Jurisprudence Commons^™

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 …

Should I Stay Or Should I Go? South Carolina's Nonlawyer Judges, Christel Purvis

South Carolina Law Review

No abstract provided.

Consider Collateral Consequences: The Inherent Hypocrisy Of Veterans Treatment Courts’ Failure To Dismiss Criminal Charges, Julia W. Williams

Journal of Law and Policy

American veterans are often plagued by psychological and physical injuries, among other hardships, which, when unaddressed, can lead to substance abuse, criminal behavior, and suicide. As public awareness of the difficulties that American veterans face was growing, the problem-solving court movement was also gaining momentum. Largely inspired by therapeutic jurisprudence, an interdisciplinary framework that sees the law as a way to reach therapeutic outcomes, problem-solving courts seek to identify the root causes of criminal behavior and address those causes in ways that promote rehabilitation and reduce recidivism. Veterans Treatment Courts (“VTCs”) emerged when veterans advocacy intersected with the problem-solving court …

United States V. Donziger: How The Mere Appearance Of Judicial Impropriety Harms Us All, Jackie Kushner

Journal of Law and Policy

In 2011, environmentalist lawyer Steven Donziger was sued in a retaliatory lawsuit by the oil company Chevron, following his securement of a multibillion-dollar award against the company for its environmental harms in Ecuador. In a case rife with judicial impropriety, Donziger was ultimately charged with criminal contempt of court and his charges were prosecuted by a private attorney. These suits exemplify the growing problem of powerful corporations using legal tactics to retaliate against activists and undermine the legitimacy of the legal system. Federal judges contribute to the problem by misusing the extensive power they hold in distinguishing criminal from civil …

The Future Of The Allen Charge In The New Millennium, Caleb Epperson

Arkansas Law Review

"In matters of truth and justice, there is no difference between large and small problems, for issues concerning the treatment of people are all the same." Following the death of George Floyd on May 25, 2020, social and political movements grew rapidly nationwide to combat the prevalence of police brutality against African-American communities. The impact of the ongoing Black Lives Matter movement has been observed in both cities across the United States and in related movements internationally. This movement highlights the necessity for police reform and catalyzes the public’s growing call for greater criminal justice reform. To achieve the goals …

Can't We Just Talk About This First?: Making The Case For The Use Of Discovery Depositions In Arkansas Criminal Cases, Bryan Altman

Arkansas Law Review

“[T]he quest for better justice is a ceaseless quest, that the single constant for our profession is the need for continuous examination and reexamination of our premises as to what law should do to achieve better justice.” From time to time, it is important that we take stock of our legal surroundings and ask ourselves if our procedures are still properly serving us, or if there is need for change and improvement. In this Article, I argue that the time has come for Arkansas to provide the criminal defense bar with the affirmative power to conduct discovery depositions. Arkansas criminal …

Rewriting Whren V. United States, Devon W. Carbado, Jonathan Feingold

Faculty Scholarship

In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that …

The Local Community Standard: Modernizing The Supreme Court's Obscenity Jurisprudence, Jacob S. Gordon

Helm's School of Government Conference - 2021-2024

Paper presentation on the Supreme Court's outdated case law on obscenity and how it needs to be modernized to in order to combat the dissemination of inappropriate materials in the age of decentralized digital media.

Getting To Phi: The Case For Excusatory Derogations From Iccpr Rights, Benjamen F. Gussen

Cardozo International & Comparative Law Review

This Article highlights the need for excusatory derogations from human rights. Currently, there is exclusive reliance on justification when upholding derogations from International Covenant on Civil and Political Rights ("ICCPR ) rights. In contrast, an excusatory derogation accentuates the requisite international policy intervention to assist national and subnational governments toward a proportional response to public emergencies. The right to mobility under the ICCPR, and its renditions in the constitutions of Australia and Canada, are used to illustrate this proposition. Border closures in response to the coronavirus pandemic provide context to elucidate how different types of public emergencies dictate different approaches …

Bargaining For Abolition, Zohra Ahmed

Faculty Scholarship

What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? Early observers of twentieth century urban criminal courts likened them to factories.¹ Since then, commentators often deploy the pejorative epithet “assembly line justice” to describe criminal court’s processes.² The term conveys the criticism of a mechanical system delivering a form of justice that is impersonal and fallible. Perhaps unintentionally, the epithet reveals another truth: criminal court is also a workplace, and it takes labor …

Location, Location, Location: The Federal Sentencing Guidelines' Abduction Enhancement And The Meaning Of "Different Location", Sabrina Jemail

University of Cincinnati Law Review

No abstract provided.

