Courts Commons^™

Catalyzing Judicial Federalism, Adam B. Sopko

Publications

No abstract provided.

Catch And Release Jurisdiction, Adam B. Sopko

Publications

No abstract provided.

The Paradox Of Juridical Secularism: An Illustration Through The Cases Of Sabarimala And Hijab, Sukriti .

National Law School Journal

Secularism in India was imagined in cognisance of religion's entrenchment in the public life of the country as well as in people’s identities. This form of secularism was made possible within the Constitution of India through a broad framing of religious freedoms that was limited by statist concerns such as public order, morality, and health. In the face of rising majoritarianism, secular values are under serious challenge, impacting the right to religious freedom and expression. In the face of this challenge, this article assesses the judiciary’s engagement with religion on issues of discrimination against women. The article contends that the …

Towards A Monist Constitutional Ideology? In Re: Article 370 Of The Constitution, Subordination Of Jammu And Kashmir, And The Supra-Constitutional Presidential Power, Zaid Deva

National Law School Journal

This case comment shows how the fascination for a certain form of a monist constitutional order, first articulated by the opposition during the Nehru years, was institutionalised in the form of a judicial discourse, culminating in the Article 370 judgement. At the heart of this discourse lay two imaginaries: (i) a subordinated Jammu and Kashmir (J&K) and (ii) an unbounded or supra-constitutional power vested in the Indian president to deal with J&K, freed of the express conditions precedent laid down in the proviso to Clause 3 of Article 370. In this case comment, I trace the continuities between these monist …

Religious Convictions, Anna Offit

Faculty Publications

The Anglo-American jury emerged at a time when legal and religious conceptions of justice were entwined. Today, however, though the American public remains comparatively religious, the country’s legal system draws a distinction between legal and religious modes of determining culpability and passing judgment. This Article examines the doctrine that governs the place of religious belief and practice in U.S. jury selection proceedings. It argues that the discretion afforded to judges with respect to applying the Batson antidiscrimination doctrine has given these beliefs and practices an ambiguous status. On the one hand, judges aim to protect prospective religious jurors from discrimination. …

Taxes, Administrative Law, And Agency Expertise: Questioning The Orthodoxy, Scott Schumacher

Articles

One of the foundations of administrative law is that federal agencies and their employees are experts in their respective fields. In addition, the many judgments and decisions made by these experts are based on a thorough record after extensive factfinding. As a result, so the theory goes, courts, particularly courts of general jurisdiction like the United States District Courts, should give deference to the determinations made by these experts. But what if the facts underpinning this foundation are not true in all cases? Should courts nevertheless provide deference to decisions by agencies when it is evident that an agency's determinations …

Due Process Deportations, Angelica Chazaro

Articles

Should pro-immigrant advocates pursue federally funded counsel for all immigrants facing deportation? For most pro-immigrant advocates and scholars, the answer is self-evident: More lawyers for immigrants would mean more justice for immigrants, and thus, the federal government should fund such lawyers. Moreover, the argument goes, federally funded counsel for immigrants would improve due process and fairness, as well as make immigration enforcement more efficient. This Article argues the opposite: Federally funded counsel is the wrong goal. The majority of expulsions of immigrants now happen outside immigration courts— and thus are impervious to immigration lawyering. Even for those who make it …

Due Process Junior: Competent (Enough) For The Court, Tigan Woolson

Journal of Law and Health

There are many reports presenting expert policy recommendations, and a substantial volume of research supporting them, that detail what should shape and guide statutes for juvenile competency to stand trial. Ohio has adopted provisions consistent with some of these recommendations, which is better protection than relying on case law and the adult statutes, as some states have done. However, the Ohio statute should be considered a work in progress.

