Dartmouth Law Journal
Volume 4, Issue 2: Spring 2006

• The Failure of National Treatment in The Dubal Ports World Dispute
  By Evan Simpson
  
  

  The dispute over the sale of British P&O to Dubai Ports World was the focus of much attention for its impact on American national security. Far less attention has been paid to the legal issues raised by the sale. The port dispute offers an opportunity to assess both the effectiveness of the Exon-Florio legislation on security reviews and the international principle of national treatment. US actions demonstrate a lack of commitment to this principle, which will likely impede international economic liberalization.




• Fair Treatment for Those Who "Blast, Burn, and Kill?": A Reflection on 1942 and 2001
  By William R. Levi
  
  

  This paper attempts to explain the divergence in public response to presidential orders establishing military tribunals in the wake of Pearl Harbor and the attacks of September 11. In 1942 great support for the military commission existed while the recent Order was met with vastly more resistance and controversy. First, this paper provides a contextual background describing the circumstances surrounding the 1942 proclamation and the Supreme Court Ex parte Quirin decision that gave constitutional sanction to that Order. This section establishes how Roosevelt's Order and Ex parte Quirin serve as important, even necessary, precedents to the 2001 Presidential Order. Next a discussion follows that explores the disparate reactions to the Orders. It is argued that the difference lies in the particular nature of the perceived security environments that characterized the periods in which the Orders were issued. In 1942, fears of domestic subversion coupled with hostile might overseas were the touchstones for evaluating American power and how its use should be constrained by legal standards. Conversely, the relevant recent historical antecedents in 2001 were preeminence and safety.




• Group Libel: From Beauharnals to Sullivan
  By Kristen Grauer
  
  

  “Group libel” is a form of hate speech that targets a group of people for vilification based on falsehoods about that group. The only Supreme Court case that dealt with group libel was that of Beauharnais v. Illinois, in which the Supreme Court held that a state could promulgate a law prohibiting group libel. A decade later, in the landmark case of New York Times v. Sullivan, the Supreme Court held that criticism of the official conduct of public officials is protected by the First Amendment. A number of cases since Sullivan have maintained that Sullivan undermined Beauharnais. Additionally, some have argued that the Sullivan decision gave protection to any speech that is “political” and that speech directed at groups of people fits into that category. This article argues that Sullivan did not in any way erode the Beauharnais decision, and further that any argument that seeks to give all speech that is “political” constitutional protection is overbroad and too amorphous to stand as a legal category.




• Always Connected: A Look at the Present and Future of Cell Phone Tracking
  By Thomas Sullivan
  
  

  This article focuses on recent court decisions concerning the tracking of cellular phones by law enforcement officials. Based on their interpretation of users' reasonable expectation of privacy, the courts to date have classified phones used this way as “tracking devices,” and required the government to demonstrate probable cause before obtaining “cell site data” to determine an individual's location. However, the legal interpretation of the privacy rights associated with this type of data is likely to change as advanced multifunctional devices, such as the Blackberry, come into common use and provide sophisticated means to make location information available for consumer applications.”




• The Cost of the Citation of Foreign Law: The Impact of Roper, Atkins, and Lawrence on Sosa
  By Krishanu Sengupta
  
  

  The issue of international law in United States courts has become a pivotal issue which poses the age-old questions of separation of powers, the extent of national sovereignty, and the idea of a living Constitution. As the international community, led by Western Europe and the United Nations, is moving towards judicial recognition of universally-recognized human rights, prominent Supreme Court Justices, ranging from the swing votes of Justices Sandra Day O'Connor and Anthony Kennedy, to the liberal stalwarts Justices Stephen Breyer and Ruth Bader Ginsburg, are attending international conferences with prominent justices from other nations, and using rhetoric to identify themselves as integral parts of the international community. This has provoked responses from not only more nationalist Justices such as Antonin Scalia and Clarence Thomas, but the Executive and Legislative branches of the federal government, as well. Resolutions in both the House and the Senate that call for the outright ban of the use of international law in foreign courts have been proposed and are being considered. This condemnation of international law is made without discriminating between the different applications of international law: as both an expression of the opinions of society, and the more clearly Constitutionally-delineated law of nations that directly ask the Supreme Court to consider international law and norms. It is in this second category of cases that a U.S. statute with unprecedented promise for punishing human rights offenders around the world, the Alien Tort Claims Act, falls under. The Court's unstructured citation has a large cost on its ability to prosecute human rights offenders in cases where the Constitution explicitly directs it to consider international law.



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