Constitutional Law Commons^™

Tindak Pidana Korupsi Oleh Partai Politik: Urgensi Dan Implikasi Hukum Terhadap Pembubarannya Dalam Sistem Ketatanegaraan Indonesia, Ivani Ananda, Alya Alania Basmine, Nadhira Putri

Jurnal Konstitusi & Demokrasi

Corruption has become an extraordinary crime that damages the integrity of the state and weakens the democratic system, including through the role of political parties that are supposed to be the main pillars of democracy. This research aims to answer the main question: can a political party be dissolved because it is proven to have committed a corruption crime? Using a normative-juridical research method, this paper examines the provisions in the Anti-Corruption Law, the Political Party Law, and the Constitutional Court Law and is associated with the e-KTP corruption case study. The results show that normatively political parties can be …

Rekonstruksi Paradigma Transfer Of Sentenced Persons: Antara Kepentingan Narapidana Dan Kepentingan Negara, Serta Implikasinya Pada Tata Kelola Transfer Of Sentenced Person, Fitra Arsil

Jurnal Konstitusi & Demokrasi

This article analyzes the paradigm shift in the Transfer of Sentenced Persons (TSP) from a regime oriented towards the rehabilitation and social reintegration of prisoners to a new configuration increasingly driven by state interests, such as national security, prison population management, immigration policy, budget efficiency, diplomatic calculations, and human rights image. Based on a legal-normative approach combined with institutional analysis and a comparison of practices in various jurisdictions, this paper shows how the principle of consensualism, initially interpreted as "trilateral consent" (the sentencing state, the receiving state, and the prisoner), has fragmented into three models: compulsory, voluntary, and hybrid, with …

Efektivitas Fungsi Pengawasan Dpr Di Tengah Dominasi Koalisi Gemuk, Muhammad Fawwaz Farhan Farabi, Muhammad Bagir Shadr, Irfan Khalis, Nurul Intan, Muhammad Akbar Hanafi

Jurnal Konstitusi & Demokrasi

This study examines the phenomenon of oversized coalitions in Indonesian politics and their impact on the legislative role in exercising oversight over the executive branch. In a democratic context, the presence of large coalitions in parliament is often associated with a diminished balance between the legislative and executive branches, particularly concerning the essential mechanism of checks and balances. The primary issue investigated is how this political configuration affects the effectiveness of parliamentary oversight, specifically regarding the monitoring of public policy implementation and government accountability. By employing a normative legal approach and analyzing specific public policy implementations, this research assesses the …

Rekonstruksi Mekanisme Seleksi Hakim Konstitusi Di Indonesia, Indah Sri Pangestu, Dwi Yuliani, Hertaty Dorothy Dewi Siburian

Jurnal Konstitusi & Demokrasi

The mechanism for selection and election of constitutional judges in Indonesia currently still shows a diversity of procedures in each proposing institution, namely the Supreme Court, DPR and President. The process implemented does not fully reflect the principles of transparency, participation, objectivity and accountability as mandated in the Law on the Constitutional Court. Therefore, it is necessary to standardize the procedures for selection and selection of constitutional judges to ensure a more professional system and integrity. One of the solutions offered is the establishment of an independent institution responsible for the selection and recruitment of constitutional judges with a system …

Mengenalkan Metode Empiris, Kuantitatif, Dan Eksperimental Dalam Penelitian Hukum Tata Negara, Yunani Abiyoso

Jurnal Konstitusi & Demokrasi

Almost all constitutional law research applies the doctrinal method to analyze normative texts and legal logic. In the context of the development of constitutional law, this method has limitations in evaluating the effectiveness of legal norms in societal reality. This article proposes the need for a paradigm shift in the use of constitutional law research methods, which should not only rely on a doctrinal approach but also integrate empirical methods, to align the needs of constitutional law studies with the dynamics of the Indonesian state after 25 years of constitutional amendments. There are three alternative methods that can be integrated …

Disclosures, Disclaimers, And Disinformation Advertising, Areeb Asif

Northwestern Journal of Law & Social Policy

Every regular internet user in the United States has been exposed to fake news at some point. Most of them, if not all, would agree that this problem needs a solution. Nevertheless, even as fake news has taken on unforeseen prominence in recent years, very little concrete action has been taken to curb its impact on American society. Some scholars have chalked this up to the Supreme Court’s expansive conception of the First Amendment, which makes it incredibly challenging to regulate political speech. Others posit that the problem is Section 230, which allows platforms to profit from fake news without …

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.

