Courts Commons^™

Reliance, Misplaced: Restoring The Text Of The Antifraud Provisions Of The Federal Securities Laws In Sec Enforcement Actions, Christopher R. Mills

University of Miami Business Law Review

The antifraud provisions of the federal securities laws are statutory sledgehammers. Those who violate them can face severe sanctions, including ruinous monetary penalties and others that can effectively bar firms and individuals from the securities industries. The Securities and Exchange Commission is authorized to enforce these provisions with the full weight of the federal government. And the SEC does so vigorously.

Even though the antifraud provisions target fraud, for decades lower courts and the Commission have held that the Commission can establish violations of them without any evidence that anyone was misled. They have done so by concluding that, unlike …

Brief For Amici Curiae Immigration Law Scholars In Support Of Petitioner-Appellee, Supporting Affirmance, Lindsay Nash

Amicus Briefs

Amicus curiae brief filed by immigration law scholars, including Cardozo School of Law Professor Lindsay Nash, in Herrera Avila v. Bondi. The brief examines the scope of mandatory immigration detention under the Immigration and Nationality Act and argues that 8 U.S.C. § 1225(b)(2)(A) applies to noncitizens seeking admission at the border rather than individuals apprehended within the interior of the United States.

De Novo Review For Asylum At The Circuit Court Level: Comparing A Stringent Standard Of Review For Asylum Seekers In The U.S. To The European Court Of Human Rights’ Standard, Dani Gómez

Human Rights Brief

On March 14, 2022, an immigration judge (IJ) denied the asylum applications of Douglas Humberto Urias-Orellana, Sayra Iliana Gamez-Mejia, and their child, ordering them removed to El Salvador. Urias-Orellana and his family had been placed in removal proceedings with

the Executive Office of Immigration Review (EOIR) and filed applications for asylum.  At the individual merits hearing, the IJ ruled that the threats were “insufficiently menacing” to constitute persecution. The Board of Immigration Appeals (BIA) affirmed. On further appeal, the First Circuit denied review, holding that courts may not re-evaluate the conclusions drawn from the factual findings de novo unless “any …

The Elusive Nexus Standard: Differing Approaches To The Asylum Nexus Standard As Applied To Religious Persecution Perpetrated By Gangs, Chloe Schalit

American University Journal of Gender, Social Policy & the Law

In 2015, Ms. Odalis Mireida Chicas-Machado, the secretary of an evangelical church in El Salvador, started getting harassed by members of the MS-13 gang during her walks to and from the church. Chicas-Machado believed that the harassment began because the gang considered her to be an enemy due to her work spreading the message of God to young people who otherwise might have joined the gang. Approximately one year after the harassment commenced, gang members threatened Chicas-Machado with death if she refused to alert the gang when police cars drove by a local store. The gang sought out Chicas-Machado for …

Ghostwriting The Government, Bridget C.E. Dooling

Marquette Law Review

Ghostwriting is when a writer prepares materials to be issued under someone else’s name. The word describes a politician’s use of a speechwriter, a student’s purchase of a term paper, or a tongue-twisted admirer asking a poet to craft a love letter on his behalf. It also happens inside organizations every day: staff draft documents for others “up the chain” to sign. But when legislators rely on staff and lobbyists to draft bills, when an agency head relies on staff or contractors to write a rule, and when a judge relies on her clerk for a draft opinion, the benefits …

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 …

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 …

Rewriting The Sentence: Second Look Sentencing In Rhode Island, Carter Hazzard

Roger Williams University Law Review

No abstract provided.

Reconstituting A Constitution, And A Republic: The Architecture Of Authoritarian Rule, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

A constitution can be remade without tearing it down, or even changing a single word. It is done by law.

“The judicial power is vested in one Supreme Court and in such inferior courts as Congress may establish,” whose “province and duty” it is to “say what the law is.” U.S. Const. Art. III §1; Marbury v. Madison, 5 U.S. 1 (Cranch) 137 (1803). It is not the power to remake the Constitution that grants it.

The Supreme Court is turning the inherited powers that hold power to law into instruments of its own aggrandizement. It is taking authority from …

Pricing Lies: Government Contracts And The False Claims Act, Fernando Mendoza López

Marquette Law Review

Courts have recognized the federal government’s use of government contracts not only as a commercial transaction but also as an instrument of policy. Governments routinely seek to promote small business interests, domestic industry, women-owned, minority-owned, and veteran-owned businesses. However, in cases of fraud involving these policy provisions, courts have consistently failed to recognize this dual nature of government contracts.

The intangible benefits that governments gain from these preferential policies complicate damage calculations for courts when dealing with fraud. Such complications have led to inconsistencies and the emergence of three main approaches. First, some courts have assessed that the government …

How The Supreme Court’S Inconsistent Approach To Granting Emergency Relief Will Exacerbate, Rather Than Mitigate The Disruption Its Emergency Stay Policy Is Supposed To Address, Harvey L. Reiter

Cardozo Law Review de•novo

The federal government has used the Supreme Court’s emergency or “shadow” docket to great effect this past year, securing stay after stay of lower court rulings that had blocked many of the President’s executive orders. But the Court’s rulings have come, almost invariably, without any explanation of its reasoning. And its opaque and uneven rulings have also come at a potential cost to the Court’s credibility. This Article illustrates the uneven nature of the Court’s rulings by contrasting two lines of cases: (1) the Court’s stays of lower court rulings restoring to their positions FTC, NLRB, EEOC, and MSPB members …

