Tragedies Of The Cultural Commons, Etienne C. Toussaint

Faculty Publications

In the United States, Black cultural expressions of democratic life that operate within specific historical-local contexts, yet reflect a shared set of sociocultural mores, have been historically crowded out of the law and policymaking process. Instead of democratic cultural discourse occurring within an open and neutral marketplace of ideas, the discursive production and consumption of democratic culture in American politics has been rivalrous. Such rivalry too often enables dominant White supremacist cultural beliefs, values, and practices to exercise their hegemony upon law’s production and meaning. The result has been tragedy for politically disempowered and socioeconomically excluded communities.

This Article uses …

Closing The Door On Permanent Incorrigibility: Juvenile Life Without Parole After Jones V. Mississippi, Juliet Liu

Fordham Law Review

In April 2021, the U.S. Supreme Court decided Jones v. Mississippi, its latest opinion in a line of cases addressing when, if ever, a child should be sentenced to life in prison with no hope of parole or release. Although Jones purported to resolve division among lower courts over the findings that a sentencing court must make about a child defendant’s character and prospects for reform and rehabilitation, the decision will likely lead to further disagreement among courts.

This Note argues that although the Supreme Court’s jurisprudence has protected children from harsh sentences, it has also opened a Pandora’s …

What Counts As ‘Racist Enough?’: A Clearer Standard For New Trials When Jurors Demonstrate Racial Bias, Priyadarshini Das

Journal of Law and Policy

The no-impeachment rule, Federal Rule of Evidence 606(b), necessitates that jurors keep their deliberations secret. However, in the 2017 Supreme Court case Peña-Rodriguez v. Colorado, the Court created a racial bias exception to the no-impeachment rule. This exception allows jurors to notify the court when “one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.” This Note argues that this standard is too narrow because it fails to consider several situations of racial bias, like implicit bias. The ineffectiveness of this exception is demonstrated …

Ice Transfers And The Detention Archipelago, Sabrina Balgamwalla

Journal of Law and Policy

This article examines transfers as an understudied but critical dimension of the immigration detention system. Transfers regularly take detainees in immigration custody from public to private facilities, across state lines, and beyond the jurisdiction of individual courts. Immigration and Customs Enforcement (“ICE”) has virtually unlimited authority to use transfers strategically to further agency goals of immigration enforcement. For individual detainees, transfers shape outcomes in their immigration cases. Noncitizens are regularly funneled into detention centers in legal jurisdictions generally hostile to claims for relief. Transfers also regularly send detainees to facilities in isolated, rural communities, where they are more likely to …

Territoriality In American Criminal Law, Emma Kaufman

Michigan Law Review

It is a bedrock principle of American criminal law that the authority to try and punish someone for a crime arises from the crime’s connection to a particular place. Thus, we assume that a person who commits a crime in some location— say, Philadelphia—can be arrested by Philadelphia police for conduct deemed criminal by the Pennsylvania legislature, prosecuted in a Philadelphia court, and punished in a Pennsylvania prison. The idea that criminal law is tied to geography in this way is called the territoriality principle. This idea is so familiar that it usually goes unstated.

This Article foregrounds and questions …

The Fourth Amendment And The Problem Of Social Cost, Thomas P. Crocker

Northwestern University Law Review

The Supreme Court has made social cost a core concept relevant to the calculation of Fourth Amendment remedies but has never explained the concept’s meaning. The Court limits the availability of both the exclusionary rule and civil damages because of their “substantial social costs.” According to the Court, these costs primarily consist of letting the lawbreaker go free by excluding evidence or deterring effective police practices that would lead to more criminal apprehension and prosecution. But recent calls for systemic police reform by social movements have a different view of social cost. So too do calls for reforming qualified immunity. …

Bentuk Penanaman Modal Asing Bangkok Bank Di Indonesia Berdasarkan Hukum Penanaman Modal, Desi Ariani Sinulingga