Société Des Casinos Du Québec Inc. V. Association Des Cadres De La Société Des Casinos Du Québec: The Supreme Court Of Canada Gambles On Liberal Voluntarism To Provide Meaningful Access To Collective Bargaining, Eric Tucker

All Papers

In April 2024, the Supreme Court of Canada (SCC) unanimously ruled that the exclusion of managerial employees from Quebec’s main statutory collective bargaining regime, combined with a failure to provide them with access to any other statutory labour rights, did not violate their constitutionally protected freedom of association. This decision raises many questions about the future of constitutional labour rights at the Supreme Court. In this brief comment I address what is arguably the biggest takeaway for workers such as the casino managers whose freedom of association is poorly or entirely unprotected by statutory rights: that despite the majority judgment’s …

“Quasi-Judicial”: A History And Tradition, By Beau J. Baumann & Jed H. Shugerman, Beau J. Baumann, Jed Handelsman Shugerman

Faculty Scholarship

“I do not say the office is either Executive or Judicial; I think it rather distinct from both, though it partakes of each, and therefore some modification, accommodated to those circumstances ought to take place.” – James Madison on the Comptroller, June 29, 1789

On Monday, December 8th, the Supreme Court will hear oral arguments in Trump v. Slaughter. The case presents a pivotal challenge to Humphrey’s Executor, the New Deal precedent underpinning so-called independent agencies. In Humphrey’s, the Hughes Court unanimously held that Congress could shield administrators from presidential removal if they exercised “quasi-judicial” or …

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 …

The Times They May Be A–Changin’: A Look Into Cuba’S Future For Property Rights And Restitution Through 3 Lenses, Patrick M. Denny

University of Miami Inter-American Law Review

After the 1959 Cuban Revolution, Fidel Castro took power and instituted a new regime that formed itself into a communist stronghold of the global south. With this new government came curtailment of private property rights, effectuated in government confiscation and limitation in private ownership opportunity. As many Cubans and foreign persons/entities had their residential, rural/agricultural, and commercial/industrial property confiscated, demands for restitution over the years has grown, particularly through US–led efforts. As Cuba has begun to soften to the idea of private property, as evidenced in its new 2019 Constitution, this Note seeks to analyze how property rights in Cuba …

Fundamental Fairness Guides The Supreme Court's Criminal Justice Decisions In The 2024-2025 Term, Sharon R. Fairley

ConLawNOW

During the 2024-2025 term, the Supreme Court decided fifteen cases related to the criminal justice system. These cases were brought by criminal defendants seeking post-conviction relief and civil litigants seeking redress for governmental harms arising out of criminal processes. Remarkably, two-thirds of the cases resulted in decisions favoring defendants or civil litigants opposing the government. This Article argues that the pro-defendant outcomes from this term are consistent with a recent trend in the Court’s decisions favoring defendants in these types of cases. The pro-defendant outcomes from the 2024-2025 term generally resulted from the less conservative justices aligning with the liberal …

Brief Of Edward A. And Doris Zelinsky In The Appellate Division, Third Department, New York Supreme Court, Edward A. Zelinsky, Doris Zelinsky

Amicus Briefs

To combat COVID, New York in 2020 forbade an out-of-state employee like the petitioner to commute into his New York office, forcing him to instead work at his home in Connecticut. New York now takes the remarkable position that it can tax the income Governor Cuomo forced this out-of-state employee to earn at his home exclusively outside New York. That position is as wrong as it sounds.

