Constitutional Law Commons^™

From Dred Scott To Barbara: Birthright Citizenship, Racial Exclusion, And The Enduring Promise Of The Fourteenth Amendment, Jenna A. Milbrodt

CMC Senior Theses

The Fourteenth Amendment’s Citizenship Clause has guaranteed birthright citizenship to all children born in the United States for hundreds of years. Yet, President Trump’s January 20, 2025, executive order threatens to strip that right from children born to parents unlawfully in the country and temporary visitors. This order, if permitted to stand, would change the definition of US citizenship and render countless children stateless persons without citizenship rights. This paper examines whether birthright citizenship in the US, properly understood, extends to children of unlawful immigrants and temporary visitors. To answer this question, three time periods of change in citizenship rights …

The Unilateral Reinterpretation Of The Treaty Of Waitangi: Analyzing The Treaty Principles Bill And Its Impact On Māori Sovereignty, Jason Kehoe

American University International Law Review

This comment examines New Zealand’s compliance with the Treaty of Waitangi and the United Nations Declaration on the Rights of Indigenous Peoples by examining the countries treatment of Māori following the introduction of the Treaty Principles Bill and comparing the nations treatment of these groups to similarly situated nations. This comment analyzes the legal and moral duties imposed by the UNDRIP and ILO Convention 169 and the criticism New Zealand has faced for its pushback against the principles originally enshrined in the Treaty of Waitangi. This comment will first provide background on the treatment of Māori in New Zealand following …

Missing The Right(S) Point: How Australia’S Social Media Ban Fails Children And The Case For A Holistic Rights-Based Approach To Online Safety, Ying Chen

American University International Law Review

In December 2024, Australia rewrote the rules of growing up. Children under sixteen may learn to drive, open a bank account, and even face criminal charges—yet the Australian Government considers them too young to scroll through Instagram or send a Snapchat. With the enactment of the Online Safety Amendment (Social Media Minimum Age) Act 2024, Australia became the first country to introduce an outright ban on social media access for those under sixteen. This bold legislative move has attracted global attention, with several countries reportedly considering similar measures. Through a critical analysis of Australia’s social media ban, this article provides …

Prison Labor Exploitation, As Easy As “Pie”: Private Industry Exploitation Under Pie Certified Prison Work Programs, Jack Burum

Roger Williams University Law Review

No abstract provided.

Imprisoned Without A Verdict: The Constitutional Crisis Of Pre-Trial Solitary Confinement, Symone R. Gibbs

Washington and Lee Journal of Civil Rights and Social Justice

Kalief Browder’s name endures as a chilling reminder of the human cost of pre-trial solitary confinement. His story reveals the constitutional paradox and moral failure at the heart of this practice: Individuals who remain legally innocent are subjected to one of the harshest punishments the state can impose. This practice strips people of their liberty twice over, first through incarceration itself, and again through prolonged isolation that inflicts devastating psychological harm. Despite its severity, the use of solitary confinement against pre-trial detainees remains largely overlooked in legal scholarship and reform, even as it undermines the presumption of innocence, exacerbates systemic …

Rights Retained: Constitutional Protections For Incarcerated Persons In U.S. Prisons, Alison J. Brochu, Olivia F. Johnson

Roger Williams University Law Review

No abstract provided.

Let’S Talk About The Biological Reality Of Sex, Baby, John Parsi

FIU Law Review

Sex is at the very core of individual identity. It affects the conception of the self and the way others view the individual. Every day, one’s sex may open and close doors, access to communities, and opportunities. Laws that define sex may affirm scientific knowledge and protect people, or threaten to unravel the facts and the reality of sex. A deep unmooring of sex is underway, and this Article aims to halt it. On day one of the current presidential term, January 20, 2025, President Trump signed an Executive Order on “Defending Women from Gender Ideology Extremism and Restoring Biological …

Cruel And Unusual Punishments And The Constitutional Status Of The Idea Of Progress, R. George Wright

FIU Law Review

To this point, we have developed some idea of what progress might have meant to the constitutional Framers, ratifiers, and later judges. We need not attempt the fruitless task of doing any precise head count of the variations of the concrete meaning, perceived likelihood, or value of progress among those parties. Doubtless some persons were more optimistic than others.178 But we need only assume that enough constitutional Framers, ratifiers, and judicial interpreters sufficiently shared any mainstream understanding of progress. Any such constitutional legitimacy of the idea, or the multiple ideas, of progress licenses the language of progress embraced in Trop.

