resistance. Whatever its forms and aspirations, resistance to globalization is fueled by their peculiar dynamic. Indeed, emergent global legal orders spawn massive exclusion when …

Tasing The Constitution: Conducted Electrical Weapons, Other Forceful Arrest Means, And The Validity Of Subsequent Constitutional Rights Waivers, Andreas Kuersten

William & Mary Bill of Rights Journal

Conducted electrical weapons (CEWs)—the most famous and widely used of which are offered under the TASER brand—are ubiquitous tools of law enforcement, carried by the vast majority of law enforcement officers and routinely deployed. These devices subdue targets by coursing electric current through their bodies, thereby causing individuals to collapse as their muscles involuntarily contract. Yet this method of operation has raised concerns—voiced by researchers, advocates, and criminal defendants alike—that CEWs influence cognitive capacity in addition to muscle function as electric current potentially transits through the brain via the central nervous system. In the context of an arrest, this implicates …

The Iccpr, Non-Self-Execution, And Daca Recipients' Right To Remain In The United States, Timothy E. Lynch

Faculty Works

The United States is a party to the International Covenant on Civil and Political Rights (ICCPR). Article 12.4 states, “No one shall be arbitrarily deprived of the right to enter his own country.” Citizens clearly enjoy the rights of Article 12.4, but this Article demonstrates that this right reaches beyond the citizenry. Using customary methods of treaty interpretation, including reference to the ICCPR’s preparatory works and the jurisprudence of the Human Rights Committee, I demonstrate that Article 12.4 also forbids states from deporting long-term resident non-citizens – both documented and undocumented – except under the rarest circumstances. As a result, …

United States V. Lozoya: The Turbulence Of Establishing Venue For In-Flight Offenses, Daeja Pemberton

Texas A&M Law Review

The U.S. Constitution protects one’s right to a fair trial in a proper venue. Typically, venue is proper in whatever territorial jurisdiction a defendant commits an offense. But this rule is not as clear-cut when the offense takes place in a special jurisdiction, such as American airspace. A court must then determine whether the offense continued into the venue of arrival, making it proper under the Constitution. This issue was reexamined when Monique Lozoya assaulted another passenger on an airplane during a domestic flight. In United States v. Lozoya, the Ninth Circuit Court of Appeals failed to correctly identify …

Playing Politics With Executions Abuse Of Executive Discretion, Joanmarie Davoli

Faculty Scholarship

No abstract provided.

From The Legal Literature: Highlighting The Failure Of Criminal Courts To Adequately Test Machine Evidence, Francesca Laguardia

Department of Justice Studies Faculty Scholarship and Creative Works

No abstract provided.

Mempertanyakan Pancasila Sebagai Grundnorm: Suatu Refleksi Kritis Dalam Perspektif Fondasionalisme, E. Fernando M. Manullang

Jurnal Hukum & Pembangunan

Legal scholars in Indonesia discuss whether Pancasila is grundnorm or not. Grundnorm according to Hans Kelsen is the basis for validity of legal norms. Kelsen is therefore considered a foundational scholar according to Luc J. Wintgens. Meanwhile, in the view of foundationalism, certain foundation can be accepted if such foundation becomes belief. Thus, saying that Pancasila is basic norm or not, in the view of foundationalism shall answer whether Pancasila is a belief or not. Instead of continuing the debates whether Pancasila is a grundnorm or not, this article instead takes the pre-debates stands, namely reflecting critically the question Pancasila …

Forensic Searches Of Electronic Devices And The Border Search Exception: Movement Toward Requirement For Particularized Suspicion, Marissa Pursel

Akron Law Review

Under current federal law, government agents at the national border have broad discretion to search a traveler seeking to enter or exit the United States. While these government agents would generally need a warrant to conduct the same search elsewhere, searches at the border do not require any degree of suspicion. The policy argument that protects this practice is national security, recognizing the border’s vulnerability to physical threats such as the transportation of contraband and dangerous weapons. Current federal policy, however, makes no distinction between the search of a traveler’s suitcase and the search of her smartphone. The Fourth and …