Both as a matter of New York law and of federal constitutional law under the Due Process and dormant Commerce Clauses, New York may not tax the income the petitioner earned exclusively at …

The Role Of First Amendment In Equal Protection And Affirmative Action Analysis: The Compelling Governmental Interest, Simona Grossi

UC Law Constitutional Quarterly

The Supreme Court’s decision in Students for Fair Admissions v. Harvard College has transformed the legal framework governing university admissions, sharply limiting race-conscious policies and compelling institutions to align their diversity objectives with the newly shaped heightened scrutiny under the Equal Protection Clause. Concurrently, the Trump administration’s broad-based attack on diversity, equity, and inclusion (DEI) programs—culminating in executive orders restricting race-conscious initiatives— has further intensified the legal and political pressure on colleges and universities striving to foster inclusive academic environments. This article contends that the First Amendment—particularly its protections of academic freedom and free speech—plays a critical and underutilized role …

(How) Is Plea Bargaining Justified?, Palma Paciocco

Articles & Book Chapters

No abstract provided.

The Quest For Budget Armor: Public Expenditures, Positive Rights, And Separation Of Powers In Washington's State Constitution, Kristen L. Fraser

Washington Law Review

In 2012, Washington’s landmark McCleary decision confirmed and expanded previous interpretations of the state constitution’s “paramount duty” clause, affirming a vital positive right to education and a judicial willingness to enforce it against the other branches. Notwithstanding a tense six-year period of judicial supervision after the ruling, ultimately the state legislature enacted broad education funding reforms and the appropriations and revenues to implement the additional resources for schools. Given competition among stakeholders for public funding for state programs, in the post-McCleary period, other litigants have asked courts to find similar positive constitutional rights to state services and funding. So …

The High Cost Of Law School Casebooks, Jeffrey Bellin

William & Mary Bill of Rights Journal

Commentators have forecasted the demise of high-priced commercial casebooks for two decades. Yet little has changed. This Symposium Essay explores the headwinds facing free and low-cost books in the law school casebook market. It suggests that the biggest problem is “casebook selection inertia.” Given the centrality of the assigned casebook to a typical law school course, professors face strong incentives to make a safe choice from among the leading casebooks—typically those published by the handful of established academic presses who set the highest prices. These choices stick, not only determining the book that will be used for that professor’s future …

Should The Army Be Involved In Divorce? Re-Examining The Pre-Divorce Defaults For Spousal Support, Artem M. Joukov, Thomas Godfrey

MC Law Review

Army Regulation 608-99 assigns a large portion of a Soldier’s paycheck to the spouse upon marital separation. The assignment occurs without a hearing, discovery, or consideration of critical evidence which might moderate the amount of support. The obligation rests on the Soldier to obtain a court order or spousal agreement to reduce the financial burden. The adversarial nature of modern divorces renders these requirements unrealistic. Amending the regulation would ease the burden of the Soldier, which is desirable in light of the ongoing recruitment crisis and the need to attract recruits and retain those already in the service.

Foreword

UC Law Constitutional Quarterly

No abstract provided.

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 …

Who Counts As A "Reasonable Employee"? The Third Circuit's Bungling Of Section 8(A)(1) Violations, Ben Milstein

Washington Law Review

The National Labor Relations Act (NLRA) protects private employees’ right to unionize and collectively bargain with their employers. Section 7 of the NLRA guarantees employees the right to self-organize labor unions, while section 8 outlines numerous unfair labor practices. Specifically, section 8(a)(1) bans employer interference, coercion, or restraint of any section 7 rights. In a 2022 case, FDRLST Media v. NLRB, the Third Circuit Court of Appeals reversed a National Labor Relations Board (NLRB) finding that FDRLST Media’s executive officer’s tweet constituted a section 8(a)(1) violation. This Comment examines the history of section 8(a)(1) violations, specifically discussing the widely …

The Supreme Court Of India's Use Of Inherent Power Under Article 142 Of The Constitution: An Empirical Study, M. P. Ram Mohan, Sriram Prasad, Vijay V. Venkitesh, Sai Muralidhar, Jacob P Alex

National Law School of India Review

The Constitution of India under Article 142 grants the Supreme Court of India broad inherent powers to do complete justice. The contours of these inherent powers and what it means to achieve complete justice were left to the Supreme Court to determine on its own. In this paper, we empirically examine all the Supreme Court cases from its inception in 1950 till 2023 which use the term “Article 142” or “complete justice.” We found 1579 cases, which were then hand-coded for many variables such as the nature of the case, where the case was appealed from, the temporal distribution, the …