The Dignitary Confrontation Clause, Erin Sheley

Washington Law Review

For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving …

Race And Washington’S Criminal Justice System: 2021 Report To The Washington Supreme Court, Task Force 2.0

Washington Law Review

RACE & WASHINGTON’S CRIMINAL JUSTICE SYSTEM:

EDITOR’S NOTE

As Editors-in-Chief of the Washington Law Review, Gonzaga Law Review, and Seattle University Law Review, we represent the flagship legal academic publications of each law school in Washington State. Our publications last joined together to publish the findings of the first Task Force on Race and the Criminal Justice System in 2011/12. A decade later, we are honored to join once again to present the findings of Task Force 2.0. Law journals have enabled generations of legal professionals to introduce, vet, and distribute new ideas, critiques of existing legal structures, and reflections …

Analyzing The Implications Of The Supreme Court's Application Of The Canons Of Construction In Recent Federal Indian Law Cases, Meredith Harris J.D.

American Indian Law Journal

Federal Indian law in the United States has historically relied on application of the Indian Canons of Construction (“Canons”). The courts have relied on these principles since 1832. However, their application has not been consistent. Indeed, the Canons are discretionary which has led to judicial avoidance. Yet, recent Supreme Court opinions demonstrate a resurgence of the Canons and a trend towards a textualist approach, both of which involve greater deference to tribal understandings. Ultimately, the opinions in United States v. Washington, Washington State Dept. of Licensing v. Cougar Den, Herrera v. Wyoming, and McGirt v. Oklahoma, …

Digital Evidence In Appeals Of Criminal Cases Before The U.S. Courts Of Appeal: A Review Of Decisions And Examination Of The Legal Landscape From 2016 – 2020, Martin Novak

Journal of Digital Forensics, Security and Law

This study is a follow-up to Digital Evidence in Criminal Cases before the U.S. Courts of Appeal: Trends and Issues for Consideration – 2010 to 2015. The current study examines appeals of criminal cases before the United States Courts of Appeal from January 2016 through August 2020, where one or more appeal claims were related to digital evidence. The purpose of this research was to determine if the legal landscape has changed since 2015; examine the most relevant legal issues related to digital evidence; and analyze how precedential cases may have affected digital forensics as evidence.

On Lenity: What Justice Gorsuch Didn’T Say, Brandon Hasbrouck

Scholarly Articles

This Essay was first published online at 108 Va. L. Rev. Online 239 (2022).

Facially neutral doctrines create racially disparate outcomes. Increasingly, legal academia and mainstream commentators recognize that this is by design. The rise of this colorblind racism in Supreme Court jurisprudence parallels the rise of the War on Drugs as a political response to the Civil Rights Movement. But, to date, no member of the Supreme Court has acknowledged the reality of this majestic inequality of the law. Instead, the Court itself has been complicit in upholding facially neutral doctrines when confronted with the racial disparities they create. …

Robert Cover’S Love Of Stories: A Rumination On His Wanting To Discuss The Brothers Karamazov With Me Across Five Conversations During The Last Five Years Of His Life, With An Application To The Chauvin Murder Trial Of 2021, Richard H. Weisberg

Articles

The field of Law and Literature, perhaps more than any other area of legal studies, has been touched deeply by Robert Cover’s life and work. My interactions with Bob over the last half dozen years of his tragically short life provide an insight, recounted in a somewhat personal vein here, into his profound engagement with stories, with the most enduring part of that revitalized inter-discipline. I specify and illustrate five conversations I had with him during conferences, family interactions, or long New Haven walks beginning in 1981 and ending the day before his untimely death in the Summer of …

Criminal Acts And Basic Moral Equality, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

Modern criminal justice presupposes that persons are not morally equal. On the contrary, those who do wrong are viewed by the law as less worthy of respect, concern and decent treatment: Offenders, it is said, “deserve” to suffer for their misdeeds. Yet, there is scant logical or empirical basis for the law's supposition that offenders are morally inferior. The usual reasoning is that persons who intentionally or knowingly do wrong are the authors and initiators of their acts and, as such, are morally responsible for them. But this reasoning rests on the assumption that a person's mental states, such as …

Criminal Law Exceptionalism, Benjamin Levin

Publications

For over half a century, U.S. prison populations have ballooned and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy. Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions. Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned. Instead of …

Innocent Until Suspected Guilty, Rebekah Durham

University of Cincinnati Law Review

No abstract provided.

Challenging Solitary Confinement Through State Constitutions, Alison Gordon

University of Cincinnati Law Review

Eighth Amendment jurisprudence has resulted in limited scrutiny of solitary confinement despite the known harms associated with the practice. The two-part test established by the federal courts to evaluate Eighth Amendment claims and limitations on challenging prison conditions under the Prison Litigation Reform Act can make it difficult to establish that solitary confinement is cruel and unusual punishment.