Jurnal Hukum & Pembangunan

Investment is part of the implementation of the country's economy which aims to increase national economic growth, create jobs, and encourage national economic development so that a prosperous, equal, and prosperous society can be realized. Investment regulation in Indonesia has been started since the issuance of Act Number 1 of 1967 concerning Foreign Investment and Act Number 6 of 1968 concerning Domestic Investment. Both regulations have been revoked by Act Number 25 of 2007 concerning Investment, and part of the provisions have been amended by the Omnibus Act Number 11 of 2020 concerning Job Creation. Foreign investment in Indonesia can …

Analisis Politik Hukum Islam Berbasis Maqoshid Syari’Ah (Studi Terhadap Konsep Anak Sah Dalam Undang-Undang Nomor 1 Tahun 1974 Tentang Perkawinan), Asmuni Asmuni, Agus Firman

Jurnal Hukum & Pembangunan

This article aims to use maqashid sharia to analyze the conformity of the rules regarding legitimate children in Article 42 of the Marriage Law (UUP) with sharia principles. At the level of application of the law, it will also be seen whether the regulation is in accordance with the basic principles of maqashid. The results of this study indicate that the provisions of Article 42 UUP which equate the status of children born 'as a result of' and 'in' a legal marriage, are not in accordance with sharia principles. The Office of Religious Affairs (KUA) in determining marriage guardians for …

Mekanisme Hukum Adat Perdmaian (Mela Sare) Dalam Mewujudkan Rekonsiliasi Para Pihak Pasca Putusan Pengadilan Pada Masyarakat Lamaholot Di Adonara – Flores Timur, Handrianus David Ola Sili

Jurnal Hukum & Pembangunan

The substance aspect that underlies this writing in the Adonara community, the implication of a court decision is the breakdown of relations / relations both personal and social between the parties to the dispute or "kenetun". In order for the implication of the court decision to help eliminate the "kenetun" customary bulkhead, an effort was made to reconcile the parties to the dispute. Interesting to study more deeply, the Lamaholot community has a customary law tradition that is packaged in the traditional ritual of peace mela sare. This research is sociological law (sociological legal research) or empirical legal research with …

Model Pencantuman Asas Hukum Dalam Pembentukan Hukum Perikatan Nasional, Djumikasih Djumikasih

Jurnal Hukum & Pembangunan

Indonesia is currently trying to draft a law of engagement. In the drafting process, there are differences of opinion as to whether the principles of binding law will be written explicitly or implicitly. Based on the results of the discussion, it can be concluded that, the nature of legal principles is a very important and fundamental thing, which comes from ethical values that exist in society, which is very useful because it is a direction guide, for the formation of legal norms and law enforcement itself. The function of legal principles is not only as a foundation, heart or bridge …

Dewan Pertimbangan Presiden Dalam Struktur Ketatanegaraan Indonesia, Brilliant Bintang Prasetya, Ryan Muthiara Wasti

Jurnal Hukum & Pembangunan

The existence of the Presidential Advisory Council is inseparable from the history of state administration with the political phenomenon of law. Various ideas of pros and cons questioned the position and authority of the country's advisory institutions. The institution which at the beginning of its formation was named the Supreme Advisory Council then turned into a Presidential Advisory Council under the executive rule after the amendment to the 1945 Constitution. The shift raises the peculiarities of the position of advisors not under the authority given by advice. Reflecting on the discourse, this paper reviews how the position and extent of …

Database Floklore Dalam Undang-Undang Tentang Hak Cipta Dan Undang-Undang Tentang Pemajuan Kebudayaan, Lora Sinta Sulistiorini

Jurnal Hukum & Pembangunan

Law 28/2014 on Copyright and Law 5/2017 on Cultural Promotion have a major role in regulating and protecting floklore. This can be seen from the norms that regulate the mechanism for protecting floklore in Article 38 paragraph (2) of the Copyright Law, which states that the state is obliged to make an inventory, maintain, and maintain traditional cultural expressions.law a quo also regulates the procedures for recording as contained in Articles 66-72. Not only that, the Law for the Advancement of Culture also regulates the floklore database through Articles 16-26 of a quo. The two laws then raise the question, …

Pembaruan Pemahaman Bahasa Hukum Indonesia Dalam Penafsiran Konstitusi Untuk Jaminan Kepastian Hukum, Normand Edwin Elnizar

