Criminal Law Commons^™

Crime And The Corporation: Making The Punishment Fit The Corporation, John C. Coffee Jr.

Faculty Scholarship

The debate over corporate criminal liability has long involved a fight between proponents who argue that corporate liability is necessary for effective deterrence and opponents who claim that it “punishes the innocent.” This Article agrees and disagrees with both sides. Corporate criminal liability could play a critical role in establishing an effective deterrent to organizational misconduct, but today it largely fails. Currently, we have a system that combines Deferred Prosecution Agreements, Non-Prosecution Agreements, and extraordinarily generous sentencing credits for compliance plans that have failed, and the result is a system that is more carrots than sticks. The evidence seems clear …

A Restatement Of Corporate Criminal Liability’S Theory And Research Agenda, Samuel W. Buell

Faculty Scholarship

This Article, for a collection in which authors were asked to “imagine a world without corporate criminal liability,” specifies the material questions that should be addressed if debate about the doctrine is to progress past longstanding and oft-repeated assertions. The strongest case for corporate criminal liability is based on the potential for its unique reputational effects to contribute to the prevention and deterrence of crime within corporations. Further research should take up a variety of unanswered questions about those effects having to do with mechanisms and audiences. The relevant inquiries are both theoretical and empirical. Answers will lie in further …

Corporate Criminal Liability: End It, Don’T Mend It, Stephen F. Smith

Journal Articles

From the Author

In this Article, I make the case in favor of abolishing corporate criminal liability. Criminal liability for corporations is peculiar, given that “entity liability” does not otherwise exist in criminal law. The legal system appropriately deals with law-breaking within other entities (such as police departments and labor unions) solely through criminal prosecutions of the individual offenders and civil suits against the entities within which criminality occurred. Corporate criminal liability is another example of overcriminalization, in which criminal law is unjustifiably used to address problems better dealt with through other means. Finally, corporate criminal liability is fundamentally incompatible …

Reexamining The Vicarious Criminal Liability Of Corporations For The Willful Crimes Of Their Employees, Evan Tuttle

Cleveland State Law Review

Corporate compliance programs in the United States have evolved substantially in the past several decades, expanding exponentially in both number and scope. Yet, our legal standard of corporate criminal liability for the acts of employees has remained largely unchanged for the past fifty years. United States v. Hilton Hotels established that a corporation can be held liable for the acts of its employee, even though the employee’s conduct may be contrary to their actual instructions or contrary to the employer’s stated policies. That holding, cited with favor by the Supreme Court, was based on a deeply flawed interpretation of precedent, …

Rico Had A Birthday! A Fifty-Year Retrospective Of Questions Answered And Open, Randy D. Gordon

Faculty Scholarship

The Racketeer Influenced and Corrupt Organizations Act (RICO) came into the world in 1970, a time of great social upheaval that was accompanied by shifting attitudes towards both crime and civil litigation. From the outset, the statute’s complexity, ambiguity, and uncertain purpose have confounded courts and commentators. At least some doubts as to the statute’s meaning and application arise because it has criminal and civil components that subject it to the twin—yet antithetical—social impulses to be “tough on crime” while containing a perceived “litigation explosion.” In this Article, I situate RICO in this larger context and offer that context as …

Kebijakan Penghapusan Izin Lingkungan Dalam Ruu Cipta Kerja Dan Dampaknya Terhadap Pembangunan Berkelanjutan Di Indonesia, Kornelius Benuf, Abram Robert Aritonang, Supriardoyo Simanjuntak

Jurnal Hukum & Pembangunan

The government is currently discussing about Jobs Creation Bill on the implementation of national development. The drafting of Jobs Creation Bill is carriedout by applying the omnibus law system. However, on the Bill there are numbers of irregularities such as the removal of environmental permits and replaced with environmental agreements. This raises legal issues because the changes of terminology onthe Bill have juridical implications for the implementations of sustainable developments in Indonesia. This legal issue will be researched further in this study. The method used is normative juridical with secondary data in the form of primary legal materials ofthe Jobs …

Mencari Jejak Konsep Judicial Restraint Dalam Praktik Kekuasaan Kehakiman Di Indonesia, Dian Agung Wicaksono, Andi Sandi Antonius Tabusassa Tonralipu

Jurnal Hukum & Pembangunan

The decision on judicial review of Laws by the Constitutional Court was allegedly not fully obeyed by the parties affected by the decision. One form of disobedience tothe judicial review decision by the Constitutional Courtwas shown by the Supreme Court concerning the decision related to the opening of the opportunity to submit a Peninjauan Kembali more than once, which was responded by the Supreme Court with internalregulations which emphasized that Peninjauan Kembali could only be done once.From the phenomenon, this research tries to trace the concept of judicial restraint in the practice of judicial power in Indonesia, as well as …

