Dartmouth College Undergraduate Journal of Law Volume 3, Issue 2: Spring 2005

• Free Speech and its Limits on College Campuses: A Criticism of Critical Race Theory and its Justification for Campus Speech Codes
  By Michael R. Herman
  
  

  The Foundation for Individial Rights in Education (FIRE) recently upgrading Dartmouth's speech rating from a “Red Light University” to a “Green Light,” stating that Dartmouth now nominally respects freedom of speech on campus. Nonetheless, Dartmouth still has lasting problems with free speech on campus. The degree of First Amendment protections afforded to students at colleges across the country remains a contentious and contraversial issue. This paper attacks a major philosophical argument presented in favor of speech regulations, critical race theory. An analysis of legal precedent indicates that speech regulations on college campuses would be unconstitutional should courts have jurisdiction over them. Finally, this paper attacks the philosophical arguments behind critical race theory, concluding that speech codes would cause more harm than they seek to prevent.




• Racial Profiling, Effective Law Enforcement, and the Effect on Minority Communities
  By Gregory M. Holtz, II
  
  

  Proponents of racial profiling contend that the practice is a means of effective and efficient law enforcement, while opponents argue that it negatively affects minority communities and diminishes the legitimacy of the criminal justice system. This paper analyzes those arguments before outlining a legal framework within which racial profiling might be challenged.




• Jurisprudence Transcending Time and Space: Affirmative Action and the Revolution of 1937
  By William Blake
  
  

  The purpose of this paper is to compare the jurisprudential debate on affirmative action to economic rights questions facing the Court during the Lochner Era. Proponents of the antidiscrimination principle believe that all racial classifications, including affirmative action, are unconstitutional, a view that corresponds with Lochner v. New York. Supporters of the anti-caste principle support affirmative action programs as a means to ensure that the circumstances of one's birth do not preclude the opportunity to succeed, a principle similar to West Cost Hotel v. Parish. These similarities demonstrate that legal principles reflect evolving notions of American ideals present throughout our history.




• Acts of Fear: An Analysis of the Constitutionality of the Civil Commitment of Sexually Violent Predators
  By Justine M. Nagurney
  
  

  This article addresses the constitutionality of the civil commitment of sexually violent predators. The article reviews the precedent set by the civil commitment of the mentally ill as outlined in O'Connor v. Donaldson, Addington v. Texas and Foucha v. Louisiana. It analyzes the expanded concept of mental abnormality discussed in Kansas v. Hendricks and Kansas v. Crane. It then examines whether the criteria of “mental illness” and “dangerousness” for civil commitment offer enough of a limiting principle to render the acts constitutional. The circularity of the definitions and methods of diagnosing mental abnormalities in sexual offenders appear to collapse the two criteria into a single standard of dangerousness, which is not sufficient to meet constitutional standards. The difficulty of ascertaining the “dangerousness” of sexually violent offenders is examined in light of the empirical evidence. The paper ultimately concludes that sexually violent offenders do not constitute a unique threat that necessitates legislation beyond that used for the civil commitment of the mentally ill.




• An Affront to Anonymity: The Criminalizing of Silence in Hiibel
  By Liza B. Williams
  
  

  This paper examines the recent decision of the Court in Hiibel v. Sixth Judicial District Court of Nevada Humboldt City (2004), weighing the relative interests of a right to anonymity as encompassed in the stipulations of the First, Fourth, and Fifth Amendments against the power of the state to fight crime. The argument advanced questions the inconsistency of the Hiibel Court in dismissing fundamental arguments residing within jurisprudential claims about the requisite meaning of the First, Fourth, and Fifth Amendments.




• Evading the Constitution: The Solomon Amendment's Violation of Free Speech and the Military as Warrior in the Kulturkampf
  
  By John M. Olsen
  

  Shielded by the rationale of “military discretion,” Congress has been increasingly successful in justifying disproportionately conservative social policies when those policies come under scrutiny by the Supreme Court. Today, through its enforcement of the Solomon Amendment, Congress is using just such a justification to influence the place of gays and lesbians in civilian America. In its upcoming term, the Supreme Court will decide on the Solomon Amendment's constitutionality. Unfortunately, the Court's decisions in recent cases suggest that, regardless of the actual constitutionality of the amendment, the Court is likely to let it stand.




• Invoking the Doctrine of Forum Non Conveniens: A Comparison of Defensive Tactics and a Practical Assessment
  
  By Aaron L. Levenstadt
  

  A rejuvenated debate over the legal doctrine of forum non conveniens (FNC) is attributed to an increase in international trade and the rise of multinational corporations. The global activity of these companies renders them potentially amenable to legal proceedings in several countries. The FNC doctrine is a tool to help select the most appropriate host nation. This paper focuses on the application of the FNC in cases involving the Alien Tort and Claims Act (ATCA), the oldest American law still in force. Two classes of ATCA cases are analyzed: those that have been dismissed to foreign forums on FNC grounds and those that have resisted the motions to dismiss. The reasons why certain cases are dismissed while others are retained are detailed. Finally, following this analysis I argue that the significant deference awarded to American plaintiffs relative to non-Americans is discriminatory and contrary to the goals of the FNC doctrine.

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