Jurnal Hukum & Pembangunan

This article attempts to explain legal language aspects need to be improved in implementing laws that uphold justice while at the same time provide legal certainty. The study is limited to the constitution as the highest law in the national legal system. The explanation of the linguistic aspect including foreign legal terminology in the constitutional interpretation and the constitutional interpretation as a discourse analysis. It was conducted by literature research to compare the paradigm of constitutional interpretation theory with linguistic aspects in linguistic theory. Decision Number 84/PUU-XVI/2018 used as example for this research. This qualitative research describes some linguistic aspects …

Pengaturan Pembatasan Penggunaan Data Nasabah Bank Untuk Mencegah Penggelapan Dana Nasabah Di Bank, Nathasya Nauli Nainggolan, Rouli Anita Velentina

Jurnal Hukum & Pembangunan

As financial institutions, banks are required to have customer data protection mechanisms. This is for the sake of the banking busines’ continuity that is being undertaken. The sustainability of a bank's business is largely determined by the trust of the customers to save funds and use bank services. The customer data protection mechanism is one of a risk management form that is primarily aimed at protecting customer personal data, which is useful for preventing the risk of misuse of bank customer data by irresponsible persons. This study aims to discuss the provisions regarding the protection of customer data by banks …

Ultimum Remedium Terhadap Keterlibatan Notaris Dalam Perbuatan Melawan Hukum, Halwa Fairuzia, Rouli Anita Velentina

Jurnal Hukum & Pembangunan

Ultimum Remedium is a principle that means criminal sanctions should be the last resort in solving a problem, where civil and administrative sanctions are prioritised. In this journal, the researcher will discuss how this principle relates to the authority held by the Notary Honorary Council in limiting actions against the law committed by notaries. This study uses normative juridical research, where the law serves as a foundation for examining legal regulations related to legal issues regarding unlawful acts committed by notaries.

Redistribusi Tanah Bekas Hak Erfpacht Dalam Kaitannya Dengan Pilot Project Of Agrarian Reform Guna Mewujudkan Sustainable Development Di Desa Galengdowo, Kabupaten Jombang, Fadila Fernanda, Adhitya Widya Kartika

Jurnal Hukum & Pembangunan

The redistribution of land with erfpacht right in Galengdowo village is one of the agrarian reform programs in the form of distributing state land to cultivators by giving ownership right to the land they cultivate. These freehold land certificates can then be used as collateral to obtain business capital through Community Land Empowerment (CLE) which is aimed at becoming a pilot project for an agrarian reforma village producing coffee and dairy products by developing regional-level businesses to become national scale. This study uses an empirical legal research method that examines the implementation of law in society. The approach used is …

Keping Puzzle Yang Hilang: Menelaah Hak Yang Sirna Terhadap Narapidana, Muhammad Abdul Azis, Riski Ananda Kusuma Putri, Nur Rahman

Jurnal Hukum & Pembangunan

Prisons have a reputation for being cages of deprivation of freedom and atonement for wrongdoing. Prisoners lose their independence because prisons restrict their movement, including their sexual needs, which is like the "missing piece of the puzzle." The discussion in this article tries to explore the missing piece of prisoners' rights, examine, and analyze the impact of the Conjugal Visit program for prisoners in Indonesia, to bring new light to the realization of human rights in the prison system aimed at legal protection and fulfillment of human rights. This article uses normative legal methods. Systematic legal comparison is used to …

Menelisik Sikap Pemerintah Indonesia Dalam Menghadapi Kelangkaan Alat Pelindung Diri Ditengah Wabah Pandemi Coronavirus Disease (Ditinjau Dari Undang-Undang Nomor 36 Tahun 2009 Tentang Kesehatan), Marisca Gondokesumo, Nabbilah Amir

Jurnal Hukum & Pembangunan

World Health Organization (WHO) has established coronavirus disease 2019 (COVID-19) as Public Health Emergency of International Concern (PHEIC), WHO recommends all countries to anticipate COVID-19. One important element needed to deal with the virus is personal protective equipment that is used by medical personnel to carry out medical treatment for patients infected with COVID-19, but the item is scarcity in Indonesia. What is the attitude of the Indonesian government in responding to the scarcity of personal protective equipment. The research method used is empirical juridical. The results showed that the scarcity of the availability of personal protective equipment due to …

