Twlj. Volume 26, Number 2

BOSTON COLLEGE THIRD WORLD LAW JOURNAL Volume XXVI Spring 2006 Number 2 ARTICLE AVOIDING ANOTHER STEP IN A SERIES OF UNFORTUNATE LEGAL EVENTS: A CONSIDERATION OF BLACK LIFE UNDER AMERICAN LAW FROM 1619 TO 1972 AND A CHALLENGE TO PREVAILING NOTIONS OF LEGALLY BASED REPARATIONS Carlton Waterhouse [pages 207–266] Abstract: The growing body of literature on reparations consists primarily of articles showing that black reparations are consistent with various legal theories, promote racial justice, or further broader societal goals like eliminating poverty and promoting education. This article takes the dis- tinct position of challenging reparations supporters to justify their conªdence in the legal system to deliver meaningful reparations for slav- ery and segregation in light of the historic use of law as a means of instan- tiating white racial supremacy and the prospective individualistic approach to race adopted by contemporary judges and legislators. The article also challenges those who oppose reparations based on its sup- posed unfairness to contemporary citizens to explain how their position differs from that of past generations who opposed reparations and related legal efforts to redress racial injustices as unfair at that time. To support the challenge to reparations commentators, the article examines the his- torical framework of blacks’ relationship to the law through legislation and court rulings from 1619–1963. The article closes by presenting an al- ternative approach to reparations focused on building and strengthening black political, economic, and educational institutions. NOTES FREE SPEECH TO HAVE SWEATSHOPS? HOW KASKY V. NIKE MIGHT PROVIDE A USEFUL TOOL TO IMPROVE SWEATSHOP CONDITIONS Julia Fisher [pages 267–310] Abstract: In 1998, consumer activist Marc Kasky sued Nike, claiming that Nike’s statements in the media denying sweatshop conditions in its facto- ries were false advertising. This case, culminating in a controversial Cali- fornia Supreme Court decision, has attracted much criticism on its impli- cations of free speech. Little attention has been paid to how Nike v. Kasky might be a useful tool for anti-sweatshop advocates, who have up until now had great difªculty holding companies accountable for their sweatshop labor conditions. This Note examines the anti-sweatshop movement and its lack of effective private enforcement techniques. It then explores how the California Supreme Court in Kasky expanded the commercial speech doctrine. Lastly, it analyzes how Kasky might be used by anti- sweatshop advocates against corporations with sweatshop conditions. This Note concludes that Kasky is an imperfect tool but one that, when used in moderation, would not have a strong chilling effect on corporate speech. COUNTRY CLUB DISCRIMINATION AFTER COMMONWEALTH V. PENDENNIS Alison Lasseter [pages 311–350] Abstract: In American country clubs, there is a long tradition of discrimination against racial minorities and women. These clubs maintain that they are private and thus able to operate free from government sanction. In 2004, the Supreme Court of Kentucky ruled that the state’s Commission on Human Rights had the statutory authority to investigate private country clubs to determine if they discriminate in their mem- bership practices. In Kentucky, if a club is found to discriminate, its members are disallowed certain tax deductions. While this is a step in the right direction to end discriminatory practices at country clubs, the Supreme Court of Kentucky still points out that private clubs have the right to discriminate without fear of legal liability. This Note evaluates other states’ reactions and statutes regarding discrimination at private clubs and contends that such approaches are more effective in eradicat- ing discrimination in these clubs than tax consequences. BOOK REVIEWS WHY HARMFUL TAX PRACTICES WILL CONTINUE AFTER DEVELOPING NATIONS PAY: A CRITIQUE OF THE OECD’S INITIATIVES AGAINST HARMFUL TAX COMPETITION Richard A. Johnson [pages 351–376] OFFSHORE: THE DARK SIDE OF THE GLOBAL ECONOMY. By William Brittain-Catlin. New York: Farrar, Straus, and Giroux 2005. Abstract: Offshore tax havens have recently become the target of international criticism and reform efforts due to their role in eroding foreign tax bases through competitive tax practices. William Brittain- Catlin’s book, Offshore: The Dark Side of the Global Economy, dis- cusses how offshore tax laws have been exploited and explains measures taken by international groups, such as the Organisation for Economic Co-operation and Development (OECD), to counteract harmful tax competition. This Book Review critiques the efforts of the OECD to mitigate offshore tax havens’ contribution to harmful tax competition by expanding on two of Brittain-Catlin’s