Since appeals courts are unlikely to provide meaningful review for the substance of a juvenile competency determination, the need for procedures for ensuring that the determination is initially made in a …

Rethinking Patent Law's Exclusive Appellate Jurisdiction, Christa Laser

Cleveland State Law Review

The United States Court of Appeals for the Federal Circuit was created in 1982 to unify and clarify patent law, inter alia. It was built from political compromise after the Hruska Commission, which studied the caseload crisis in the federal appellate courts in the 1970s, initially recommended creation of a new National Court of Appeals that would exist between the regional federal appellate circuits and the Supreme Court. The Federal Circuit judges admirably implemented these functions for four decades.

However, the initial function of the Federal Circuit might no longer be as needed in the current judicial climate. The environment …

Kedudukan Dan Urgensi Tempuh Upaya Administratif Dalam Pemeriksaan Dismissal Process Oleh Ketua Pengadilan, Rizky Ramadhan Baried

Jurnal Hukum & Pembangunan

This article analyzes administrative effort (AE) in the relation of Article 62 Law 5/1986 with Article 75 Law 30/2014 and Article 2 SCR 6/ 2018. The legal questions are: 1) How was the position and urgency taken by AE in the dismissal process examination by the chairman? 2) What is the ideal formula for examining the formal requirements of the administrative lawsuit before being examined by the panel of judges? This article aims to provide a practical explanation of these norms. It is a normative juridical type with a statute and a conceptual approach. The results are: 1) AE is …

Rolling The Dice On The Legality Of Gambling Devices: Why "Purpose" Has A Purpose, Stevie Holbrook

Cleveland State Law Review

Section 1955 of the United States Code (“Section 1955”), the federal law detailing prohibition on illegal gambling businesses, renders a defendant susceptible to prosecution if they are found to have violated the respective state’s gambling law and have a certain amount of people involved for a certain length of time. Today, the Sixth Circuit has identified Section 1955 as a general intent statute where it need not be shown that a defendant acted willfully in terms of intentionally violating state law. However, Ohio’s state gambling law has been interpreted as a specific intent statute that requires a purposeful act and, …

An Analytical Study On The Intervention Of The Legislature To The Constitutional Court In Indonesia Compared To Developed Countries, Mochammad Arief Agus, Andi Muhammad Irvan Alamsyah

Indonesia Law Review

Practical improvements in the national institution context brought numerous changes regarding interactions between The Constitutional Court & The legislature including contemporary polemics. The check and balances framework is important to be noticed related to the Judge’s Independence. Aswanto’s recall as one of the Judges of the Indonesian Constitutional Court encourages us to elaborate more about the essence of independence. At the same time, checks and balances should stand out. What is the legal standing of any actions taken by the parliament to the constitutional court? How do developed countries practice the relationship between the legislature and the judiciary? The answer …

Fixing "Litigating The Fix", Steven C. Salop, Jennifer E. Sturiale

Georgetown Law Faculty Publications and Other Works

Merging firms have increasingly been asking trial courts to adjudicate their merger “as remedied” by a voluntary “fix.” These are remedies that have been rejected by (or never proposed to) the agency. This procedure is known as Litigating-the-Fix” (“LTF”). This article proposes a judicial procedure for managing cases in which the merging parties attempt to LTF. Our recommendations flow from a decision theory approach informed by the relevant LTF case law, the merger enforcement record, the language and goals of Section 7, and an economic analysis of the incentives of the parties and agencies created by LTF. Our recommendation addresses …

Penerapan Doktrin Piercing The Corporate Veil Terhadap Negara Pada Holding Badan Usaha Milik Negara, Deny Adi Pratama

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The lack of regulation regarding group company's conception in Indonesia provokes several problems. The policy on establishing holding BUMN in Indonesia only supervised by Government Regulation Number 72 Year 2016 concerning Change of Government Regulation Number 44 Year 2005 regarding Procedure of Participation and Administration Funds upon State-Owned Enterprises and Limited Liability Company. However, the provision which becomes the legal basis underlying BUMN and Limited Liability Company are supervised upon regulation equals to act. Those of which cause a contradiction amongst both provisions of laws and regulation. The rights and obligations along with the country's responsibilities as a public legal …