Tanggung Jawab Hukum Inventor Atas Invensi Kecerdasan Buatan (Artificial Intelligence) Di Indonesia, Deslaely Putranti, Kurnia Dewi Anggraeny

Jurnal Hukum & Pembangunan

The pace of technological development can no longer be restrained until the emergence of artificial intelligence (AI) which later, turns out to have a negative impact on its application. AI is a computer system program created by humans. However, the invention of AI in one hand makes human work easier, it is also noticeable that there are several criminal cases "performed" by AI. This research is qualitative research with doctrinal research. The data used include secondary data consisting of primary, secondary and tertiary legal materials. The method of data collection is done through document study. This research concludes that the …

Deregulasi Terhadap Paradoks Vaksin Covid-19 Sebagai Barang Publik Dan Vaksin Berbayar Dalam Peraturan Menteri Kesehatan Nomor 19 Tahun 2021, Fikri Ahsan

Jurnal Hukum & Pembangunan

The Coronavirus Virus Disease 2019 (COVID-19) vaccine coronavirus (COVID-19) on pandemics is public goods that make public use of all societies in general, but in the regulation of the minister of health number 19 of 2021 regarding the second amendment to the regulation of the minister of health number 10 of 2021 regarding the implementation of vaccinations in the wake of the corona virus virus 2019 (COVID-19) vaccine, Explains the cooperative vaccination that funding is imposed on individuals/individuals (paid). This goes against public goods and tends to become commercial private goods, so in this pandemic of covid-19 should not be …

The Feud Of Nemo Plus Iuris Ad Alium Transferre Potest Quam Ipse Habet And Nemo Dat Quad Non Habet (Nemo Dat Rule) Legal Principles Against The Legal Principle Of Good Faith (Bona Fides) In Indonesian Courts, Yonatan Yonatan, Rosa Agustina

Indonesia Law Review

Abstract

A dispute over ownership of land rights between the real Original Owner and a Good Faith Purchaser can be assumed as a dispute over legal principles in the field of civil law, namely: the legal principle of Nemo Plus Iuris Ad Alium Transferre Potest Quam Ipse Habet, and the legal principle of Nemo Dat Quad Non Habet (Nemo Dat Rule) against the legal principle of good faith (bona fides). The legal principle of Nemo Plus Iuris Ad Alium Transferre Potest Quam Ipse Habet and the legal principle of Nemo Dat Quad Non Habet (Nemo Dat Rule) are legal principles …

Preview; State V. Mefford: Scope Of Consent Searches In A Digitalized World, Spencer Pedemonte

Montana Law Review Online

No abstract provided.

Criminal Defamation And Freedom Of Speech In The Internet Age: A Study For Indonesian Democratic Values, Eka Nugraha Putra

Maurer Theses and Dissertations

For a country that has been declared a democratic nation since it gained independence, Indonesia still faces the real challenge of maintaining democratic values. Currently, Indonesian legal regulations do not provide a clear standard for when speech is protected and when it can be considered actionable defamation. The obscure scope of the law means that it can affect some kinds of speech, such as opinion or criticism, and render that speech punishable as a crime.

This study analyzes Indonesia’s criminal defamation laws by examining what is protected and unprotected speech. The study examines various laws, including Indonesian statutes and judicial …

Upaya Pemerintah Terhadap Perlindungan Ekspresi Budaya Tradisional Batik Motif Parang Sebagai Warisan Budaya Dunia, Raden Zulfikar Supinarko Putra

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

Batik is not just a design on a piece of cloth, more than that, batik is a soul that blends in the procession of Indonesian society. Since the baby has been carried with a batik cloth, weddings wear batik cloth until when they die they will be covered with batik cloth too usually. This fact become a consideration for UNESCO to establish Indonesian Batik as a Masterpieces of the Oral and Intangible Heritage of Humanity in the Fourth Session of The Intergovernmental Committee. This research uses a normative legal research method that is descriptive and analytical using a statutory …