Shielding Freedoms: State Noncooperation In Hunts For Evidence And People, Mary D. Fan

Washington Law Review

The nation is fracturing into a patchwork of rights and punishment. What some states and localities safeguard as rights, other jurisdictions are criminalizing and punishing. As the divides in rights and punishment deepen, some states are becoming sanctuaries for freedoms penalized elsewhere and enacting shield laws prohibiting cooperation with criminalization and punishment states. A prime example is shield laws protecting people seeking to exercise reproductive rights or obtain gender-affirming care. Major jurisdictions for healthcare and technology-related businesses, such as Washington, California, New York, and Massachusetts, have enacted shield laws that prohibit law enforcement and companies from complying with subpoenas seeking …

Foreword: Casebooks And The Choices That Shape Constitutional Law, Sanford Levinson, Caroline Olsen

William & Mary Bill of Rights Journal

This collection of essays is the product of a conversation between the two co-authors of this Introduction. It occurred toward the conclusion of a very illuminating Symposium at William & Mary Law School in March 2024 on Jack Balkin’s latest book, Memory and Authority, on the role that memory plays in our notions of law. Caroline was the incoming Editor-in-Chief of the William & Mary Bill of Rights Journal, which had sponsored the Symposium. Sandy was a participant in the Symposium. Jack is a very close friend with whom he has coauthored at least two dozen articles and …

Casebooks, Canons, And Constitutional Memory, Jack M. Balkin, Sanford Levinson

William & Mary Bill of Rights Journal

Casebooks on constitutional law take a lot of time and effort to prepare. What is the point of bothering to edit one? There are several possible reasons. First, you might want to make money from sales. For the vast majority of law professors, the financial return to the hours spent organizing and editing cases is simply not worth it. Second, you might be the sort of person who just likes to do things by yourself. If you are going through the bother of preparing your own materials, then why not publish them and possibly influence others as well? Most law …

What Is The Measure Of Success For A Constitutional Law Casebook?, Erwin Chemerinsky

William & Mary Bill of Rights Journal

In this Essay, I want to address four topics: how I came to write my constitutional law casebook; my goals for my Constitutional Law class and how the book facilitates achieving them; the challenges in writing a constitutional law casebook; and thoughts about the future of constitutional law casebooks.

There are many different constitutional law casebooks on the market because there are countless different ways of teaching the subject. There is no right way or best way to teach this or any other subject in the law school curriculum. I am describing my approach to teaching a subject that is …

Overruled Cases As A Tool For Inculcating Legal Realism, Michael C. Dorf

William & Mary Bill of Rights Journal

The changes wrought by Dobbs and Students for Fair Admissions v. President and Fellows of Harvard College (SFFA) are hardly the only examples of momentous changes to constitutional law in the last few years. Doctrines involving the religion clauses of the First Amendment, the Second Amendment, the scope of the president’s removal power, and much more have been changing rapidly since Amy Coney Barrett replaced Ruth Bader Ginsburg in the fall of 2020, thereby solidifying a conservative supermajority on the Supreme Court. I imagine that the strengthening of the major questions doctrine, the overruling of Chevron deference to federal administrative …

Teaching Firearms Law: One Big Opportunity And Three Pedagogical Challenges, Joseph Blocher, Jacob D. Charles, Darrell A.H. Miller

William & Mary Bill of Rights Journal

The U.S. Supreme Court’s groundbreaking 2008 decision in District of Columbia v. Heller ushered in a new era for the Second Amendment: one in which the right to keep and bear arms, long dormant as a matter of practical impact and even “embarrassing” as a matter of legal scholarship, vaulted into the front ranks of constitutional law. The Court itself has only revisited the Amendment a few times since then—albeit once by revolutionizing the doctrine. Meanwhile, lower courts have issued thousands of decisions giving shape to the right, while scholars have generated work that is increasingly deep, diverse, and challenging. …