Pembentukan Holding Company Badan Usaha Milik Negara (Bumn) Di Sektor Infrastruktur Ditinjau Dalam Persaingan Usaha Tidak Sehat, Wiesma Mara Rangga

"Dharmasisya” Jurnal Program Magister Hukum FHUI

That a large number of state-owned enterprises (SOEs) in infrastructure has caused competition, especially when competing against one another in participating in the same tender. This is not in line with the synergy plan between SOEs, which is one of the essential pillars. SOEs belonging to similar value chain groups should work together to accelerate economic growth and synergies at various levels through corporate, transaction, and operational restructuring. Optimizing the formation of infrastructure holding can be done through collaboration and synergy between SOE entities, strengthening and increasing the capacity of each holding member, and integrating infrastructure development. However, the plan …

Masuknya Tenaga Pendidik Asing Di Bidang Teknologi Informasi Dalam Rangka Liberalisasi Pendidikan Tinggi Dalam Menjawab Permasalahan Kebutuhan Atas Sumber Daya Manusia Yang Berkualitas Di Era Industri 4.0, Rodeen Chenggaliex

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Education liberalization has become a hot topic of discussion in Indonesia lately, starting with bringing in foreign higher education leaders to Indonesian universities; in the Industrial 4.0 era, Indonesia still lacks qualified information technology experts to support industry 4.0. Educational sciences in Indonesia are now considered to be still unable to compete with educational sciences abroad. The liberalization of education will undoubtedly have a positive impact on the development of academic science in the development of the Indonesian nation. The problem is this paper focuses on the issue of the low quality of education in the field of information technology …

Perbandingan Sistem Hukum Civil Law Dan Common Law Dalam Penerapan Yurisprudensi Ditinjau Dari Politik Hukum, Praise Juinta W.S. Siregar

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The legal system is related to the concept of law, where the two things have an inseparable relationship with each other. In principle, the legal system regulates the life of a community so that conflicts do not occur, where if the conflict is unavoidable, then the legal system has an important role in resolving the conflict. The legal system in the judiciary has a major influence in the application of the law, especially for judges in examining and deciding a case. The Panel of Judges in deciding a case will definitely pay close attention to the legal system in its …

Kebijakan Countercyclical Sebagai Upaya Kesejahteraan Masyarakat, Made Cinthya Puspita Shara

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Indonesia's high level of economic growth is in line with the development of businesses that increase capital by making credit agreements with financial institutions. However, the state spread of the co-19 pandemic case has been declared a national disaster, impacting the implementation of credit agreements between the debtor and financial institutions. Economic problems make it difficult for people to carry out their obligations. A countercyclical buffer policy is a buffer that is carried out by providing additional capital to replace losses if excessive credit growth occurs, which has the potential to disrupt financial stability. Bank Indonesia Policy PBI No.17/22/PBI/2015, also …

Pengelolaan Royalti Dari Pencipta Lagu Yang Tidak Terdaftar Di Lembaga Manajemen Kolektif Oleh Lembaga Manajemen Kolektif Nasional, Mohamad Thaufiq Rachman

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Royalty is a reward received by the author or owner of the related right concerning the utilization of their Economic Rights following Article 1 point 21 of Law No. 28, 2014 regarding Copyright ("UUHC 2014"). Royalty could also be interpreted as a form of appreciation for the Author's Works, such as song and/or music. Encouraging the spirit of industry players, including songwriters, is essential for continuous growth. As mentioned in the general explanation section of UUHC 2014, Copyright is the most important basis of the national creative economy. With the fulfillment of the protection and development of this creative economy, …

Pengakhiran Kontrak Sebelum Terjadi Wanprestasi Oleh Pihak Yang Mengantisipasi Kegagalan Pelaksanaan Kewajiban, M. Hillman Mehaga S