Perbedaan Akad Wakalah Bil Ujrah Dan Akad Qard Terhadap Permasalahan Akad Pembelian Barang Dalam Kehidupan Sehari-Hari, Zendy Sellyfio Ardiana

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

The wakalah bil ujrah and qard contract are contracts that often cause difficulties in implementing the purchase of goods in everyday life, both in safekeeping for purchasing goods and for buying and selling in general. Where if it is wrong in its application, it can cause income in a sale and purchase to be haraam due to an error in understanding the contract used and not describing benefit as the core of maqashid al-sharia which has an important role in determining Islamic law. The purpose of this paper is to find out how the solution to the application of …

Tinjauan Yuridis Dalam Penyelesaian Pelanggaran Ham Berat Melalui Komisi Kebenaran Dan Rekonsiliasi Di Afrika Selatan Dan Indonesia, Tshana Erfandi

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

Several countries are currently developing a solution to the problem by establishing a particular commission. The commission works outside the courts, parliament and executive. In Indonesia, In Indonesia. The People's Consultative Assembly set a stipulation regarding the establishment of the National Center for Truth and Reconciliation: (NCTR) in 2000. This stipulation has the intent and purpose for national unity to identify existing problems, determine the conditions that must be made in order to achieve national reconciliation and establish policy direction as a guide to carry out the consolidation of unity of a nation. Whereas in South Africa, the National …

Implementasi Pemusnahan Polychlorinated Biphenyls (Pcbs) Di Indonesia, Florentinus Binsar Tumindi

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

This thesis discusses the Implementation of Polychlorinated Biphenyls Elimination in Indonesia. PCBs have a harmful impact on human health and the environment. PCBs are found in many transformers and capacitors. In 2028, PCBs must be destroyed by Indonesian Government. International trade allows the export-import of PCBs based on the General Agreement on Tariffs and Trade (GATT) with the aim of destroying PCBs between countries, with due respect of Article 20 letter ‘b’ of the GATT or what is called environmental exception. The destruction of PCBs can be done through 2 (two) methods or technologies, …

Analisis Wechat Pay & Alipay Sebagai Financial Technology (Fintech) Dari China Yang Telah Resmi Beroperasi Di Indonesia, Farisa Alifah

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

The development of technology innovation has played a major role in the implementation of payment system services. The rapid development of the industry and increasing public adoption of smartphones in Indonesia encourage technology and financial companies to use technology as a payment intermediary. This makes mobile payment services as a new payment alternative for the community. Electronic Money is one of the non-cash instruments that is steadily increasing because of its small, fast, and massive value characteristics that make it the preferred payment instrument for the public.This also encourages the development of the electronic trading business (e-commerce) and financial …

Larangan Pembatasan Kuantitatif: Studi Kasus Indonesia – Importation Of Horticultural Products, Animals And Animal Products, Faiz Muhammad Rizky

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

In 2014, Indonesia implemented measures relating to the importation of horticultural products, animals and animal products which were seen as a trade barrier in the form of quantitative restrictions imposed through the import licensing system. This article analyze whether the panel and appellate body decision in the case of Indonesia - Importation of Horticultural Products, Animals and Animal Products is in accordance with the provisions contained in the WTO legal framework. Indonesia’s policies cannot be justified under WTO legal framework, though there are some exceptions of the quantitative restriction provision.

Keywords: Indonesia, WTO, Import, Licencing, Quantitative Restriction

Analisis Yuridis Pembukaan Rahasia Bank Untuk Kepentingan Penegakan Hukum Tindak Pidana Korupsi Yang Ditangani Oleh Komisi Pemberantasan Korupsi, Erwin Sasmita

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

Bank is a financial intermediary institution that collects funds from the public and distributes them. So that a relationship of trust arises between the public and banking institutions called bank secrecy where everything that is known to the bank about its customers will be kept confidential and not disclosed to anyone except for the applicable laws and regulations. Corruption is an extraordinary crime where the perpetrator usually aims to obtain assets, one of which is money deposited in a bank either on behalf of the perpetrator of corruption or close people who are trusted to deposit the treasure. When …