Comparing Access To Land: Drawing Parallels In Diverse Jurisdictions, Helena Alviar Garcia, Anamaría Muñoz Rincón

FIU Law Review

By exploring the intersection between transitional justice initiatives and transformative constitutionalism, this article proposes that fruitful comparative study covering similarities and differences between diverse definitions of property—challenges and possibilities of accessing it and the main characteristics of the disputes over it—in four jurisdictions can be advanced. A close examination of the classic liberal paradigm framing the transitional process reveals the ways in which a progressive and justice-driven understanding of property falls short in all the countries considered. To examine this, we look at how property clauses, substantively and procedurally, are construed in transformative constitutions sitting at the heart of the …

Legislative Support Of Religious Policy In Ukraine Under Martial Law, Volodymyr Karpunets, Andrii Shevchuk, Oleksandr Bilchuk

Occasional Papers on Religion in Eastern Europe

The article examines the legislative framework of Ukraine's religious policy under the conditions of martial law caused by the full-scale armed aggression of the Russian Federation. The constitutional foundations of state-confessional relations are analyzed, particularly the provisions of Article 35 of the Constitution of Ukraine on freedom of conscience and religion, as well as Article 64, which provides for the possibility of temporary restrictions on religious rights under martial law. Key legislative acts are reviewed: the Laws of Ukraine "On Freedom of Conscience and Religious Organizations" (1991, with amendments in 2018 and 2019), "On the Legal Regime of Martial Law" …

Who Makes The Jury? Demographics And Decision-Making In The Jury Process., Ana B. Pons

Honors Undergraduate Theses

Within the American judicial system, juries have played a central role in promoting representation and fairness in the courtroom. However, limited information exists on whether prosecutorial decisions during jury selection, jury composition, or jury behavior differ based on the sex, race/ethnicity, type of case, political ideology, or geographic location of potential jurors. Following PRISMA guidelines, this scoping review synthesizes 48 peer-reviewed articles published between the 1940s and 2026 to examine whether prosecutorial decision-making and jury outcomes vary based on the sex, race/ethnicity, type of case, political ideology, or geographic location of potential jurors. Findings indicated that men are disproportionately selected …

The Reception Of International Human Rights Law In Charter Litigation: "Not A Box Of Chocolates" But You Still "Never Know What You're Gonna Get", Karinne Lantz

Articles, Book Chapters, & Popular Press

This article explores the reception of international human rights law(IHRL)in Canada. Focusing on the Charter context, it demonstrates that how IHRL applies in Canada continues to lack clarity despite repeated (and recent) efforts by the Supreme Court of Canada to provide it. This article argues that this lack of clarity is an important matter for the Court to address, particularly as IHRL is increasingly being invoked before courts and other tribunals around the world. It argues that the Court should adopt a methodology that: (i) endorses the “Dickson Doctrine,”according to which the “minimum protection approach”is robustly applied for international human …

Examining Reproductive Equity In The Post-Roe United States, Yali Pang, Anna Grace Causey, Nakeina E. Douglas-Glenn, Research Institute For Social Equity Rise

Research Institute for Social Equity

Four years after the U.S. Supreme Court overturned Roe v. Wade, state-level variation in reproductive rights policy is associated with substantial geographic inequities in access to abortion and reproductive health care across the United States. The adoption of restrictive or protective reproductive rights policies is closely tied to legislative control, underscoring the political drivers of reproductive inequity. The evidence suggests that advancing reproductive equity will require coordinated national, state, and local response to strengthen healthcare infrastructure, reduce economic barriers, and establish durable legislative protections for reproductive rights.