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Termination of an agreement/contract in a situation where a party has known that he/she/it will not be able to perform its obligation(s) based on the agreement/contract to avoid the occurrence of the larger losses if the agreement/contract is still ongoing. Under Indonesian civil law, a defaulting party or a party who has anticipated that he/she/it will fail to meet obligation(s) does not have the right to file a claim to terminate an agreement/contract. This means that, this party can only be passive until the default actually happens and wait until the non-defaulting party to file the claim with the claim …

Peranan Perusahaan Penjaminan Dalam Mengatasi Permasalahan Umkm Mengakses Kredit Di Sektor Perbankan (Setelah Berlakunya Undang-Undang Nomor 1 Tahun 2016 Tentang Penjaminan), Luh Putu Prema Shanti Putri Saraswati

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Micro, Small and Medium Enterprises (MSME’s) have an important role in the development of the Indonesian economy. So far, MSME’s are still faced with various kinds of obstacles, one of which is that MSMEs still face problems related to limited access to funding to financial institutions. Limited access to funding to financial institutions is partly due to the limited assets owned by MSME’s to be used as collateral for bank loans. Guarantee is the activity of providing guarantees by the Guarantor for the fulfillment of Guaranteed financial obligations to the Recipient of the Guarantee. Guarantee Company is a legal entity …

Perbandingan Penyelesaian Sengketa Lingkungan Hidup Melalui Mekanisme Gugatan Warga Negara (Citizen Lawsuit) Di Indonesia Dan Amerika Serikat, Listyalaras Nurmedina

"Dharmasisya” Jurnal Program Magister Hukum FHUI

A citizen lawsuit is a lawsuit filed by citizens against state officials that cause negligence and cause losses. This negligence is an act against the law (onrechtmatige overhead daad), where the state is ordered to improve its performance and issue a policy for general governing policies (regeling). It is intended to ensure that the negligence that previously occurred will not be repeated. A citizen lawsuit is almost similar to a class action lawsuit because it has the same thing, namely that the lawsuit is filed involving the interests of many people represented by one or more people. The difference is …

Perlindungan Investasi Terhadap Pelaku Usaha Dalam Kegiatan Penanaman Modal Di Bidang Pertambangan (Studi Kasus Pada Pt. Emas Mineral Murni), Liani Hasibuan

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The role of law in supporting investment is urgently needed in order to create legal certainty. According to this, this article intended to examine how investment protection is for investors starting businesses in the mining sector. The problems which were discussed in this article are about the granting of Mining Business Permits (IUP) through the system called Online Single Submission (OSS), which is the legality to start mining activities by observing Law No. 25 of 2007 on Capital Investment and Law No. 4 of 2009 on Mineral and Coal Mining. The research of the case, which occurs in the Ruling …

Perspektif Kitab Undang-Undang Hukum Perdata Dan Uu Nomor 13 Tahun 2003 Tentang Ketenagakerjaan Terkait Dengan Perlindungan Hukum Terhadap Pengusaha Terhadap Wanprestasi Ikatan Dinas Yang Dilakukan Oleh Pekerja, Lia Amalia

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Labor issues cannot be separated from the Agreement between the Worker and the Employer, both as the initial Agreement when implementation or an additional Agreement such as the official bond Agreement. Law No.13 of 2003 on Manpower has regulated that every employee who is bound by a contract to work for/ serve the enterprise for a certain period in return for training or education. She/He is not allowed to resign during the term of the official binding Agreement. The legal consequences for violations are fine in the form of money. In this case, Gresik District Court on August 2014 decided …

Status Quo Kewenangan Perusahaan Asuransi Dalam Menerbitkan Produk Penjaminan Pasca Berlaku Efektifnya Undang-Undang No. 1 Tahun 2016 Tentang Penjaminan, Kalih Krisnareindra

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Risk is something that is always exist in various type of business. Risk management commonly used the assistance of insurance companies to manage its risk by risk transfer. The current prevailing law allows the insurance industry to develop its products wider than the explicitly defined business lines in the regulation. Historically, the guarantee/surety business has been marketed jointly between insurance companies and guarantee/surety companies. This can be traced through laws and regulations that provide the authority to both type of companies to issue guarantee/surety products. But with the enactment of Law No. 1 of 2016 concerning Guarantees, there is an …