conclusions. In doing so, the Book Review will demonstrate that the OECD’s actions have not only caused severe economic harm to numerous developing nation econo- mies, but they have failed to elicit sufªcient support to successfully curb harmful tax competition. ELIMINATING CHILD MARRIAGE IN INDIA: A BACKDOOR APPROACH TO ALLEVIATING HUMAN RIGHTS VIOLATIONS Jacqueline Mercier [pages 377–396] CHILD MARRIAGE IN INDIA: SOCIO-LEGAL AND HUMAN RIGHTS DIMENSIONS. By Jaya Sagade. New York: Oxford 2005. Abstract: Despite its illegality, child marriage occurs throughout the In- dian landscape. In her book, Child Marriage in India: Socio-legal and Human Rights Dimensions, Jaya Sagade examines the prevalence of child marriage among India’s various cultures and its impact on the human rights of young women. Sagade asserts that, notwithstanding minimal legislative efforts, the Indian government has not met the obligations set forth in the international human rights conventions that the country has ratiªed. Sa- gade asserts that the Indian government must not only work diligently to change the nation’s views on child marriage, but must also legislate more cohesively to prohibit the practice. This Book Review takes Sagade’s human-rights-based proposals a step further and suggests that, in a country reluctant to release longstanding traditions, addressing the Indian tax system and dowry laws will provide a more practical, ªnancial incentive for eliminating the practice of child marriage. FEDERAL TRADE ADJUSTMENT ASSISTANCE FOR WORKERS: BROKEN EQUIPMENT Jessica Schauer [pages 397–414] THE WORLD IS FLAT: A BRIEF HISTORY OF THE TWENTY-FIRST CENTURY. By Thomas Friedman. New York: Farrar, Straus and Giroux, 2005. Abstract: In The World Is Flat, Thomas Friedman argues that the conver- gence of various events and technologies over the past few decades have created a greater interconnectedness among individuals across the globe. One of the hallmarks of this latest wave of globalization has been the outsourcing of American jobs to foreign countries such as India. Fried- man suggests that, in light of this trend, a comprehensive plan is needed to help Americans prepare for competition in the global economy. This Book Review analyzes whether the Federal Trade Adjustment Assistance program (TAA), part of the Trade Act of 1974, is a viable means for providing job training and assistance to Americans who have lost jobs due to offshore outsourcing. It concludes that the TAA program is largely ineffective and suggests various modiªcations. SWEATY SUBURBS: CAN STATES AND WORKER CENTERS WASH THEM CLEAN? Kate S. Woodall [pages 415–439] SUBURBAN SWEATSHOPS: THE FIGHT FOR IMMIGRANT RIGHTS. By Jennifer Gordon. Cambridge, MA: Belknap Press of Harvard Univer- sity Press 2005. Abstract: In Suburban Sweatshops, Jennifer Gordon paints a bleak pic- ture of the current state of undocumented workers’ rights in suburban America’s service industry. As immigration law is increasingly interpreted to limit the rights of undocumented workers, undocumented immigrants are having a harder time organizing to demand workplace rights. In the face of this increasing exploitation, however, Gordon ªnds hope in alter- natives to the traditional union structure. She focuses on the efforts of the Workplace Project, a Long Island worker center, to advocate for immigrant workers through participation in the political process and geographic organization. This Book Review examines the legal framework in which suburban sweatshops thrive and explores the effectiveness of alter- native organizing groups, such as the Workplace Project, in effecting change for undocumented workers. Through the political process and geographic organization, worker centers around the nation have met with limited success in combating the abuse of undocumented immigrant workers. AVOIDING ANOTHER STEP IN A SERIES OF UNFORTUNATE LEGAL EVENTS: A CONSIDERATION OF BLACK LIFE UNDER AMERICAN LAW FROM 1619 TO 1972 AND A CHALLENGE TO PREVAILING NOTIONS OF LEGALLY BASED REPARATIONS Carlton Waterhouse* Abstract: The growing body of literature on reparations consists primarily of articles showing that black reparations are consistent with various legal theories, promote racial justice, or further broader societal goals like eliminating poverty and promoting education. This article takes the dis- tinct position of challenging reparations supporters to justify their conªdence in the legal system to deliver meaningful reparations for slav- ery and segregation in light of the historic use of law as a means of instan- tiating white racial supremacy and the prospective individualistic approach to race adopted by contemporary judges and legislators. The article also challenges those who oppose

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