Constitutional Law Commons^™

How The U.S. Constitution Shapes International Tax Law: Instrument Choice In Tax Agreements, Noam Noked, Young Ran (Christine) Kim, Reuven S. Avi-Yonah

Articles

The U.S. Constitution’s Treaty Clause, which requires Senate approval by a two-thirds vote for treaties, has significantly influenced the development of international tax law. This Article examines the implications of Senate supermajority requirements on bilateral and multilateral tax treaties and agreements, alternative instruments, relevant international tax standards, and global tax governance.

Historically, tax treaties have been approved exclusively as Article II treaties requiring Senate approval. The difficulty of entering into treaties with the United States has influenced the instrument choice and design of U.S. and international tax standards. To address this challenge, several U.S. and international tax reforms have employed …

Taxing The Architecture: A Structural Remedy For Disinformation In The Algorithmic Marketplace, Padmakshi Sharma

LL.M. Essays & Theses

This paper argues that the constitutional assumption that truth will prevail over falsehood in the marketplace of ideas has always depended on three structural preconditions. These conditions were: distributive parity for counter-speech, institutional segmentation of the information environment, and epistemic credibility signals that allowed non-expert audiences to distinguish authoritative from non-authoritative sources. Together, these conditions ensured that truth was granted a structural advantage sufficient to offset the harms of falsehood. Social media platforms have destroyed all of these conditions. The destruction is a consequence of an economic model organized around behavioral advertising and engagement maximization, which systematically amplifies disinformation over …

The Crisis Of Appropriations Law, Samuel R. Bagenstos

Articles

Appropriations law is a unique body of federal law.  Appropriations law imposes its own somewhat baroque set of statutory interpretation principles, approves of very broad delegations to the Executive Branch without meaningful limiting principles, and is often exempt from judicial review.  But perhaps that is all about to change.  Donald Trump’s historically aggressive challenge to Congress’s power of the purse has spurred an unusually large volume of exceptionally high-stakes appropriations law litigation. 

The potential implications go beyond the high-profile issues such as enforcement of the Impoundment Control Act.  In general, the unusual features of appropriations law are built on a …

No Exception For Ultra Vires Discrimination, Rev. James Deboer

American University Journal of Gender, Social Policy & the Law

The Ministerial Exception (“the Exception”) is an affirmative defense that religious institutions may use to obtain dismissal of discrimination claims brought by current and former ministerial employees.The Exception rests on the seemingly straightforward premise that churches and other religious institutions must be free to select and remove their own ministers without interference from secular laws.  It applies with equal force to any kind of discrimination; extends to harassment and retaliation; and is not confined to forms of alleged discrimination motivated by religious belief.

The Supreme Court has only addressed the Exception twice. First, in 2012, through Hosanna-Tabor Evangelical Lutheran Church …

The Ambiguity That Isn’T: Why Same-Sex Marriage Is Legal In American Samoa, Dante Cade Harootunian, Sammi Lawrence

American University Journal of Gender, Social Policy & the Law

After the U.S. Supreme Court ruled in Obergefell v. Hodges that prohibitions on same-sex marriage violate the equal protection guarantees of the U.S. Constitution, several government officials in American Samoa issued statements claiming that the decision had no effect in American Samoa, and, to date, no same-sex couples have

applied for a marriage license in the territory. This Article analyzes the Obergefell decision in light of other federal and territorial court decisions that determined the applicability of constitutional rights to U.S. territories and concludes that, despite the statements of local officials, the Obergefell decision applies in American Samoa, and the …

Why Dobbs Is No Roadmap For Deciding State Constitutional Abortion Issues, Daniel A. Small

American University Journal of Gender, Social Policy & the Law

In deciding that Fourteenth Amendment “liberty” does not protect a woman’s decision to end her pregnancy, Dobbs v. Jackson Women’s Health Organization sought to distinguish the precedent that Roe and Casey relied on to recognize an abortion right. The Dobbs majority claimed that this precedent did not support a right to abortion because, in its view, destroying a fetus is more immoral than the conduct at issue in those earlier cases. However, moral concerns about fetal destruction shed no light on the nature or characteristics of a woman’s liberty interest in an abortion decision. These concerns, therefore, cannot show whether …

What Is “The Nation’S History And Tradition?”: Using History To Redefine “Liberty” And Applying A New Deeply Rooted Test To Transgender Rights, Kaori Kawaguchi

American University Journal of Gender, Social Policy & the Law

INTRODUCTION: “In a Constitution for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad indeed.” In Roe v. Wade, the Court considered a woman’s liberty right to decide whether to continue a pregnancy or have an abortion and recognized the constitutional validity of a liberty right to abortion as part of the right to privacy. In Roe, the Court concluded, “[o]nly personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’ are included in the guarantee of a right of personal privacy.” Liberty should be “left to …

Nonviolent Felony Offenders And The Second Amendment: Reexamining Categorical Disarmament Laws In Light Of Bruen And Rahimi, Nikolay Belardi

American University Journal of Gender, Social Policy & the Law

INTRODUCTION: The Second Amendment ensures that “the right of the people to keep and bear Arms, shall not be infringed.” In a country with more civilian-owned firearms than people—and more gun dealers than McDonald’s, Burger King, Subway, and Wendy’s locations combined—it is no surprise that Americans pride themselves on their right to bear arms. However, a majority of the American population favors stricter gun laws and regulations, a position that seems sensible given that mass shootings are an all-too-familiar occurrence in the United States. The enshrinement of the right to bear arms in the Constitution limits the laws and regulations …