Kedudukan Hukum Eks-Kreditor Pasca Debt To Equity Swap Yang Dihomologasi Dalam Pkpu Kedua Dan Kepailitan Debitor Akibat Pembatalan Perdamaian, Reza Rahmawati

Jurnal Hukum & Pembangunan

Debt to Equity Swap (DES) under a composition plan in Suspension of Debt Payment Obligations (PKPU) proceedings constitutes a restructuring mechanism that transforms the legal status of a Creditor into that of a shareholder upon homologation. Legal issues arise when The Debtor subsequently enters a Second PKPU due to newly incurred debts or is declared bankrupt following the annulment of the composition, while Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment does not expressly regulate the legal consequences of a DES under such circumstances. This normative legal research aims to analyze the legal standing and legal …

Constraining Citizenship: Presidential Threshold In Indonesia’S Judicial Framework, Arfan Yanayir Akbar Sabillilah

Jurnal Hukum & Pembangunan

This research critically evaluates the constitutionality of Indonesia's Presidential Threshold as regulated by Article 222 of Law No. 7/2017, requiring political parties or coalitions to secure 20% of DPR seats or 25% of national valid votes for presidential nominations. The term “Presidential Threshold” follows Constitutional Court jurisprudence, distinguishing it from the election threshold in Article 6A(3) requiring 50%+1 votes to win the presidency and the parliamentary threshold in Article 414 requiring 4% of votes for legislative seat allocation. Through normative legal analysis of Constitutional Court decisions No. 51-52-59/PUU-VI/2008, 53/PUU-XV/2017, and 62/PUU-XXII/2024, this study examines 33 judicial reviews from 2017 to …

Dualisme Tujuan Pembebanan Uang Pengganti: Analisis Putusan Angelina Sondakh Di Berbagai Tingkat Peradilan, Valencia Puspa Novandra Ali, Tamsil .

Jurnal Hukum & Pembangunan

Studi ini meneliti perbedaan interpretasi dan penerapan hukuman tambahan berupa restitusi (uang pengganti) dalam kasus korupsi melalui analisis komparatif keputusan Angelina Sondakh di pengadilan tingkat pertama, pengadilan banding, pengadilan kasasi, dan pengadilan peninjauan yudisial. Muncul interpretasi ganda antara memandang restitusi sebagai kompensasi atas kerugian keuangan negara dan sebagai mekanisme untuk menyita keuntungan ilegal. Judex facti menolak penerapan restitusi dengan alasan bahwa tidak terjadi kerugian negara dalam kasus suap dan gratifikasi, sementara judex juris di tingkat kasasi menafsirkan restitusi sebagai instrumen pemulihan aset yang ditujukan untuk keuntungan yang diperoleh secara ilegal. Orientasi konseptual yang bertentangan ini menghasilkan perbedaan signifikan dalam penjatuhan …

Kedudukan Putusan Peradilan Etik Sebagai Keputusan Tata Usaha Negara: Studi Kasus Gugatan Hakim Konstitusi Anwar Usman, Satrio Febriyanto

Jurnal Hukum & Pembangunan

As an effort to concretize ethics, there is a process of formalizing ethics into a set of rules through a code of ethics. The code of ethics needs institutional enforcement instruments so that it can be effectively applied through ethical trials. Ethical courts, as institutions that adjudicate violations of the code of ethics, have the authority to issue decisions as a follow-up to cases of violations of the code of ethics that they handle. In carrying out its duties, ethical courts use ethical and moral analysis to assess the appropriateness of an action. This analytical approach differs from legal decisions …

Tinjauan Frasa “Setiap Orang” Dalam Pasal 3 Ayat (1) Peraturan Pemerintah Nomor 56 Tahun 2021 Tentang Pengelolaan Royalti Hak Cipta Lagu Dan/Atau Musik, Fajar Hidayansyah Ilham, Luna Dezeana Ticoalu

Jurnal Hukum & Pembangunan

Copyright is one form of legal protection for intellectual works, occupying an important position within the intellectual property law system. The Copyright Law explicitly grants exclusive rights to creators, encompassing both moral rights and economic rights. Economic rights, as stipulated in Article 9 paragraph (1), allow creators to obtain economic benefits from their works, ranging from publication, reproduction, distribution, performance, to communication to the public. This provision shows that creators hold a primary position as legal subjects entitled to protection, while also serving as central actors in the creative industry ecosystem. In practice, the mechanism for copyright protection requires implementing …