Perbandingan Kedudukan Dan Kewenangan Kepolisian Dalam Konstitusi Yang Pernah Berlaku Di Indonesia, Farrel Eden Surbakti, Ali Abdilah

Jurnal Hukum & Pembangunan

The police are defined as a tool of the state in charge of maintaining the security and order of the community, providing protection, and providing protection to the public. The relationship between the community and the police themselves is mutually influencing, where the existence of the police is functional in the structure of life. When people experience changes due to various factors, then there is also a change in moral standards that result in order and order of life according to previous cultures are no longer used. This is what causes the role and function of the police must always …

Membangun Pengelolaan Perikanan Laut Bebas Di Asia Tenggara Yang Berorientasi Pada Keberlanjutan, Muhammad Insan Tarigan

Jurnal Hukum & Pembangunan

High seas is an ocean legal regime that is free access to every states, including the use of its fisheries. Yet, in fact, fishing on the high seas is dominated by in part of all countries, which are developed countries or at least states with advance technology and finance. The vast potential of high seas fisheries is in line with the high of threat that must be faced, for examples overfishing and destructive fishing. The majority regionals of the world are going through fisheries crisis as well as decreasing of fish stocks in Southeast Asia. Fisheries sector is so important …

Aspek Hukum Peran Wakaf Tunai Pada Masa Pandemi Covid 19, Siska Lis Sulistiani, Intan Nurrachmi, Eva Misfah Bayuni

Jurnal Hukum & Pembangunan

The development of cash waqf in Indonesia in the past 10 years is of particular concern. With the law No. 41 of 2004 concerning endowments became the initial foothold in the development of forms of cash endowments, including endowments of money, endowments sukuk, endowments of Islamic insurance policies and others. Of all the innovations of this waqf because waqf has more flexible properties to be able to make new breakthroughs that fit the needs of the times without reducing the essence of the waqf. The legal aspect of developing cash waqf is important because it will affect its position and …

Studi Sosio Legal Dalam Pemanfaatan Energi Terbarukan Di Perairan Indonesia, Marlina Purba

Jurnal Hukum & Pembangunan

Socio-legal studies are the kind of study that presents the point of view to see the law which focuses on the contact more than the texts. By legal socio approach, the problem which will be learned is notonly study to the norms studied or the law doctrine but see the contact detail of the norms and the enactment. How the law work in the public which will be learned by legal socio study. The legal socio study is done by refer to the research result Cotterrell R about the theory and value. Cotterrell enters the value to explain the action …

Social Justice In Law, Society And Development: A Marxism Perspective Of Indonesian Case, Ridwan Arifin, Vania Shafira Yuniar

Jurnal Hukum & Pembangunan

This article explores about social justice in peoples lives according to Karl Marxs prespective of the concept of social class. It also discusses Marxs concept of the struggle of the social class to provide a solution for the proletariat, to free themselves from the chain of cruelty, violence and alienation in the capitalist system to achieve social justice. The essence of social justice in Karl Marxs prespective is that if a society has created a manifestation of self through compassion, and the collaboration of a classless society, without violence, and without oppression, and humans are free from all forms of …

Penghasilan Tidak Kena Pajak (Ptkp) Sebagai Bentuk Perlindungan Hak Ekonomi Dalam Perspektif Hak Asasi Manusia, Auditya Firza Saputra

Jurnal Hukum & Pembangunan

As a ratifying State to the International Covenant on Economic, Social and Cultural Rights (Ecosoc), the Government of Republic of Indonesia has legal obligation to implement steps of realization in effective and measurable manner in fulfilling, promoting, and protecting the economic, social and cultural rights of all its citizens. The issue is, to fulfil such obligation the State will require high amount of cost. The State is being sourced by the taxation policy. From many taxation policies, Income Tax become one of the most preffered segment. Unfortunately, the Income Tax policy, in practice, hardly optimizing due to many social economic …

Kelemahan Pengaturan Pengupahan Bagi Dokter Di Indonesia, Muhammad Nur

Jurnal Hukum & Pembangunan

The results of the Junior Indonesian Doctors Network (JDN) survey on August 1-30 2018 stated that 26.24 percent of doctors in Indonesias main workplaces were still paid under three million rupiah per month. Then, there are 8.89 percent of doctors who are even paid under one and a half million rupiah per month. Due to the low salaries earned, many doctors end up having to take additional work hours in several practice locations to increase their income. In fact, other studies say that working continuously for doctors increases the risk of malpractice and endangers patients. Low wages also make doctors …