Kegiatan Monopoli Pada Bumn Kepelabuhanan: Studi Terhadap Pelaksanaan Perjanjian Tertutup (Tying Agreement) Oleh Pt Pelabuhan Indonesia Ii (Persero) Pada Area Konsesi Pelabuhan Dalam Perspektif Hukum Persaingan Usaha, Kahfiarsyad Julyan Elevenday

"Dharmasisya” Jurnal Program Magister Hukum FHUI

This study aims to find out about how the monopoly activities including how the implementation of a tying agreement conducted by PT Pelabuhan Indonesia II (Persero) as a SOE in the perspective of Competition Law. This study is conducted by analyzing the consideration of judges as stated in the Supreme Court of Republic Indonesia Decision No. 302 K/Pdt. Sus-KPPU/2014 and North Jakarta District Court Decision No. 1/Pdt/KPPU/2015/PN Jkt.Utr. The results of this study indicate that the monopoly activities conducted by PT Pelabuhan Indonesia II (Persero) in its concession area are a monopoly by law as stated in Article 50 a …

Perlindungan Konsumen Startup Digital Yang Bergerak Di Bidang Layanan Urun Dana Melalui Penawaran Saham Berbasis Teknologi Informasi Dalam Sistem Hukum Indonesia, Juliyani Purnama Ramli

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The existence of equity crowdfunding is one of the solutions for micro, small, and medium enterprises financing. The government already regulates equity crowdfunding matters by Financial Service Authority Number 37/POJK.04/2018 concerning equity crowdfunding. The problem is that the state has not fully protected consumers of equity crowdfunding. Its because the definition of equity crowdfunding consumer does not fulfill the consumer elements in Consumer Protection Regulation. The Financial Service Authority has not explicitly regulated consumer protection yet, even though equity crowdfunding has a great opportunity to develop and be used by the community directly.

Keywords: equity crowdfunding, financial service authority, and …

Pengujian Tindakan Penyalahgunaan Wewenang Pejabat Di Pengadilan Tata Usaha Negara, Bob Humisar Simbolon

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The examination of the Abuse of Authority in the State Administrative Court is an administrative act or action that must be based on the existing laws and regulations. However, along with the growing understanding of the state of material law, the understanding that government based on laws has shifted to an understanding of state government based on law. The purpose of this paper is to see the extent of the authority of the State Administrative Court in examining territorial boundaries and the authorized procedures at the State Administrative Court. The research method is in the form of normative juridical research …

Penanganan Situs Internet Bermuatan Negatif, Muhammad Farhansyah Hamid

"Dharmasisya” Jurnal Program Magister Hukum FHUI

This paper discusses the concept of an internet site that is defined to be negative and how the Indonesian law regulates it, and about the mechanism of negative site handling based on peraturan menteri komunikasi dan informasi nomor 19 tahun 2014. Furthermore, it will be discussed about the human rights to have access to the information and how negative content handling is related to it. This legal research uses a normative juridical approach with secondary data from national, regulations, books, and interviews with sources. The result of this research is that content handling is so related to limitation of human …

Konversi Akad Ijarah Al-Muntahiya Bi Al-Tamlik (Imbt) Menjadi Akad Mudharabah, Ana Eka Fitriani

"Dharmasisya” Jurnal Program Magister Hukum FHUI

POJK No.29/POJK.03/2019 about Earning Asset Quality and Establishment of Allowance for Earning Asset Losses for Islamic Rural Banks states that one of the conversions that can be done is the conversion of Ijarah Al-Muntahiya Bi Al-Tamlik (IMBT) contract to Mudharabah contract. When IMBT is converted into Mudharabah contract, at the end of IMBT contract the debtor can’t have the object. Because, the object turned into capital that was given by Shahib al-Mal to Mudharib. There is an adversity that is more detrimental to one party and beneficial to the other. If there is a conflict between adversity and benefit, then …