Penggunaan Metode Socrates Dalam Mengembangkan Pendidikan Tinggi Hukum Di Indonesia, Syarifah Lisa Andriati, Inneke Kiki Rizki, Ain Najwa Binti Mohd Malian

Jurnal Hukum & Pembangunan

The ability to think critically and have the ability as a problem solver is needed in higher education Law in Indonesia. One of the methods used is the Socratic Method. Critical thinking is one of the aspects that law students must have to improve their ability as problem solvers. This research was conducted to contribute that the application of the Socratic method is effective to be applied in the learning process of higher education in Indonesia, as well as to provide evaluation and knowledge about the challenges and obstacles that will be faced in the process of applying the Socratic …

Tapera: Melindungi Hak Atas Tempat Tinggal Atau Mengancam Kehidupan Yang Layak, Elizabeth Jeneva Samuella, Ida Susanti

Jurnal Hukum & Pembangunan

This study examines the People's Housing Savings (TAPERA) policy in the context of protecting the right to adequate housing and its impact on the decent living conditions of workers. Under TAPERA regulations, all workers are required to set aside a portion of their salary, including those who already own a home. While this policy aims to improve access to adequate housing, it raises questions about its impact on purchasing power and the fulfillment of other basic needs. The study employs an interdisciplinary approach using socio-legal methods to evaluate whether the mandatory TAPERA contributions can be considered a violation of the …

Mogok Kerja Tenaga Medis: Problematika Pada Uu Ketenagakerjaan Dan Pilihan Model Pengaturannya, Rama Agung

Jurnal Hukum & Pembangunan

The issue of healthcare workers' strikes remains complex in terms of regulatory frameworks. On one hand, there is a conflict of interest between public interest in access to healthcare services and, on the other, the Labor Law, which regards the right to strike as a fundamental right of workers, integral to collective bargaining. This paper examines the challenges in regulating healthcare workers' strikes by analyzing Article 139 of the Labor Law and exploring regulatory models that support the provision of high-quality healthcare services. The findings highlight several key points. First, Article 139 of the Labor Law does not yet provide …

Lahirnya Tensi Metafisik Di Urat-Leher Projek-Projek Interpretasi Konstruktif, Herman Bakir, Mukhtasar Syamsuddin

Jurnal Hukum & Pembangunan

This project is a legal hermeneutics. The aim is to elaborate the paradigm of the law as integrity theory, Ronald Dworkin’s work, which has received recognition as one of the most influential philosophical systems in the world of law throughout the last century. The issues discussed are divided into three subjects: (1) the interpretation role in legitimizing “law” as a corpus that has a “soul”; (2) a concept of interpretation from the womb of the law as integrity theory; (3) the dual capacity of “constructive interpretation” in [a] “returning” law to its roots; and [b] housing “morals” within the body …

Diskursus Kriminalisasi Pemidanaan Terhadap Pemberi Gratifikasi, Muhammad Fatahillah Akbar

Jurnal Hukum & Pembangunan

This article aims to examine the legal basis to prosecute gratifiers in Indonesian Corruption Justice System. Samin Tan as the giver of gratification to Eni Maulani Saragih had been acquitted by the Corruption Court of Jakarta Decision Number 37/Pid.Sus-TPK/2021/PN.Jkt.Pst on 30^th August 2021. Then, the Cassation to Supreme Court had also been rejected by Supreme Court Decision Number 2205 K/Pid.sus/2022 on 9^th June, 2022. Hence, Samin Tan stays acquitted. The decision majorly focuses on the “absence” of law which criminalizes gratifiers or gratification givers. Therefore, this article elaborates how similar cases shall be handled in the future. In …

The Equity Dead Zones: Legal Intersectionality Failure Points In Chapter 13 Bankruptcy, Tearria N. Simmons

