BOSTON COLLEGE
Boston College Third World Law Journal

Student
Publications

Volume 23 2003 Number 2

[Pages 213-274]
RACIAL AND ETHNIC GROUP DEFAMATION: A SPEECH-FRIENDLY PROPOSAL
Michael J. Polelle*

Abstract:    In AIDA v. Time Warner Entertainment Company, currently before the Illinois Supreme Court, the American Italian Defense Association (AIDA) alleges that the television series “The Sopranos” portrays the criminal and psychopathically depraved character of the Mafia underworld as the dominant motif of Italian and Italian-American culture. The author, drawing upon his experience as co-counsel to AIDA, submits that the law should provide a remedy for racial and ethnic group defamation. It is paradoxical for the law to only allow a remedy for individual defamation. The current civil damage lawsuit for defamation is inapplicable because courts consistently deny damages for group defamation by refusing to recognize the individual harm caused by group defamation. Likewise, criminal defamation statutes are now found in fewer than half the states and rarely used by prosecutors. This Article proposes enacting a declaratory judgment statute at the state level to remedy group racial and ethnic defamation. This suggested remedy takes the form of model legislation in the Appendix to this Article.

[Pages 275-292]
CAN'T STOP THE HUSTLE: THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT'S "ONE STRIKE" EVICTION POLICY FAILS TO GET DRUGS OUT OF AMERICA'S PROJECTS
Jim Moye*

Abstract:  In Department of Housing and Urban Development v. Rucker, the United States Supreme Court upheld the agency’s use of the “one strike” eviction policy, which requires housing authorities to issue leases with the condition that tenants who engage in any drug-related criminal activity are subject to eviction. Moreover, the court held that a tenant’s ignorance of the activity is not a defense to eviction. Although this ruling appears consistent with the Court’s decision in Goldberg v. Kelly, the seminal case delineating the government’s ability to terminate public assistance, the one strike eviction policy nevertheless suffers from several problems that limit its effectiveness. In particular, housing authorities have excessive discretion when implementing the policy; the policy does not define “engaging” in drug-related criminal activity; and the policy fails to prevent non-residents from participating in drug-related criminal activity in the housing community. This Article proposes means of alleviating these problems to increase the effectiveness of the one strike eviction policy.

[Pages 293-330]
BANISHED FOR MINOR CRIMES: THE AGGRAVATED FELONY PROVISION OF THE IMMIGRATION AND NATIONALITY ACT AS A HUMAN RIGHTS VIOLATION
Melissa Cook*

Abstract:  The aggravated felony provision of the U.S. Immigration and Nationality Act was was originally intended to provide for the deportation of non-citizens convicted of very serious crimes. Over the last 15 years, however, the provision has been consistently expanded to include a plethora of minor crimes that are neither aggravated nor felonious. Moreover, Congress has categorically prohibited aggravated felons from applying for discretionary, equitable relief. This Note contends that the sweeping and indiscriminately applied aggravated felony provision violates an individual’s universally recognized right to respect for family and private life. The Note concludes that to comply with international law and treaty obligations, Congress should follow the standards employed by the European Court of Human Rights in deportation cases. Under this approach, a court may overturn a deportation order when the relevant interests of the non-citizen outweigh those of the United States.

[Pages 331-358]
A FERTILE GROUND: THE EXPANSION OF HOLOCAUST DENIAL INTO THE ARAB WORLD
Michelle L. Picheny*

Abstract:  Despite documentation of the atrocities of the Holocaust, there are those who deny its occurrence. Previously, the Holocaust denial movement had been confined to the western world. Western Holocaust deniers, however, faced with opposition and legal restriction by countries such as the United States, Canada, France, and Germany, have expanded their efforts into many Arab nations, such as Egypt, Syria, and the Palestinian Authority. While Holocaust-inspired anti-Semitism is nothing new in these countries, the on-going Arab-Israeli conflict provides a fertile ground for efforts to promulgate Holocaust denial as a new anti-Semitic propaganda tool. Most disturbing is that many Arab governments and political leaders not only support, but even perpetuate Holocaust denial themselves. With no internal remedies in these Arab countries to suppress deniers’ activities, the international community must act to combat Holocaust denial worldwide.

[Pages 359-378]
A FAILURE OF PERSPECTIVE: MORAL ASSUMPTIONS AND GENOCIDE
Naomi Kaplan*

Abstract:  Samantha Power’s book examines the American political tactic of doing nothing in response to the major genocides of the twentieth century. Power argues that American leaders are apathetic in response to genocide because politicians and the general public are suffering from a failure of imagination. Since genocide involves human anguish at an enormous scale, Power’s contention is that human nature would rather turn away from recognizing such horrors. While Power’s argument is persuasive, this Book Review argues that the reasons for apathy in response to genocide stem from a more fundamental failure of moral and legal perspective. This Book Review analyzes the Anglo-American legal structure as an outgrowth of what Carol Gilligan refers to as an “ethic of justice.” Because Anglo-American law is primarily concerned with defining and protecting individual rights, acting out of a sense of responsibility to prevent genocide can seem fraught with legal tension.

[Pages 379-398]
MARRIAGE MAKES CENTS: HOW LAW & ECONOMICS JUSTIFIES SAME-SEX MARRIAGE
Ryan Nishimoto*

Abstract:  Andrew Koppelman’s book presents the legal and moral case for gay equality. He contends that various arguments, such as privacy and sex discrimination, justify the equal treatment of gay men and lesbians. By analogizing the struggle for equality to the debate surrounding same-sex marriage, Koppelman suggests that although change will come, the courts are presently too far ahead of public opinion to recognize same-sex marriage. This Book Review examines how law and economics removes the debate to a pragmatic theater, compelling recognition of same-sex marriage.

[Pages 399-418]
GENOCIDE, THE UNITED NATIONS, AND THE DEATH OF ABSOLUTE RIGHTS
Michael J. O'Donnell*

Abstract:  This Book Review uses Michael Barnett’s argument that the United Nations (UN) refrained from intervening to stop the Rwandan genocide out of considered self-interest as a case-study through which to examine whether absolute rights exist in practice. The UN’s actions in Rwanda represent a staggering failure to protect absolute rights, namely, the Rwandan people’s right to freedom from genocide. The Rwandan case-study demonstrates that absolute rights, which have an impressive pedigree in legal and philosophical scholarship, are nothing more than a theoretical ideal—they are non-existent in practice. Nonetheless, there are hopeful signs, such as the international community’s 1999 intervention in Kosovo, that absolute rights need not be “dead” as a useful concept. In order to maintain relevance as practical, as opposed to normative, ideals, absolute rights must be given greater priority in policymaking, allowing the existing, powerful regime of human rights law to prevent future absolute rights catastrophes.