Dartmouth College Undergraduate Journal of Law Volume 3, Issue 1: Winter 2005

• Disposition by Prior Directive: An Argument for the Reliance on Contracts to Settle Frozen Embryo Disputes
  By Rob Dauses
  
  

  The astounding progress of assisted reproductive technologies has pushed our traditional understanding of human life and procreation to the breaking point. In particular, the complications of in vitro fertilization and long-term cryopreservation have issued a potent challenge to our legal system: are human embryos people, property, or something in between? Furthermore, inasmuch as an embryo can be the property or the child of an adult, who determines its disposition? This paper seeks to identify and explain the many approaches to resolving disputes over frozen embryos, and ultimately recommends contract enforcement as the most transparent and equitable method.




• Pollution as Trespass: The Use of Traditional Trespass Laws to Regulate Environmental Pollution
  By Elizabeth Hadzima
  
  

  The adoption of pollution into jurisdiction under traditional trespass law was one of the earliest incorporations of environmental law into the traditional American legal regime. This paper analyzes the early 1979 case Borland v. Sanders Lead Co. Inc in which a land owner sued a secondary lead recycling plant for trespass due to pollution of their property through airborne particulates. This paper's goal is to demonstrate how this decision recognizes the emergence of an environmental law regime as a result of scientifically updated definitions of traditional notions of trespass. The paper addresses shortcomings of the decision and advocates the adoption of environmental statues into traditional common law.




• Car Chase: the Fourth Amendment's Getaway
  By Jenna Krumminga
  
  

  The Fourth Amendment ostensibly exists to protect individuals from undue searches and seizures. The Supreme Court, however, has severly limited its powers of protection for individuals when they get behind the wheel of a car. In attempting to balance the public interest in stopping crime against the individual's constitutional rights, the Court has found that the inconvenience caused by a search to the driver or passenger is typically not significant enough to prevent a search. Beyond the initial concerns about diminished security protections, evidence shows that this erosion of Fourth Amendment rights disproportionally affects minority drivers. The combined negative effects of racial profiling and diminished Fourth Amendment protections have left the integrity of the Court's recent decisions in this area under scrutiny.




• Seeds of Legal Discontent: The Luoyang Seed Law Case: A Case Study of the Rule Law in China
  By Mitzi Huang
  
  

  China's legal system lacks a clear hierarchy of law and law-making authority. Legislation passed at the different levels of the Chinese legislature do not have clear guidelines for determining relative superiority or applicability. Last year Judge Li, a judge in one of China's lower courts, struck down a local regulation as invalid because it conflicted with a national law. She was consequently relieved of her judicial post by the local 'congress for overstepping her constitutional powers. The ensuing debate over this case, which became known as the "Seed" or "Seed Law" Case, highlights the shortcomings of the Chinese legal system and demonstrates how that deficiency hinders China's procession towards the rule of law.




• Intermediate Liability and the Role of ISPs
  By Greg Holtz
  
  

  The role of Internet Service Providers as intermediaries between content and viewer suggests that they may be held accountable for harms caused by the content to which they provide access. Currently, there does not exist a clear conceptual framework in which to apply existing legal theory to this question. This paper attempts to provide such a framework, and examines the justifications for holding ISPs liable for the harms caused by the creators to which they provide occasion. I conclude by outlining a more clear policy, taking into account existing case law as applied to ISP liability.




• Tahoe-Sierra Preservation Council, Inc., v. Tahoe Regional Planning Agency: An Indispensable Beacon in Takings Jurisprudence
  
  By Jopei Shih
  

  In the murky waters of takings jurisprudence, regulation and police power of the state frequently come into conflict with constitutionally protected property rights. Key questions arise as to the application of laws designed to protect the public interest: How far can the government go with its land-use restrictions? Aren't property owners protected from government taking of property without just compensation? In Tahoe-Sierra Preservation Council, Inc., v. Tahoe Regional Planning Agency (2002), the U.S. Supreme Court analyzes and clarifies the precedents and legal tests by which land-use ordinances and restrictions are determined to be unconstitutional. Instead of seeking an increasing broadening of property rights, Tahoe affirms the 'parcel as a whole' rule that distinguishes whether or not a taking has occurred on a case-by-case basis. The ambiguity introduced in recent years by the application of Lucas v. South Carolina Coastal Council's categorical rule has been effectively curtailed, resulting in a test that does not paralyze government while still protecting the interests of property owners.




• Narrowly Tailored Equality: Racism's Legacy and Affirmative Action in America
  
  By E. Brantley Webb
  

  Current Equal Protection jurisprudence scrutinizes racially 'benign' affirmative action programs under the same high standard of scrutiny that it once applied to ostensibly discriminatory law. This paper argues that the current Court's rigorous application of the strict scrutiny standard to modern-day government attempts to alleviate racial stratification disconnects the law from America's social reality. It urges that the Court move away from the strict scrutiny test towards a more holistic interpretation of the Equal Protection Clause that takes into account both legislative intent and the actual effects of race-based public policy.