The Guardianship Journal

Legal intersectionality failure points describe the systemic fractures that occur where overlapping legal, social, and economic inequalities converge, potentially producing compounded barriers to relief. Each failure point marks a site of marginalization. In what ways do individuals already recognized as vulnerable in Chapter 13 bankruptcy face a heightened risk when multiple forms of disadvantage intersect? When these intersections combine in mutually reinforcing ways—racial, economic, and relational disparities colliding with structural deficiencies in family, property, and bankruptcy law—does it result in pronounced negative outcomes, and, if so, what are those outcomes? Within this convergence, could there be a space where compounded …

Pembuktian Sederhana Dalam Proses Kepailitan Terhadap Perusahaan Pengembang Pasca Surat Edaran Mahkamah Agung Nomor 3 Tahun 2023, Maya Iswandi

Jurnal Hukum & Pembangunan

Abstract

After the issuance of Sema No. 3/2023, there were various pros and cons to its implementation. This is because the sema has limited and in quotes has protected development companies from bankruptcy proceedings. Sema No. 3/2023 provides immunity to development companies from bankruptcy because they are deemed not to meet the simple proof that must be met in the bankruptcy process. This provision seems to deny the judicial system that should determine the evidence in a case. This certainly causes degradation of legal certainty and consumer protection. Therefore, this research will discuss simple proof in development companies after the …

Greenhat’S Greenlight To The Cftc: The Case For A Jurisdictional Shift Of Financial Transmission Rights From The Federal Energy Regulatory Commission To The Commodity Futures Trading Commission, Timothy K. Shaw Ii

DePaul Business & Commercial Law Journal

Regional Transmission Organizations and Independent System Operators are a relatively new platform to buy and sell wholesale electricity and transmission service of that electricity. These groundbreaking organizations have been around since 1996 after the Federal Energy Regulatory Commission (“FERC”) issued Order 888. FERC regulates the physical electricity wholesale sale and transmission service market managed by a Regional Transmission Organization (“RTO”) or Independent System Operator (“ISO”),through its Federal Power Act mandate. Many RTOs and ISOs offer a product called a Financial Transmission Right (“FTR”). Traditionally, FTRs assist the holder by providing price certainty, or a hedge, in the capacity market. This …

Choosing The Best Entity For Investments Trading After Understanding The Tax Limitations And Restrictions, Ray A. Knight, Joseph Lakatos

DePaul Business & Commercial Law Journal

The trading of various securities is subject to market rules. However, when securities trading is completed within a business entity, the entity is subject to tax limitations and restrictions. The tax benefits cannot be the dominant purpose for the entity structure; economic substance including profit motive and business purpose for each transaction must be able to be shown.

The trading of investment securities must be housed in the right entity to gain the best economic results as well as to minimize the tax burden. The entity selection process must first consider the characteristics and nature of the securities (e.g., currencies, …

Volume 23 - Front Matter

DePaul Business & Commercial Law Journal

No abstract provided.

Eyes Everywhere: Unpacking The Digital Surveillance State In Mexico And The Legal Blind Spots, Danielle Mena

University of Miami Inter-American Law Review

This article examines the rise of digital surveillance in Mexico and its implications for privacy, human rights, and democratic governance. Despite constitutional and legislative protections guaranteeing personal privacy and freedom of expression, Mexico has developed one of the most extensive surveillance systems in the Americas. Through tools such as Pegasus spyware and the C5 urban surveillance network, government agencies have expanded their monitoring capabilities, often under the guise of national security. However, the misuse of these technologies against journalists, activists, and political dissidents reveals legal and institutional deficiencies. The article analyzes the evolution of Mexico’s digital surveillance infrastructure, identifies the …

From Winans To Wallahee: Treaties, The Washington State Supreme Court, And The Pursuit Of A More Just Rule Of Law, Monte Mills

Washington Law Review

The relationship between the United States federal government, the states, and Native Nations has long been at the core of federal Indian law. From the earliest decades of its jurisprudence, for example, the United States Supreme Court struggled in its efforts to analyze and define the rights, authorities, and interactions of Native Nations within and in relation to the evolving structure of constitutional federalism. Treaties between the United States and Native Nations were central to those decisions and provided a necessary, constitutional check against state interests intent on eliminating sovereign Native Nations. Those constitutional and structural implications thus go well …