Dartmouth College Undergraduate Journal of Law Volume 2, Issue 2: Spring 2004

• Arkansas v. Oklahoma:
  A Case of Water Pollution
  By Layne Moffett '05
  
  

  One the most complex and difficult environmental issues our nation faces is controlling water pollution. Water pollution comes from point sources, like wastewater treatment plants and industrial plants, and non-point sources, such as agricultural runoff, detergent, oil, and acid rain. While there are many more sources for water pollution, all types of pollution our degrading our nation's waterways which has consequential effects on the entire ecosystem. Under the Clean Water Act (CWA), in cooperation with state governments, the federal government has a set up a system regulating point sources. However, since it is hard to trace and monitor non-point source pollution, there is no current means of regulating these types of sources. The inability for states to regulate non-point sources has been the cause for many transboundary water issues. The Supreme Court case, Arkansas v. Oklahoma (503 U.S. 91, 1992), is an example of a case where two states have battled over water quality standards. As a consequence of governmental inaction over the matter, the Illinois River has continued to degrade and the two states have continued to fight and battle over water quality standards for the past 11 years. This paper is an exploration of the legal issues in the case Arkansas v. Oklahoma, the consequences of the case, an evaluation of the Court's decision, an analysis of the legal and ethical issues emerging from the case, and presents recommendations for the parties to resolve the issue.




• Democratic Deficit? An Exploration of Islamic Law and the Decision-Making Process in the Modern World
  By Rebecca Perkins '04
  
  

  This paper addresses the lack of information concerning Islam and Islamic Law in Western societies, and the epic and significant cultural war that is occurring every day. The ultimate goal of the paper is to reveal the similarities between Western and Islamic systems and the fundamental values that they share. To accomplish this goal, the paper develops basic concepts of Islam, traces the textual origins of Islamic Law, and examines the real cases of Saudi Arabia and Afghanistan to deepen the reader's understanding and provide an implementation of the concepts in the paper. The conclusion focuses on the future of the Middle East, Islamic society, and democracy to reveal the hope that these societies can and will coexist peacefully in the future.




• The Evolution of Freedom in the Context of Crisis
  By Steven J. Koutsavlis '05
  
  

  This paper is based on a case entitled United States v. Jeffrey Leon Battle, et al. The case disputes the constitutionality of wiretap evidence obtained through the Foreign Intelligence Surveillance Act (FISA) - a measure which was expanded under passage of the PATRIOT Act. Prior to this expansion of FISA, the government could only use these wiretaps to obtain foreign intelligence information, and not to collect evidence of criminal activity to be used in a court proceeding. The party involved in this case consists of seven American citizens who resided in Oregon and were dubbed "The Portlan d Seven" by local media. The seven men are charged with attempting to travel to Afghanistan in the wake of September 11 in an effort to provide assistance to Taliban forces. The defense council was challenging the constitutionality of the expanded FISA measure, claiming that the act was in violation of their defendants Fourth Amendment rights. The American Civil Liberties Union filed an amicus brief, and was urging the federal district court in Portland to suppress the evidence on grounds that the wiretap orders did not comply with Fourth Amendment protections against unreasonable search and seizure. This case presents the first instance where the Foreign Intelligence Surveillance Act had been challenged in court after it was amended following September 11th. The case and its surrounding details allow a close examination of the relationship between the curtailment of constitutional rights and the prosecution of suspected terrorists in the American Criminal Justice System.




• Sexing the Masculine Subject:
  Michael M., Gender Stereotyping, and a New Paradigm for Sexual Consent
  By Steven A. Zyck '04
  
  

  The Supreme Court's justification of gender-biased statutory rape laws in the case of Michael M. (1981) has contributed to the insulting of feminine logical capabilities and the lionization of masculine sexuality. This article explores how those stereotypes of menÕs sexuality serve to cover up the rape of men and facilitate menÕs sexual violence against women. Not presuming to defend or justify menÕs sexual violence or suggest that men are victims of maliciously discriminatory laws, the arguments made in this article hope to disrupt the binary opposition in which gendered sexuality has been situated.




• The Blood Quantum and Indian Identification
  By Kathryn Clark '07
  
  

  Questions of Indian identity and identification are central to federal, state, and tribal policy. While standards for "Indianness" vary from one governing body to the next, and even from one law to the next, in general the blood quantum is an important and widely used criterion. Universities, private organizations, and research groups also rely on the blood quantum to determine, among other things, eligibility for Native American programs, allocation of minority scholarships, and participation in studies. The blood quantum measures how much so-called Indian blood a person has based on that person's ancestry. For instance, an individual with three Caucasian grandparents and one full-blood Indian grandparent would have a blood quantum of one fourth. While seemingly useful as a measure of Indian identity, the blood quantum, especially when applied by the government, is dangerous because of the assumptions it makes about race and identity. In particular, federal and state use of the blood quantum propagates a race-based notion of identity at the expense of ethnic self-identification, which is both politically paralyzing and potentially genocidal.




• Considering Coleman:
  "Negative and Positive Positivism" and "Authority and Reason"
  
  By Jonathan Sar '04
  

  Inclusive legal positivism holds that moral standards can be legally binding, provided they satisfy the conditions for legality set out by the rule of recognition. In his 1982 essay, "Negative and Positive Positivism," Jules Coleman develops his theory of law-as-convention inclusive legal positivism. In "Authority and Reason," Coleman further develops this theory in the context of law's authority. This paper critically analyzes Coleman's main arguments in each of the two essays. With regard to the second essay, it raises the objection that conjectures contained therein seriously call into question Coleman's commitment to legal positivism.




• Feminist jurisprudence and gender-based asylum claims:
  Reconstructing U.S. law in consideration of In re R-A
  
  By Amanda Behm '04
  

  The realities of persecution, debasement, and violence confronting women around the world necessitate a new approach to legal relief in the U.S. As it currently stands, U.S. asylum law, by statute and precedent, fails to adequately protect international women's rights. This paper primarily looks at the asylum case of Rodi Alvarado Pena, In re R-A-, as an example of U.S. legal failings, and, further, uses feminist grounds to critique new rules proposed by INS in recent years.




• Affirmative Action and Quotas in the Ivy League
  
  By Welton Chang '04
  

  The Supreme Court cases of Grutter v. Bollinger involving the University of Michigan's law school and Gratz v. Bollinger involving the undergraduate program, is the most recent spike in interest in the debate over the place of affirmative action in higher education. With statistical evidence gathered from common data sets, it is clear that Ivy League schools use strict racial quotas in their admissions criteria. There is a strong correlation between the number of minority admits and overall admits in a time series between the years of 1995-2002. There is also a strong positive correlation between the number of students who do not report race on their admissions applications and the number of white students who do report race. The implications of these two correlations, from both a legal and ethical standpoint are enormous for the achievement of social justice. Efforts to institutionalize diversity at Dartmouth College are used as a case-study of a mismatch in intentions and policy over the end-results of affirmative action.