Reformulasi Delik Makar Dalam Rancangan Kitab Undang-Undang Hukum Pidana Nasional Tahun 2019 (Sebuah Telaah Leksikal Terhadap Terminologi Aanslag), Yaris Adhial Fajrin

Jurnal Hukum & Pembangunan

The use of the term Makar as a translation of the word Aanslag in Indonesias CRIMINAL code currently triggers a variety of polemic because it has a lot of meaning, resulting in an ambiguity that causes no legal certainty to be guaranteed. Indonesias CRIMINAL code is currently in its case that it does not provide define and the limitations of Macar deeds so that the multitasking is still prone to occur. Addressing such a thing, it is necessary to reformulation the draft proceeding in the Penal Code in order to ensure the future legal certainty. The limitation of the performance …

Rekonseptualisasi Penyelesaian Sengketa Proses Pencalonan Pilkada, Supriyadi Supriyadi

Jurnal Hukum & Pembangunan

This research aims to find the ideal concept of dispute resolution process in the regional head election, so far the practice of election dispute resolution is carried out by two institutions namely Bawaslu and PTTUN. As for the results of this study in the form of the first, philosophically the Bawaslu institution was born from the provisions of Article 22E paragraph (5) of the 1945 Constitution of the Republic of Indonesia which was interpreted to conduct supervision both in the narrow and broad sense (handling violations and dispute resolution) of the holding of elections or the elections. Second, the dualism …

Kedudukan Dan Kewenangan: Badan Nasional Pengelola Perbatasan Di Indonesia, Putu Wahyu Widiartana

Jurnal Hukum & Pembangunan

The vast condition of the Unitary Republic of Indonesia made Indonesia have several border areas stretching from Sabang to Merauke. Management of the countrys territories and border areas has been regulated in Law 43/2008 on State Territories. The National Border Management Agency (Badan Nasional Pengelola Perbatasan/BNPP) is the only institution tasked with managing border areas in Indonesia. The Minister of Home Affairs as the Head of BNPP leads and controls the implementation of the duties and functions of BNPP. In this study using Border Management Theory and Authority Theory. This research uses the normative legal research method which is the …

Pemusatan Kepemilikan Media Massa Di Indonesia: Tinjauan Aspek Hukum, Muhammad Zulfa Aulia, Raffles Raffles

Jurnal Hukum & Pembangunan

Today, mass media tend to be exclusively possessed by certain business groups who generally have affiliation to authorities or political parties. This article disscusses the concentration of mass media ownership in the light of constitutional and competition law. The article argues that the privatisation of business and politics towards public information through mass media, which is inevitable, has to be minimized. This due to the fact that mass media is one of pillars to which the democracy of a nation relies on. Despite the ownership of mass media which is a part of expressions (by some elites) of the people …

The Role Of Sharia Banking Notaries In The Development Of Sharia Economic Law In The Digital Era, Rofah Setyowati, Bagas Heradhyaksa, Maskur Rosyid

Jurnal Hukum & Pembangunan

Notary has a strategic position in making Islamic banking contracts. This is because the Notary is responsible for the correctness of the contract construction to fulfill the terms of the agreement, as well as sharia principles. This study is intended to analyze the legal consequences that arise in the relationship between the Notary profession and the Islamic banking industry. It is important to find opportunities and challenges of Notaries in supporting the development of Islamic economics in Indonesia. This study uses a philosophical, juridical and empirical approach. The results of the analysis show that the need for a notary who …

Managing The Risk For Fintech Lending Amid The Global Pandemic Corona Virus, Trisadini Prasastinah Usanti, Fiska Silvia Raden Roro, Nur Utari Setiawati

Jurnal Hukum & Pembangunan

The coronavirus (covis-19) is impacting all sectors across the world. Moreover, the covid-19 pandemic will accelerate change in the world economy. That brings both opportunity and danger, says Henry Curr in The Economist. In dealing with global disaster which impacts to the finance and economy world, such as the pandemic of covid-19, fintech lending offers the fastestand the most easy lending service for people in the whole business world nowdays. However, the easy process can cause various problems such as late payment and default in payment. Fintech will suffer from those risks and it can jeopardise the business. Moreover, most …

Konsep Privatisasi Di Indonesia, Mohammad Rezza Naufal

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The phenomenon of privatization in the world has long been initiated and spearheaded by the United States and Britain. Privatization is a shift in management by the state to the private sector, this is very reasonable because this effort is considered to produce significant improvements related to increasing the efficiency of state enterprises that are considered less efficient than private companies. Privatization has also been applied in Indonesia since 1997 after the economic crisis and with the same goal of increasing the efficiency of state enterprises. In Article 33 paragraph (2) and paragraph (3) of the 1945 Constitution, it is …

