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Dartmouth Law Journal



Volume 4, Issue 3, Fall 2006



Published: Wed, 14 Feb 2007 21:49:37 EST

 



Introduction: Two Perspectives on the Expressive Dimension of Equal Protection - by the Dartmouth Law Journal

Wed, 14 Feb 2007 21:49:37 EST

Volume 4, Issue 3, Fall 2006
Profile: Professor Deborah Hellman '85



Discrimination: When is it morally wrong and why?

Wed, 14 Feb 2007 21:49:37 EST

Volume 4, Issue 3, Fall 2006
In this article, Professor Deborah Hellman examines a framework by which to determine which cases of discrimination should be considered morally wrong, and which cases should be considered morally permissible.



A Critique of the Expressive Dimension of Equal Protection Rationale

Wed, 14 Feb 2007 21:49:37 EST

Volume 4, Issue 3, Fall 2006
In this article, we discuss and critique Professor Deborah Hellman's use of "expressive meaning" to determine the constitutionality of Equal Protection claims. While judges ought to consider the expressive meaning of a law in reaching decisions, we argue that this vague concept is untenable as a guiding adjudicatory principle. Instead, policies should be evaluated in light of their effects, with expressive content used as an indicator of whether these effects are benign or invidious.



The Expressive Meaning approach in Theory and Practice

Wed, 14 Feb 2007 21:49:37 EST

Volume 4, Issue 3, Fall 2006
In this article we offer a discussion of the interrelatedness of Deborah Hellman's approach in her expressive meaning model to understanding Equal Protection jurisprudence and John Rawl's distributional justice model in his Theory of Justice. We present a few potential shortcomings of Hellman's model, stemming from potential controversies in which the effects and expressive meaning differ in their level of acceptability. We believe that these examples present sources of weakness that scholars must reconcile for this theory to become stronger. In the end, we apply Hellman's theory to affirmative action in an attempt to reconcile some of these problems.



Questioning the Image: The Constitutionality of Child Pornography

Wed, 14 Feb 2007 21:49:37 EST

Volume 4, Issue 3, Fall 2006
In Ashcroft v. The Free Speech Coalition (2002) the Supreme Court struck down portions of the Child Pornography Prevention Act of 1996 (CPPA) which targeted computer-generated images of minors engaged in sexual conduct and materials marketed for their portrayal of underage sexuality. Writing for the majority, Justice Anthony M. Kennedy argued the sections in question would criminalize canonized works of art and chill constitutionally protected adult expression. Stating the petitioner's posture "turn[ed] the First Amendment upside down," he held "the Government [cannot] prohibit speech because of its tendency to persuade viewers to commit illegal acts" nor "suppress lawful speech as the means to suppress unlawful speech." This Article argues the Ashcroft decision was correct. Adopting the perspective of a visual and literary scholar, I examine the historical relationship between law and aesthetics, illustrating how a different outcome could have easily precipitated the consequences Kennedy envisioned. Nevertheless, the decision simultaneously highlighted and failed to address larger problems in the Court's jurisprudence. In particular, the reasoning undergirding Kennedy's thought-action distinction exposed conflicts with precedents governing the legality of child pornography and implied that merely looking at obscene or sexually explicit images of minors should not be considered a criminal offense. While at first blush it may appear unpalatable, this Article ultimately concludes that like photographs of murder, rape or other heinous crimes, viewing images and ex post facto records of sexual interactions involving minors should fall under the First Amendment's umbrella protection of freedom of speech and thought. Instead, the actions which give rise to creation, circulation, and sale of child pornography must be prosecuted. Defining "the obscene" or engaging in supply side constitutionalism force the state to evaluate aesthetic discourse, an act that undermines the diversity of opinion the First Amendment was designed to foster and protect. Ultimately, no matter how repugnant we may find the fantasies and desires of others, the foundation of our free society rests on the recognition that they are beyond the purview of the government.



Respecting the Constitution Abroad: A Case for the Extraterritorial Application of the Eighth Amendment

Wed, 14 Feb 2007 21:49:37 EST

Volume 4, Issue 3, Fall 2006
The U.S. Constitution establishes numerous individual rights and limits to governmental conduct. Can the Constitution extend its reach beyond American borders? This Article focuses on the Eighth Amendment and analyzes constitutional jurisprudence, the history and text of the Eighth Amendment, and a recent Congressional enactment in light of the circumstances surrounding Abu Ghraib and secret Central Intelligence Agency facilities. This Article concludes that the Eighth Amendment's prohibitions protect aliens detained abroad from U.S. officials' torturous interrogation. Therefore, officials who torture detainees in these facilities do so unconstitutionally.



Dehumanization and Re-Creation: A Lacanian Interpretation of the Federal Sentencing Guidelines

Wed, 14 Feb 2007 21:49:37 EST

Volume 4, Issue 3, Fall 2006
This article examines the Federal Sentencing Guidelines using the theories of French psychoanalyst Jacques Lacan. It discusses specifically Lacan's theories on the creation of the "Other" through neglect, censorship, error, and speech/language, and argues that the Guidelines create the offender as "Criminal" and therefore dehumanize him. The article also argues that although the Guidelines are now merely advisory, they reflect the past, present, and future of American sentencing. The article also discusses the legislative and jurisprudential history of the Guidelines, from the Sentencing Reform Act in 1984, to the Booker decision in 2005, which made the Guidelines advisory.