Comparative and Foreign Law Commons^™

How Legal Systems Reflect Societal Views Of Nature, Devorah Corvo

Latin American & Caribbean Law Review

Pre-Columbine Indigenous communities differed from European settlers in many ways. One of the most striking differences was the way each group viewed itself in relation to nature and wildlife. Indigenous communities generally did not see themselves as separate from the natural world, while European settlers often viewed themselves as distinct from it. In the United States today, many people care about the environment but are unsure how to protect it. By contrast, pre-Columbian Indigenous communities were so deeply connected to their surroundings that harm to wildlife would have been seen as harm to the community itself. By examining three pre-Columbian …

Digital Media And Its Effect On Domestic And International Copyright, Jasmine Martin

Latin American & Caribbean Law Review

This article explores the history of modern copyright law and identifies the pitfalls of a legal framework built around physical media, such as the doctrines of first sale and fair use. As markets have shifted to digital distribution, these doctrines have been weakened or displaced by licensing regimes that redefine ownership as limited access. The article argues that this transition has systematically eroded consumer rights, allowing copyright holders to impose restrictions through contracts and technological controls that bypass traditional protections.

Lessons From The Fall Of The Roman Empire: The Patent Law Edition, Emma Masters

Latin American & Caribbean Law Review

This article examines the crises threatening the U.S. Patent System through the historical lens of the fall of the Roman Empire, arguing that a loss of predictability and the hollowing out of property rights threaten to dismantle American innovation. Drawing parallels between the Roman Empire’s economic decay and modern legal trends, this piece explores how costly litigation—often surpassing millions of dollars—and the rise of “efficient infringement” among other troubling phenomena, act as a “tax” on innovation that disproportionately stifles small and medium-sized enterprises (SMEs). The U.S Patent System’s original purpose of incentivizing innovation is being compromised by patent thickets, a …

Pandemic Power Plays: Environmental Deregulation & Erosion Of Indigenous Rights In Latin America During Covid-19, Sabrina Prado

Latin American & Caribbean Law Review

The COVID-19 pandemic reshaped global politics. Many governments used their emergency powers under the pretense of maintaining public health and sustaining the economy. However, in Latin America, these powers were exploited and the pandemic became a guise for expanding executive powers and propounding corporate friendly rollbacks which weakens environmental protections and minority rights. This paper will examine how emergency laws were used to sidestep the democratic process and facilitate policies that benefited corporate interests at the expense of environmental regulation and indigenous rights specifically. Brazil, Colombia, and Bolivia were three countries whose leaders centralized power and accelerated environmentally destructive policies …

The Silent Bench: How The Chilean Judiciary Failed To Check Pinochet's Executive Power And The Continued Struggle For Judicial Independence, Daniela González García

Latin American & Caribbean Law Review

Although authoritarian regimes are often associated with lawlessness, many consolidate power through carefully crafted legal framework that create the illusion of illegality. Chile under Augusto Pinochet offers a critical case study of this phenomenon. In Chile, Pinochet ushered in his “authoritarian legality” after spearheading a military coup in 1973 that toppled a democratically elected left-wing government. Through Chile’s 1980 Constitution, drafted by hand-picked loyalists and approved in a tightly controlled setting, Pinochet’s regime embedded executive supremacy, restricted judicial review, and transformed Chile’s courts into a silent bench. Applying David S. Clark’s theory that judicial review must be evaluated within a …

Invisible Empires: Transnational Illicit Trade & The Global Threat To Law And Justice, Víctor Hugo Guerra Hernández

Latin American & Caribbean Law Review

Transnational illicit trade has evolved beyond the mere economic and individual concerns of public or private sectors isolated. It now poses a profound threat to the integrity of democratic institutions, the rule of law, and global justice systems. This article explores the intricate links between illicit international trade and transnational organized crime within the concepts of a postmodern State. The article demonstrates how these criminal and clandestine networks undermine state sovereignty, fuel corruption and international briberies, and erode public trust. By analyzing the legal, political, and socio-economic dimensions of illicit markets, from old fashioned contraband activities to modern trafficking of …

Constitutions, The State And Law In Republican Venezuela (1830-2025), Rogelio Pérez-Perdomo

Latin American & Caribbean Law Review

This panoramic article poses the question of the relation between the state, the constitution and the law in Venezuelan republican history. In the 19th century, Venezuela became independent, congresses approved constitutions that organized the national state, comprehensive legal codes and legislation were produced and the universities developed legal studies and produced a small number of lawyers. Nevertheless, the law had little impact on a turbulent and impoverished country, and lawyers mainly found occupation in the state and political system. In the 20th century, Venezuela constructed a powerful state that pacified the country that created conditions for a relatively prosperous economy. …

Fiscal Sustainability And The Courts In Colombia, Eleonora Lozano-Rodríguez

Latin American & Caribbean Law Review

This text offers a theoretical and conceptual approach to fiscal sustainability and to the mechanism of fiscal impact review. It also examines specific judicial cases where fiscal sustainability and/or fiscal impact review have been applied in areas such as social security, victims of the Colombian internal armed conflict, community mothers, and taxation. The article concludes that the difficult dialogue between law and economics has improved, though legal nuances still need clarification, and economic advantages or disadvantages remain to be measured. At times, the guarantee of rights prevailed (for example, compensation for Black, Afro-Colombian, Raizal, and Palenquero communities, as well as …

A Sociolegal Explanation Of The Judicial Reform In Mexico, Alberto Abad Suárez Ávila

Latin American & Caribbean Law Review

This paper aims to offer a socio legal explanation for Mexico’s ongoing judicial reform, which shifts from a civil career paradigm for appointing judges to a popular election model. Most scholars have explained the reform mainly because of populism and constitutional authoritarianism. They focus on the political and normative factors. I would like to broaden the perspective: using a sociolegal approach, I consider other relevant factors, including some economic context as well as cultural aspects, to provide a more comprehensive explanation of the phenomenon.

On The Need To Recognize The Erga Omnes Effect In Fundamental Rights In Chilean Law, José Luis Guerrero Becar

Latin American & Caribbean Law Review

This article refers to the Chilean legal tradition of the relative effect of judgments, that is, their effects apply only to the parties involved in the litigation. This principle has an express exception in the Consumer Rights Protection Act, which mentions the erga omnes effect. Since 2010, this principle has come under scrutiny due to constitutional injunctions in social security matters administered by private companies known as ISAPRES (National Health Insurance Companies). These companies have increased the prices of health plans, using tables that apply factors based on age and sex. This has led to the filing of thousands of …

Illegal And Informal Mining And The Violation Of Fundamental Rights: The Peruvian Case, Carla Mares Ruíz

Latin American & Caribbean Law Review

This article critically examines the impact of illegal and informal mining in Peru and its relationship with the violation of fundamental rights, with particular emphasis on the rights to health, a healthy environment, and effective judicial protection. It also examines the regulatory evolution of the formalization process for artisanal and small-scale mining (ASM), placing special emphasis on the resounding failure of these laws and the perverse effects of the continuous extension of REINFO (Comprehensive Registry of Mining Formalization), particularly with regard to the expansion of ilegalmining and the promotion of impunity. The paper also explores the environmental, social, and criminal …

Algorithmic Law In Contemporary Brazil: From Cyber-Libertarianism To Constitutional Rights, Pedro Rubim Borges Fortes

Latin American & Caribbean Law Review

This article provides a reflection of Brazilian algorithmic law, exploring how law regulates algorithms by defining prohibitions, permissions, standards, and rights in contemporary Brazil. Importantly, the concept of “algorithmic law” implies a normative idea, that is, that law should regulate algorithms, defining prohibitions, permissions, standards, and rights. This study examines the ideological transformation of law and technology, as Brazilian society moved from a libertarian approach to a perspective of establishing protective legislation, regulation, and constitutional rights to technology users. It explains the ‘Civil Rights Framework for the Internet.’ the ‘General Data Protection Law,’ the legislative project of an Artificial Intelligence …

The Alien Enemies Act Of 1798, Andrew Kent

Fordham Law Review

For the first time since World War II—and for the first time ever outside a formally declared war—an American president has invoked the Alien Enemies Act of 1798 to detain and deport noncitizens. Enacted during the Quasi-War with France, the Act’s operative language remains largely unchanged today. In March 2025, President Donald J. Trump proclaimed that members of the Venezuelan gang Tren de Aragua present in the United States are “alien enemies,” asserting that their activities, allegedly coordinated with President Nicolás Maduro’s government, constitute an “invasion” or “predatory incursion” within the meaning of the statute. Litigation challenging the invocation of …

Mengenal Hcch 1970 Taking Evidence Abroad Convention, Priskila Pratita Penasthika

Jurnal Hukum & Pembangunan

Since mid-2023, the Supreme Court of the Republic of Indonesia has prioritised the strengthening and harmonisation of Indonesian civil procedural law to better align with international practices and standards. This initiative seeks to enhance the competitiveness of Indonesian judicial institutions in resolving commercial disputes through acceding to relevant private international law instruments. The HCCH 1970 Evidence Convention is among the key private international law instruments identified by the Supreme Court as a priority for Indonesia's accession. Nonetheless, academic literature in the Indonesian language on private international law instruments, particularly those issued by the Hague Conference on Private International Law (HCCH), …

Haruskan Debitur Mengatakan "Ya"? Menyoal Persetujuan Debitur Dalam Pengalihan Piutang Oleh Bank, Ihsanuddin Nursyie

Jurnal Hukum & Pembangunan

Financial Services Authority Regulation No. 26 of 2024 concerning the Expansion of Banking Business Activities requires the inclusion of an assignment of receivables clause in credit agreements and, where such a clause is not provided, requires the debtor’s consent before the assignment is carried out. This article analyzes the appropriateness of debtor consent as a protection instrument in the assignment of receivables through cessie. This research employs a doctrinal legal method by analyzing legislation, legal doctrines, and relevant literature. The findings indicate that debtor consent is not an inherent requirement of cessie, while the risks to debtor protection are more …

Dari Penafsiran Ke Konstruksi Konstitusi: Evolusi Putusan Mahkamah Konstitusi Tentang Keserentakan Pemilihan Umum, Khairul Fahmi, Desip Trinanda

Jurnal Hukum & Pembangunan

Abstract

The Constitutional Court's decisions regarding election simultaneity demonstrate a highly progressive development in constitutional reasoning. The Constitutional Court has issued at least three decisions related to the election simultaneity model: Decision Number 14/PUU-XI/2013, Decision Number 55/PUU-XVII/2019, and Decision Number 135/PUU-XXII/2024. So far, studies of these decisions have tended to be placed within the framework of constitutional interpretation. However, the Constitutional Court's stance in Decision Number 135/PUU-XXII/2024 goes beyond merely interpreting the constitution to also construct a constitutional provision on election simultaneity by separating national and local elections. Therefore, the focus of this article is the shift in the Constitutional …

Rekonstruksi Pengawasan Peradilan Substantif Atas Perjanjian Penundaan Penuntutan Korporasi Dalam Perspektif Civic Trust Dan Reintegrative Shaming, Merlin Swantamalo Magna, Ariesta Wibisono Anditya

Jurnal Hukum & Pembangunan

Law Number 20 of 2025 on the Criminal Procedure Code introduces the Deferred Prosecution Agreement (DPA) as a special mechanism for corporate offenders. Article 328(8) grants judges substantive authority to assess proportionality, the impact on the national economy, and the suspect's ability to meet the agreed conditions—yet provides no clear parameters. This absence risks legal uncertainty, judicial formalism, and abuse of power, while colliding with the presumption of innocence within Indonesia's civil-law tradition, in which judges have traditionally played a passive role. This study aims to construct a dogmatic framework for judges' substantive judicial-supervision authority in the DPA mechanism. Employing …

Reconstructing The Enforcement Of The Code Of Ethics For General Elections In Indonesia: A Prophetic Law Perspective, Fradhana Putra Disantara, Ratih Listyana Chandra, Aan Efendi, Iwan Rachmad Soetijono, Souad Ahmed Ezzerouali

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

This research examines the reconstruction of ethical code enforcement for election organizers in Indonesia through the perspective of prophetic law, arguing that ethical adjudication should extend beyond procedural compliance by integrating humanization, liberation, and transcendence as normative foundations of substantive justice. Employing doctrinal legal research, the study uses statutory, conceptual, case, and comparative approaches. It compares Indonesia's regulatory framework with the ethical governance systems of India and the United States to identify institutional models that strengthen integrity while respecting distinct constitutional traditions. The findings demonstrate that ethical adjudication differs fundamentally from administrative law: it governs the forum internum of election …

Cultural Considerations: A Discussion Of Schematic Information Processing In African Plea Bargaining, Emma Joy Mcarthy

Pepperdine Dispute Resolution Law Journal

Plea bargaining is a prominent form of alternative dispute resolution: it is the method of resolution for nearly 98% of criminal convictions in the United States and is growing in popularity worldwide, including across the continent of Africa. In many ways, plea bargaining reflects traditional restorative justice models practiced in Africa prior to the introduction of adversarial and retributive Western practices. This comment discusses schematic information processing, exploring how cultural influences shape the schemas held by members of African nations in contrast to Western ways of thinking. A deep value for community and an emphasis on relationships is at the …

The Normative Status Of States' Obligations To Mitigate The Climate Crisis: Implications For The Right To Adequate Housing, Erna Dyah Kusumawati, Sasmini Sasmini

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

The convergence of the global climate crisis, pursuant to the UNFCCC Paris Agreement and its implementing protocols as well as the fundamental right to housing has fundamentally disrupted established legal paradigms, necessitating a rigorous re-examination of the normative status of state obligations. This paper examines the scope of governmental responsibility to mitigate climate-induced threats to housing security. Drawing upon international human rights frameworks and contemporary legal discourse, the study interrogates the complex friction emerging at the intersection of environmental mandates and housing protections. Through a systematic analysis of the existing literature and recent developments in the international climate change framework, …