Comparative and Foreign Law Commons^™

The Ambiguity That Isn’T: Why Same-Sex Marriage Is Legal In American Samoa, Dante Cade Harootunian, Sammi Lawrence

American University Journal of Gender, Social Policy & the Law

After the U.S. Supreme Court ruled in Obergefell v. Hodges that prohibitions on same-sex marriage violate the equal protection guarantees of the U.S. Constitution, several government officials in American Samoa issued statements claiming that the decision had no effect in American Samoa, and, to date, no same-sex couples have

applied for a marriage license in the territory. This Article analyzes the Obergefell decision in light of other federal and territorial court decisions that determined the applicability of constitutional rights to U.S. territories and concludes that, despite the statements of local officials, the Obergefell decision applies in American Samoa, and the …

Dualisme Tujuan Pembebanan Uang Pengganti: Analisis Putusan Angelina Sondakh Di Berbagai Tingkat Peradilan, Valencia Puspa Novandra Ali, Tamsil .

Jurnal Hukum & Pembangunan

Studi ini meneliti perbedaan interpretasi dan penerapan hukuman tambahan berupa restitusi (uang pengganti) dalam kasus korupsi melalui analisis komparatif keputusan Angelina Sondakh di pengadilan tingkat pertama, pengadilan banding, pengadilan kasasi, dan pengadilan peninjauan yudisial. Muncul interpretasi ganda antara memandang restitusi sebagai kompensasi atas kerugian keuangan negara dan sebagai mekanisme untuk menyita keuntungan ilegal. Judex facti menolak penerapan restitusi dengan alasan bahwa tidak terjadi kerugian negara dalam kasus suap dan gratifikasi, sementara judex juris di tingkat kasasi menafsirkan restitusi sebagai instrumen pemulihan aset yang ditujukan untuk keuntungan yang diperoleh secara ilegal. Orientasi konseptual yang bertentangan ini menghasilkan perbedaan signifikan dalam penjatuhan …

Kedudukan Putusan Peradilan Etik Sebagai Keputusan Tata Usaha Negara: Studi Kasus Gugatan Hakim Konstitusi Anwar Usman, Satrio Febriyanto

Jurnal Hukum & Pembangunan

As an effort to concretize ethics, there is a process of formalizing ethics into a set of rules through a code of ethics. The code of ethics needs institutional enforcement instruments so that it can be effectively applied through ethical trials. Ethical courts, as institutions that adjudicate violations of the code of ethics, have the authority to issue decisions as a follow-up to cases of violations of the code of ethics that they handle. In carrying out its duties, ethical courts use ethical and moral analysis to assess the appropriateness of an action. This analytical approach differs from legal decisions …

Constraining Citizenship: Presidential Threshold In Indonesia’S Judicial Framework, Arfan Yanayir Akbar Sabillilah

Jurnal Hukum & Pembangunan

This research critically evaluates the constitutionality of Indonesia's Presidential Threshold as regulated by Article 222 of Law No. 7/2017, requiring political parties or coalitions to secure 20% of DPR seats or 25% of national valid votes for presidential nominations. The term “Presidential Threshold” follows Constitutional Court jurisprudence, distinguishing it from the election threshold in Article 6A(3) requiring 50%+1 votes to win the presidency and the parliamentary threshold in Article 414 requiring 4% of votes for legislative seat allocation. Through normative legal analysis of Constitutional Court decisions No. 51-52-59/PUU-VI/2008, 53/PUU-XV/2017, and 62/PUU-XXII/2024, this study examines 33 judicial reviews from 2017 to …

Justice In Erotic Spaces, Elena L. Cohen

Cardozo Journal of Equal Rights & Social Justice

This Article posits that the concept of "erotic justice" could be used by courts to push back against the current cascade of anti-LGBTQ+ laws and meaningfully improve the lives ofgay and trans people. The beginning of the twenty-first century was widely seen as a time of great progress for LGBTQ+ people, with the legalization of gay marriage in countries across the world seen as the ultimate triumph. Yet there is a strong contemporary movement to re-criminalize the lives of LGBTQ+ people and to remove protections that have been granted by courts. In the U.S., the 2020s have seen an ongoing …

Copyright Eligibility For Ai Works Under United States Law, Roger V. Skalbeck

Law Faculty Publications

This article examines copyright eligibility for works that incorporate generative AI elements under United States law, explaining that such works may be protected only to the extent they contain human-authored expression.  This expression can appear as creative selection, arrangement, editing, or other expressive contributions, while unedited or autonomously generated AI output is not copyrightable. The article highlights how the U.S. Copyright Office’s registration and review system, through disclosure requirements, refusals, and public registration records, creates meaningful evidence about boundaries of copyright protection for AI-assisted works. The article contrasts this U.S. registration framework with other legal systems, including European jurisdictions such …

How The U.S. Constitution Shapes International Tax Law: Instrument Choice In Tax Agreements, Noam Noked, Young Ran (Christine) Kim, Reuven Avi-Yonah

Articles

The U.S. Constitution’s Treaty Clause, which requires Senate approval by a two-thirds vote for treaties, has significantly influenced the development of international tax law. This Article examines the implications of Senate supermajority requirements on bilateral and multilateral tax treaties and agreements, alternative instruments, relevant international tax standards, and global tax governance.

Historically, tax treaties have been approved exclusively as Article II treaties requiring Senate approval. The difficulty of entering into treaties with the United States has influenced the instrument choice and design of U.S. and international tax standards. To address this challenge, several U.S. and international tax reforms have employed …

Reassessing Indonesia's In-Kind Benefit Tax Regulation: Insights From Australia, Florencia Irena Gunawan, Maria Na Uli Salsabilah Sabililah

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

This research critically assesses Indonesia's in-kind benefit tax regulatory framework based on the principles of equity, certainty, and neutrality, drawing comparative insights from Australia's fringe benefits tax system. Utilizing a normative juridical method, this study finds that integrating in-kind benefits into Indonesia's income tax framework poses several challenges. First, under the equity principle, current valuation methods do not accurately reflect employees' ability to pay, potentially resulting in inequitable tax burdens. Second, under the certainty principle, ambiguities in the exemption rules may create risks of differing interpretations between taxpayers and tax authorities. Third, under the neutrality principle, differential treatment across industries …

Achieving Judicial Consistency Through The Establishment Of Civil And Criminal Chambers In Indonesia's District And High Courts, Dwi Bintang Satrio, Efa Laela Fakhriah, Artaji Artaji

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

The Supreme Court of the Republic of Indonesia has implemented the chamber system to achieve judicial consistency and fulfil the fundamental objectives of law, namely legal certainty, justice, and expediency. However, despite this effort, inconsistencies in judicial decisions remain prevalent, particularly in civil and criminal cases at the district and high court levels. This study employed a normative juridical approach supported by case analysis to examine the effectiveness of the current chamber system in achieving judicial consistency and to identify structural weaknesses that hinder its optimal implementation. The results reveal that judicial inconsistencies are found in several court decisions, such …

The Death Penalty For Bribery-Related Corruption In Social Assistance During Non-Natural Disasters: A Legal Certainty Perspective, Elly Sudarti, Sahuri Lasmadi, Andi Agus Salim, Riana Devi Lestari, Mohammad Thoriq Bahrie

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

This article analyzes the judge's verdict regarding the bribery corruption of social assistance during a non-natural disaster committed by Juliari Batubara. It questions whether such bribery corruption can be punishable by the death penalty. Juliari was not sentenced to death because the law only threatens the death penalty under natural disaster conditions, and COVID-19 is not considered a natural disaster. The death penalty is only threatened for corruption under Article 2, paragraph 2, not for bribery corruption. The judge's decision followed conventional legal norms, resulting in a verdict that was overly normative and failed to address the issue. This article …

Reapproaching International Law Through Twail: Reclaiming Marine Sovereignty And Rights Of The Global South Within Law Of The Sea, Ria Wierma Putri, Febryani Sabatira, Orima Melati Davey, Afandi Sitamala

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Third World Approaches to International Law (TWAIL), also understood as a theory of decolonizing international law, offers a critical framework for analyzing the historical evolution of international law and its continuing impact on Global South nations. This article examines TWAIL's perspective within the Law of the Sea, with particular attention to the ways in which the dominance of marine resource use by industrialized states perpetuates structural inequities over less powerful states. Since the 1950s, TWAIL scholars have emphasized the importance of amplifying Global South voices to challenge entrenched colonial legacies and reshape the future of international law. The purpose of …

Debating Expert Authority In Corruption Cases: The Challenge Of Interpreting State Financial Losses Under The 2023 Indonesian Criminal Code, Wendy Kenafiana Assanti, Hendry Julian Noor

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

The 2023 Indonesian Criminal Code revises the formulation of corruption offenses, including rules on proving state financial losses; however, the elucidation of Article 603 raises questions regarding the competent institution and the evidentiary weight of audit results. This study examines how the provision may perpetuate ongoing debates over experts’ authority to determine state financial losses, which are often perceived as affecting legal certainty, and proposes a reformulation to provide clearer legal guidance. This doctrinal study employs statutory and case law approaches, utilizes qualitative methods, and applies Gustav Radbruch’s perspective as an analytical lens. It finds that Article 603’s elucidation uses …

Legal Implication And Solution: The Exemption For Apartment And Flat Developer's Bankruptcy Request As Insufficient To Meet Simple Proof Requirements, Veri Antoni, Azka Farrell Razaga

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Supreme Court Circular (SEMA) 3/2023 states that apartment and/or flat developers do not meet the simple proof requirements referred to in Article 8 paragraph (4) of Law 37/2004. This paper aims to answer what is the legal implication of the exception to the bankruptcy request against apartment and/or flat developers that were considered insufficient to meet the simple proof requirement in SEMA 3/2023? and what the solutions as a recommendation that can be provided? This research is normative legal research that employs legislative, conceptual, and comparative approaches through document studies to obtain secondary data. Simple proof in bankruptcy law refers …

Antitrust In Practice: Case-Based Comparative Analysis Of Predatory Pricing Enforcement In Indonesia And The United States, Anna Maria Tri Anggraini, Ahmad Sabirin, Farhandi Himawan

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Business entities employ predatory pricing as a strategy primarily aimed at eliminating competitors. The regulation and detection of predatory pricing are complex processes, and each country adopts distinct mechanisms to address the issue. The scientific contribution of this study lies in its comparative analysis of two different legal systems—Indonesia’s civil law and the United States’ common law—in addressing predatory pricing practices under competition law. It examines how differing legal frameworks influence the methods of proof, the application of the rule of reason principle, and the pattern of sanctions imposed on business actors. In addition, this study adopts an interdisciplinary approach …

Penggunaan Metode Socrates Dalam Mengembangkan Pendidikan Tinggi Hukum Di Indonesia, Syarifah Lisa Andriati, Inneke Kiki Rizki, Ain Najwa Binti Mohd Malian

Jurnal Hukum & Pembangunan

The ability to think critically and have the ability as a problem solver is needed in higher education Law in Indonesia. One of the methods used is the Socratic Method. Critical thinking is one of the aspects that law students must have to improve their ability as problem solvers. This research was conducted to contribute that the application of the Socratic method is effective to be applied in the learning process of higher education in Indonesia, as well as to provide evaluation and knowledge about the challenges and obstacles that will be faced in the process of applying the Socratic …

Mogok Kerja Tenaga Medis: Problematika Pada Uu Ketenagakerjaan Dan Pilihan Model Pengaturannya, Rama Agung

Jurnal Hukum & Pembangunan

The issue of healthcare workers' strikes remains complex in terms of regulatory frameworks. On one hand, there is a conflict of interest between public interest in access to healthcare services and, on the other, the Labor Law, which regards the right to strike as a fundamental right of workers, integral to collective bargaining. This paper examines the challenges in regulating healthcare workers' strikes by analyzing Article 139 of the Labor Law and exploring regulatory models that support the provision of high-quality healthcare services. The findings highlight several key points. First, Article 139 of the Labor Law does not yet provide …

Tapera: Melindungi Hak Atas Tempat Tinggal Atau Mengancam Kehidupan Yang Layak, Elizabeth Jeneva Samuella, Ida Susanti

Jurnal Hukum & Pembangunan

This study examines the People's Housing Savings (TAPERA) policy in the context of protecting the right to adequate housing and its impact on the decent living conditions of workers. Under TAPERA regulations, all workers are required to set aside a portion of their salary, including those who already own a home. While this policy aims to improve access to adequate housing, it raises questions about its impact on purchasing power and the fulfillment of other basic needs. The study employs an interdisciplinary approach using socio-legal methods to evaluate whether the mandatory TAPERA contributions can be considered a violation of the …

Lahirnya Tensi Metafisik Di Urat-Leher Projek-Projek Interpretasi Konstruktif, Herman Bakir, Mukhtasar Syamsuddin

Jurnal Hukum & Pembangunan

This project is a legal hermeneutics. The aim is to elaborate the paradigm of the law as integrity theory, Ronald Dworkin’s work, which has received recognition as one of the most influential philosophical systems in the world of law throughout the last century. The issues discussed are divided into three subjects: (1) the interpretation role in legitimizing “law” as a corpus that has a “soul”; (2) a concept of interpretation from the womb of the law as integrity theory; (3) the dual capacity of “constructive interpretation” in [a] “returning” law to its roots; and [b] housing “morals” within the body …

Diskursus Kriminalisasi Pemidanaan Terhadap Pemberi Gratifikasi, Muhammad Fatahillah Akbar

Jurnal Hukum & Pembangunan

This article aims to examine the legal basis to prosecute gratifiers in Indonesian Corruption Justice System. Samin Tan as the giver of gratification to Eni Maulani Saragih had been acquitted by the Corruption Court of Jakarta Decision Number 37/Pid.Sus-TPK/2021/PN.Jkt.Pst on 30^th August 2021. Then, the Cassation to Supreme Court had also been rejected by Supreme Court Decision Number 2205 K/Pid.sus/2022 on 9^th June, 2022. Hence, Samin Tan stays acquitted. The decision majorly focuses on the “absence” of law which criminalizes gratifiers or gratification givers. Therefore, this article elaborates how similar cases shall be handled in the future. In …

Ghosts At The Gate: A Call For Vigilance Against Ai-Generated Case Hallucinations, Christina Frohock

Articles

No abstract provided.