Recalibrating Deference In Sentencing, Meghana Nemali

Fordham Law Review

The U.S. Sentencing Commission (the “Commission”) is responsible for promoting consistency, transparency, and fairness in federal sentencing. In pursuit of this mandate, the Commission publishes the U.S. Sentencing Guidelines (the “Guidelines”), which are accompanied by official commentary. In Stinson v. United States, the U.S. Supreme Court endowed the commentary with controlling authority. However, nearly three decades later, the Court in Kisor v. Wilkie granted courts greater discretion in deciding whether to defer to the commentary. Moreover, in 2024, the Court eliminated the absolute deference regime for administrative agency determinations in Loper Bright Enterprises v. Raimondo. As a result, …

Bridging The Gap: Predictors Of Alignment Of Parent And Caseworker Perceptions Of Engagement, Jianchao Lai, Michelle I. Graef

Center on Children, Families, and the Law: Faculty Publications

This study examined predictors of alignment between parents’ and caseworkers’ perceptions of family engagement in child welfare services. Using data from 2,274 Alternative Response (AR)–eligible families randomized to AR or Traditional Response, engagement was assessed across the domains of Receptivity, Buy-in, Worker-family Relationship, and Mistrust using a modified Yatchmenoff (2005) scale. Multinomial logistic regression models identified factors associated with agreement and discrepancy between ratings of family engagement within the parent and worker dyad. While both parents and workers valued engagement, workers were more likely to provide higher overall engagement ratings, although the direction of discrepancy varied across specific subscales. Greater …

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 …

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 …

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 …

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 …

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 …

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 …

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 …

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 …

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 …

Red, White-, And Blue-Collar Crime: Federal Sentencing Practices Among White-Collar And Blue-Collar Offenders, Henna Judge

Fordham Law Review

Under the current federal sentencing regime, district courts exercise immense amounts of discretion when sentencing. Though strict adherence to the U.S. Sentencing Commission Guidelines (the “Guidelines”) was once mandatory, courts must now use these Guidelines as an advisory starting point and make a series of fact-specific determinations when sentencing a defendant. Though judicial discretion in this realm aids in preventing undue reliance on Guidelines-range recommendations that can lack nuance, it also invites bias.

In recent years, scholars and courts alike have called attention to a potential disparity in the way blue-collar and white-collar offenders are sentenced. This Note examines relevant …

Not So Firmly Settled: How The Inconsistent Jurisprudence Of The Firm Resettlement Bar Serves As A Tool For Asylum Seeker Exclusion, Caroline V. Garrido

Fordham Law Review

The firm resettlement bar to asylum, designed to limit protections to those without refuge elsewhere, has become a source of inconsistency, confusion, and exclusion in U.S. asylum law. Circuit courts have adopted two different approaches for determining whether an asylum seeker has firmly resettled in a third country. Despite the Board of Immigration Appeals’ attempt to unify these approaches through the introduction of a burden-shifting framework, courts remain divided, and there is no clear guidance on what constitutes firm resettlement. This Note argues that this lack of guidance has led to inconsistent court holdings and interpretations that conflict with the …

Doktrin Penyalahgunaan Hak (Abus Des Droit), Syukron Salam

Jurnal Hukum & Pembangunan

The present article examines the emergence of the doctrine of abus de droit in France in the mid-twentieth century through an analysis of key judicial decisions and the debates that followed them. The study commences with an exposition of the manner in which the evolution of capitalism, concomitant with the escalating economic disparity and the propagation of societal challenges, has influenced the judicial approach to the abstract Roman-law tradition of absolute rights. In light of this, the article contends that the civil-law tradition exhibited a fundamental flaw in its conceptualisation of rights as absolute, thereby overlooking objections that were firmly …

Politik Hukum Kedudukan Wakil Presiden Dalam Badan Pengarah Percepatan Pembangunan Otonomi Khusus Papua, Maleakhi Samuel Pasalli, Yamuna Nurafifah, Pranaldo Gunawan

Jurnal Hukum & Pembangunan

The legal policy regarding the amendment of Law Number 21 of 2001 into Law Number 2 of 2021 concerning Special Autonomy for Papua marks a paradigm shift from asymmetric decentralization towards controlled autonomy or leading to the centralization of power, notably through the establishment of the Steering Committee for Acceleration of Development of Special Autonomy for Papua (BP3OKP), which is chaired directly by the Vice President. This research is motivated by juridical issues wherein the Academic Paper (Naskah Akademik) of the amendment fails to provide scientific justification regarding the urgency of establishing this special body or the involvement of the …

Separation-Of-Powers Lochnerism, Andrea Scoseria Katz

Fordham Law Review

One hundred and twenty years ago, in 1905, the U.S. Supreme Court rendered one of the single most notorious opinions in history, striking down a New York labor law for violating the right to contract—a right found nowhere in the text of the Constitution. Though the era of Lochner v. New York is well past us, the judicial impulses that gave rise to the case remain. With a new champion in the Roberts Court, Lochnerism is alive and well, deployed in a new context to redefine the relationships between the president, Congress, federal agencies, and the courts.

Bringing together two …

Turbulence In The Courts: Jetblue Suffers From Faulty Antitrust Actions, Rudolph Veiga

Brooklyn Journal of Corporate, Financial & Commercial Law

Recently, the Department of Justice has become the leading force behind antitrust challenges against airline alliances and mergers. Unfortunately, it is difficult for someone to determine when the department will challenge an airline joint venture because the department has not consistently challenged all alliances or mergers over the last few years. JetBlue Airways defended itself against two different antitrust challenges by the department—one against the Northeast Alliance with American Airlines, and one against the acquisition of Spirit Airlines—and JetBlue lost both. The Department of Justice did not challenge the merger of Alaska Airlines and Hawaiian Airlines, which was finalized just …