Perspektif Hukum Mengenai Jasa Netflix Di Indonesia Terkait Indonesia Schedule Of Specific Commitment Dalam Lingkup General Agreement Trade In Services, Chorfiranda N.M

"Dharmasisya” Jurnal Program Magister Hukum FHUI

This journal discusses Netflix services in Indonesia within the scope of the General Agreement on Trade in Services. Netflix is a company from the United States that is engaged in leasing movies and television series with a subscribe system that is digitally distributed. Currently the international regime that includes services is the General Agreement on Trade in Services (GATS). GATS regulates services that have crossed the borders of the World Trade Organization (WTO) member based on GATS principles. This thesis uses the study of normative law with prescriptive research and the conceptual approach. The results of this study indicate that …

Foreign Direct Investment Negara Kamboja, Amanda Julia

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Investment is divided into 2 (two), namely direct investment or commonly known as foreign direct investment and foreign indirect investment. Foreign direct investment provides benefits for a country that applies it, namely increasing socio-economic development, reducing poverty and transferring technology. Of the many benefits of foreign direct investment, it certainly provides a big benefit for developing countries such as Cambodia. The Cambodian Investment Law of 1994 establishes an open and liberal foreign investment regime. All sectors of the economy are open to foreign investment and the government allows 100 percent foreign ownership of companies in most sectors. In order to …

Aspek Hukum Atas Penerbitan Waran Tanpa Hak Memesan Efek Terlebih Dahulu Sebagai Cara Pembayaran Utang Emiten Pasar Modal Indonesia, Arfan Noer Azwad

"Dharmasisya” Jurnal Program Magister Hukum FHUI

In order to debt restructuring activities, a public company may be able to utilize various capital market instruments deemed to be most appropriate to the circumstances of public companies or issuers. One of them is by selling the equity securities either selling stocks, converting bonds in the settlement of debt restructuring, and / or issuing warrants.Warrants issued as part of a restructuring scheme of the Capital Market Issuers in debt repayments certainly have legal risks which certainly have an impact on shareholders, or on creditors.

Etika Bisnis Pelaku Usaha Yang Merugikan Konsumen Dalam Hukum Persaingan Usaha, Hirmawati Fanny Tainpubolon

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Competition between business actors has been carried out in ways that are unfair so that there will be consumers who are hammed. This is because there is no honesty regarding the quality of goods offered for circulation by certain business actors by stating that the products they offer are of the highest class quality even though there are hidden defects covered, if this situation occurs in a protracted manner, consumers will suffer a lot of losses. Through the study of juridical analysis and using library research, the author examines two main issues, namely how business competition and business ethics among …

American Edibles: How Cannabis Regulatory Policy Rehashes Prohibitionist Fears And What To Do About It, Connor Burns, Jay Wexler

Seattle University Law Review

Why can’t we buy a cannabis muffin with our morning coffee? For much of the past century, the answer was simple: cannabis was illegal. Now, however, with more and more states legalizing cannabis for adult use, the answer is far less clear. Even in those states that have legalized cannabis, the simple action of buying and eating edibles at the same location has somehow remained a pipe dream despite consumer demand. Digging a little deeper, we can see how contemporary alarmism—by rehashing the same prohibitionist rhetoric demonizing cannabis for over eighty years—has once again arisen with a new target: cannabis-infused …

Transnational Anti-Bribery Law, Kevin E. Davis, Veronica Root Martinez

Faculty Scholarship

This chapter focuses on private firms’ compliance with norms concerning transnational bribery. It begins with an overview of the regulatory context and obstacles to effective enforcement of norms against transnational bribery. It then reviews how compliance is defined, how it ought to be defined, and obstacles to the achievement of optimal compliance. Finally, it ends by focusing on the next steps forward in this space: (1) greater information sharing from private firms to outsiders in order to better analyze and evaluate the current efficacy of compliance programs targeting anti-bribery, and (2) increased coordination between enforcement agencies at the national and …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Constructing Countervailing Power: Law And Organizing In An Era Of Political Inequality, Kate Andrias

Faculty Scholarship

This Article proposes an innovative approach to remedying the crisis of political inequality: using law to facilitate organizing by the poor and working class, not only as workers, but also as tenants, debtors, welfare beneficiaries, and others. The piece draws on the social-movements literature, and the successes and failures of labor law, to show how law can supplement the deficient regimes of campaign finance and lobbying reform and enable lower-income groups to build organizations capable of countervailing the political power of the wealthy. As such, the Article offers a new direction forward for the public-law literature on political power and …

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …