Dartmouth College Undergraduate Journal of Law Volume 1, Issue 1: Spring 2003

• Sexual Harassment Jurisprudence After Oncale:
  The Impact of What The Supreme Court Didn't Say
  By Curtis Leitner '04
  
  

  In Oncale v. Sundowner Offshore Services, the Supreme Court recently ruled that that same sex sexual harassment is an actionable form of sex discrimination. This article explores the impact of that decision, and the problems of interpretation it has created for the federal courts. Brian Lehman's framework for understanding sex discrimination is critiqued and expanded upon in light of Oncale. Finally, the article aims to resolve conflicts of interpretation between the different circuits.




• Avoiding Collision:
  Reconciling Sexual Harassment Law and the 1st Amendment
  By Claire B. Manske '03
  
  

  Of the numerous constitutional controversies, those that present the greatest challenge to both the Judiciary and its citizens are arguably those that address conflicts between competing constitutional precepts. This type of constitutional dispute is evident in the collision of the constitutional values of liberty and equality, manifest in the debate regarding free speech and sexual harassment regulations in the workplace. In an effort to provide insight into the greater issue of resolving colliding constitutional precepts, this article traces the roots of sexual harassment law and examines the arguments both for and against the regulation of sexual harassment speech in the workplace. Ultimately, this article reconciles the liberty and equality principles at stake by proposing an approach that balances and safeguards both sacred principles in the context of workplace speech.

• Soon Duck Kim v. City of New York:
  An Economic Analysis
  By Kristin R. Brief and Cindy Hsin-Ying Lin '04
  
  

  This article analyzes Kim v. City of New York, one of the four infamous regulatory takings cases decided in 1997. These four cases commonly referred to as the “New York Quartet” demonstrate the NY Court's stringency on holding property owners to existing statute law. In this paper, we explore the legal reasoning behind the court's decision and compare it to the opinions of similar cases. We then analyze the outcome from a Coasean perspective, and finally we apply the Michelman and Epstein efficiency tests in order to evaluate the economic efficiency of the legal outcome. We conclude that that the legal solution was in fact not economically efficient.

• Incarcerating Pregnant Women Who Use Cocaine:
  An Ethical Analysis
  By Esther Warshauer-Baker '03
  
  

  South Carolina courts hold women who use cocaine while pregnant criminally responsible for fetal abnormalities, including the loss of the fetus. Because the state of South Carolina considers a "viable" fetus equivalent to a person, women have been convicted of child abuse and homicide respectively. Here, I use Neutral Omnipartial Rule Making to evaluate this precedent. I argue that this precedent is based on scant scientific evidence and causes more harm than good to almost everyone involved, including the fetuses it aims to protect. I conclude that the precedent is not ethically sound.




• Strict Criminal Liability:
  Limiting the State's Power to Condemn
  By Andrew Verstein '05
  
  

  This paper argues against strict liability in criminal cases, the assignment of punishment without consideration of motive, recklessness, or knowledge. By defending and extending an argument first presented by H.L.A. Hart, this paper shows that strict liability necessarily weakens the moral condemnation associated with punishment, thereby reducing the deterrent effect of that punishment. Tolerance for injustice, the existence of non-condemning punishment, and localization of weakened condemnation are all shown to be insufficient defense. After mentioning that the image of mechanical justice further hurts the power of the law to condemn, I conclude that strict liability might still be warranted if these losses to deterrence are trumped by empirical evidence of an overriding deterrence associated with strict liability.

• Palazzolo v. Rhode Island:
  An Examination of the U.S. Supreme Court's Contestable Assumptions
  
  By Jopei Shih '06
  

  A landmark case in environmental law, Palazzolo v. Rhode Island redefines the boundaries between civil liberties and environmental protection. In a fractured majority opinion, the conservative justices endangered the validity of many environmental protection laws while re-affirming the supremacy of property rights. This paper examines the assumptions and assertions made in the majority opinion.