Dartmouth Law Journal
Volume 5, Issue 1: Winter 2007

• The John Sloan Dickey Essay on International Law, How “Wilsonian” Was Woodrow Wilson?
  By Mark Weston Janis
  
  

  This essay reveals how President Woodrow Wilson's passion for international law slowly developed over several stages in his life from his professorship at Princeton to his presidency. By exploring Wilson's conversion from a skeptic of international law to one of its greatest proponents, the author shows how Wilson's world view shaped American foreign policy and the political landscape.




• Resolving Disputes Through Alternative Dispute Resolution
  By Gerald F. Phillips
  
  

  In this essay the author introduces the ways in which disputes can be resolved through Alternative Dispute Resolution (ADR) in order to avoid costly and protracted litigation. ADR is divided into two categories: arbitration and mediation. Arbitration is a process by which the two sides voluntarily substitute a private hearing for a public trial. Mediation calls for the involvement of a neutral third party who is charged with facilitating discussion and negotiating a settlement between the parties. These methods of conflict resolution are in many cases preferable to litigation and our nation should spend more time and resources educated its citizens about their benefits.




• The Struggles For Sovereignty: Native Americans And The Law
  By Dartmouth Law Journal
  



• Suffocating Sovereignty: Implicit Divestiture And The Violation Of First Principles
  By Andrew K. Fletcher
  

  In this article, I demonstrate that the new "colonial trilogy" of Oliphant v. Suquamish Indian Tribe, Montana v. United States, and Nevada v. Hicks has fundamentally undermined tribal sovereignty, which was first asserted in the Marshall Trilogy of Johnson v. McIntosh, Cherokee Nation v. Georgia, and Worcester v. Georgia. I begin by explicating each of the foundational Marshall decisions in order to determine the true nature of "Indian title," a right of occupancy extinguishable only to the United States Government, and "tribal sovereignty," a limited power of autonomy subordinate only to the United States federal government as understood in the American judicial system. I then exhibit how the notion of tribal sovereignty survived into the modern era. Next, I illustrate how the Supreme Court decisions of Oliphant, Montana, and Hicks, through their introduction of "implicit divestiture," the ability of the Supreme Court to solely determine the extent of an Indian Nation's sovereignty, are extraordinarily detrimental to the original principle set out by the Marshall Trilogy. Finally, I argue that this novel approach to federal Indian policy must be overturned if any progress in the area of tribal sovereignty is to occur.




• Truncated Sovereignty: Flaws and Follies in MONTANA
  By Jeremy Rohrlich
  
  

  This paper criticizes the Supreme Court's 1981 decision in Montana v. United States, wherein they held that Indian tribes do not maintain the power to regulate the hunting and fishing of non-Indians on non-Indian owned land within the boundaries of the reservation. The Montana Court erred in looking to treaties drafted before there was non-Indian-owned land within reservations for an indication of tribal powers. Additionally, by looking to the General Allotment Act for an indication of Congressional intent, the Court endorsed the archaic and offensive principles of the Allotment Era. Finally, the Court was wrong to extend the "implicit divestiture" doctrine to a civil case and to support that extension with dicta from a tangential case. The Montana decision, regrettably, has set a precedent of allowing the Court to decide the boundaries of inherent Indian sovereignty on a case-by-case basis, thus rendering tribal powers both greatly truncated and largely unknowable prior to litigation.




• Adversarial Ethics: Can Another Self-Interested Lawyer Really Benefit The Common Good?
  By Max Schwartz
  
  

  The legal profession is frequently described as in crisis, with modern authors comparing today's lawyers unfavorably with the upright attorneys of the past. This article seeks to identify the nature and magnitude of this supposed decline. It outlines two frameworks for understanding legal ethics: the contractarian and the civic republican, and uses each model to examine a particularly repugnant legal practice, the Strategic Lawsuit Against Public Participation (SLAPP). Finally, this article examines some potential areas for ethical reform and identifies possible approaches to such reform




• Efficiency In Regulation: An Economic Analysis Of San Remo v. San Francisco
  By Jennifer Xi
  
  

  When does government regulation constitute a taking? How much compensation is “just?” These questions are at the core of regulatory takings cases and no single theory guides court decisions. Previous precedents established a variety of tests and doctrines to determine when regulation constitutes a taking. The author offers an alternative interpretation of the regulatory takings issue through an economic interpretation of San Remo v. City and County of San Francisco. This article provides a brief overview of regulatory takings and a background of the case. It then proceeds with Coasean and Michelman analyses of the costs and benefits to city residents and the class of hotel owners affected by the hotel conversion ordinance. The author concludes that the California Supreme Court's ruling in favor of San Francisco's hotel conversion ordinance was appropriate because it minimized costs to the discrete class of hotel owners while maximizing social benefits to San Francisco residents. In such a manner, the ruling satisfied both the “justness” criteria of the courts and the “efficiency” criteria of economists.



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