State constitutional challenges to solitary confinement are underexplored. Nearly all state constitutions contain an equivalent provision to the Eighth Amendment’s prohibition on cruel and unusual punishment. State courts need not be bound by federal jurisprudence in interpreting the scope of the state …

The High Price Of Poverty In Arkansas’S Courts: Rethinking The Utility Of Municipal Fines And Fees, Madison Miller

Arkansas Law Review

The opposite of poverty is not wealth. It is justice. Beginning in the 1980s, a "trail of tax cuts" led to budget shortfalls and revenue gaps throughout the United States. These budgetary problems resulted in many cities and towns shifting their burden of funding courts and the justice system at large "to the 'users' of the courts, including those least equipped to pay." Although "jailing an indigent person for a fine-only, low-level offense is unconstitutional," it is still an ongoing practice in many states, including Arkansas. In 1995, Arkansas passed new legislation to govern its circuit courts' collection and enforcement …

Prosecuting The Phone Scammer When Extradition Fails And Concurrent Jurisdiction Exists, Michelle Lepkofker

Brooklyn Journal of International Law

Advancements in technology allow people to place phone calls half a world away via the internet. This technology has made it easier and cheaper for consumers to communicate, but it has also made it easier for scammers to reach more unsuspecting victims. In 2020, TrueCaller, an app designed to block scam phone calls, successfully blocked, and identified 31.3 billion spam calls in 20 countries. In the same year, Americans alone lost a total of USD $ 29.8 billion to scam calls. This Note argues that phone scams continue to be lucrative, in part, because criminal prosecutions of transnational crimes are …

The Ostensible (And, At Times, Actual) Virtue Of Deference, Anthony O'Rourke

Journal Articles

In Rethinking Police Expertise, Anna Lvovsky exposes how litigators leverage judicial understandings of police expertise against the government. The article is rich not only with descriptive insights, but also with normative potential. By rigorously analyzing the relationship between expertise and authority in specific cases, Professor Lvovsky offers guidance as to how judges and lawyers should factor a police officer’s expertise into an assessment of whether the officer’s conduct is lawful. This Response argues, however, that Rethinking Police Expertise’s normative potential is weakened by the sharp conceptual distinction it draws between judicial understandings of expertise as a “professional virtue” (which it …

When The Conditions Are The Confinement: Eighth Amendment Habeas Claims During Covid-19, Michael L. Zuckerman

University of Cincinnati Law Review

The COVID-19 pandemic cast into harsher relief much that was already true about mass incarceration in the United States. It also cast into harsher relief much that was already true about the legal barriers confronting people seeking to make its conditions more humane. This Article offers a brief overview of the legal landscape as the COVID-19 crisis arose and then surveys eight prominent federal cases involving Eighth Amendment claims related to COVID-19 outbreaks at carceral facilities, most of which included significant litigation over whether they could secure release through habeas corpus. The Article then distills six key tensions from these …

Case Study: The International Criminal Tribunal For The Former Yugoslavia’S Court Transcripts In Bosnian/Croatian/Serbian—Part 1: Needs, Feasibility, And Output Assessment, Besmir Fidahić

Genocide Studies and Prevention: An International Journal

International Criminal Tribunal for the Former Yugoslavia (ICTY) remains the most important organization for the past, the present, and the future of the former Yugoslavia. Faced with a country that always lived under totalitarian regimes with very little insight into actions of the groups and individuals who reaped unthinkable havoc on each other at the end of the twentieth century, the ICTY set undisputable historical record about events that took place during the 1991–1999 wars and put the country on an excellent track towards transformation for the better. But even 28 years since the establishment of the ICTY, the former …

Antiracist Remedial Approaches In Judge Gregory’S Jurisprudence, Leah M. Litman

Articles

This piece uses the idea of antiracism to highlight parallels between school desegregation cases and cases concerning errors in the criminal justice system. There remain stark, pervasive disparities in both school composition and the criminal justice system. Yet even though judicial remedies are an integral part of rooting out systemic inequality and the vestiges of discrimination, courts have been reticent to use the tools at their disposal to adopt proactive remedial approaches to address these disparities. This piece uses two examples from Judge Roger Gregory’s jurisprudence to illustrate how an antiracist approach to judicial remedies might work.

Antiracist Remedial Approaches In Judge Gregory’S Jurisprudence, Leah M. Litman

Washington and Lee Law Review

This piece uses the idea of antiracism to highlight parallels between school desegregation cases and cases concerning errors in the criminal justice system. There remain stark, pervasive disparities in both school composition and the criminal justice system. Yet even though judicial remedies are an integral part of rooting out systemic inequality and the vestiges of discrimination, courts have been reticent to use the tools at their disposal to adopt proactive remedial approaches to address these disparities. This piece uses two examples from Judge Roger Gregory’s jurisprudence to illustrate how an antiracist approach to judicial remedies might work.

Doe V. Nestle, S.A.: Chocolate And The Prohibition On Child Slavery, Megan M. Coppa

Pace International Law Review

West Africa is presently home to approximately 1.5 million acres of cocoa farmland, which subsequently produces 70% of the world’s current chocolate supply. Côte d’Ivoire, also known as the Ivory Coast, is one of the largest cocoa producing countries within West Africa.

The increase of farmland and the need to control the deteriorating conditions have always created a demand for farm workers. Regrettably, more than 1.5 million cocoa farm workers in West Africa are currently children. These child workers are exposed to hazardous dust, flames, smoke, and chemicals, are required to utilize dangerous tools that they are not properly trained …