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 …

This Land Is Our Land: Creating Abortion Safe-Havens In Federal Enclaves Using The Nondelegation Doctrine, Callie Fucarino

American University Journal of Gender, Social Policy & the Law

In a post-Dobbs world, the legal status of abortion care is in the hands of the states. Healthcare providers and people seeking abortion care must either take legal risks or betray their morals and oath to care for their patients to follow the law in certain restrictive states. What remains in flux is the status of abortion rights on federal lands. There is currently no federal law that criminalizes abortion, but many states prohibit it. Within some states that have restricted abortion, there lie federal enclaves—certain specified land that the United States government owns, where federal law controls. At first …

Fundamental Rights Betrayed: How Pregnancy Exclusions In Advance Directive Statutes Silence Pregnant People’S Wishes, Molly Hill

American University Journal of Gender, Social Policy & the Law

INTRODUCTION: In 2013, Marlise Muñoz collapsed at her home and was rushed to the hospital, where the doctors informed her family that she had suffered a pulmonary embolism and was now brain-dead. Marlise had previously expressed to her family that she never wished to be kept on life support if she was left brain-dead, so her family wanted to honor her wishes. However, despite her irreversible brain death, because Marlise was fourteen weeks pregnant, Texas law required that her body remain on life-sustaining treatment until her fetus became viable. Her body lay in the hospital hooked up to machines against …

Kekuasaan Yudisial Dalam Sistem Demokrasi Konstitusional: Membangun Antitesis Dekonstitusionalisasi Dan Politisasi Peradilan, Tundjung Herning Sitabuana, Airlangga Surya Nagara, Dixon Sanjaya

Jurnal Hukum & Pembangunan

Strengthening idea of constitutional democracy as a transitional phase towards a modern rule of law requires one of main characteristics of an independent judiciary. Current phenomena demonstrate how utopian these conditions are as the judiciary becomes increasingly politically pragmatic, transactional, interdependent, and demoralized. At the same time, phenomenon of constitutional defiance is growing stronger with efforts to deconstitutionalize and politicize the judiciary. This study aims to explore the existence and legitimacy of the judiciary in constitutional democracy era against that phenomenon. The research was conducted doctrinally with a historical, conceptual, and comparative approach that was analyzed qualitatively. The results indicate …

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 …

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 …

Seven County Infrastructure Coalition V. Eagle County, Craig A. Rigdon

Public Land & Resources Law Review

The National Environmental Policy Act of 1969 is a landmark in United States environmental law. For more than half a century, under its authority, all federal agencies contemplating proposed actions that pose significant environmental impacts have incorporated an analysis of those impacts into their decisions. These analyses provided an avenue for opponents to challenge an agency’s final decision in federal court. Earlier this year, the Supreme Court issued a “course correction” to rein in the disparate approaches that the lower courts had applied to cases challenging federal agency decisions on NEPA grounds. The unambiguous guidance the Court lays out for …

Analisis Perluasan Makna Pasal 71 Ayat (1) Undang-Undang Pilkada Berdasarkan Putusan Pengadilan Negeri: Upaya Mewujudkan Keadilan Dalam Pilkada 2024, Supriyadi Supriyadi, Abdullah Iskandar

Jurnal Hukum & Pembangunan

The analysis and study of decisions is actually popular and developed in countries with common law systems, legal scholars, researchers and practitioners there place their court decisions as the primary object of legal study, which is why the existence of court decisions is the main benchmark in applying and shaping the law. In the context of legal development in Indonesia, the study of this decision has had a good place among legal scholars and researchers, this has been proven by the existence of several works produced focusing on the analysis of decisions, such as those popularised by the Judicial Commission …

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 …

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 …

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 Illusory Privilege Against Self-Incrimination, Kelsey Rohr

Arkansas Law Review

This Note addresses the insufficiency of the current system in protecting criminal defendants’ privilege against self-incrimination. Part II will outline the background legal principles of the issue, including the privilege against self-incrimination, the presumption of innocence, and the no-impeachment rule. This part will also address the Supreme Court’s sole judicial exception to the no-impeachment rule as laid out in Peña-Rodriguez v. Colorado. Part III will address the statistical significance of juror bias against criminal defendants who invoke the privilege, highlight the widespread nature of the bias, and argue that the procedural safeguards currently in place are insufficient to protect.

Status, Conduct, Belief, And Message: The Wedding Vendor Cases, Mark L. Movsesian

Chicago-Kent Law Review

No abstract provided.

Catholic Institutions And The Religion Clauses: Faith In A Liberal Democracy, Angela C. Carmella

Chicago-Kent Law Review

No abstract provided.

Can First Amendment "History And Tradition" Protect Both Sides In Polarized America?, Thomas C. Berg

Chicago-Kent Law Review

No abstract provided.

"Simple Accommodation": A Solution For Conflicts Between Religious Claims And Secular Law?, Laura S. Underkuffler

Chicago-Kent Law Review

No abstract provided.

The Ten Commandments In Louisiana Public Schools: A Study In The Survival Of Establishment Norms, Ira C. Lupu, Robert W. Tuttle

Chicago-Kent Law Review

No abstract provided.

Religious Liberty And The Constitution, Steven J. Heyman

Chicago-Kent Law Review

No abstract provided.