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Atoning for Slavery

michael o'donnell

Are Legal Reparations the Answer?

Are courtroom-based reparations for slavery possible? Who, after all, are the plaintiffs? The defendants? Who owes whom a duty? Is there—dread the word—proximate cause? What is the measure of damages? Such questions vexed the legal scholars and practitioners who gathered in March at the Boston College Third World Law Journal’s symposium, “Healing the Wounds of Slavery: Can Present Legal Remedies Cure Past Wrongs?”

Early in the day, panelists introduced a key distinction in reparations litigation, which seeks to fill a gap left by stalled national legislation. Significant moral and legal differences separate reparations cases involving specific instances of past harm—such as the lawsuit recently filed by keynote speaker and Harvard law professor Charles Ogletree on behalf of victims in the notorious Tulsa race riots of 1921—and those that seek broad redress for slavery’s society-wide effects. The former, the symposium participants agreed, are unobjectionable. The latter, however, were attacked by skeptics as impracticable solutions to the problem of slavery’s lasting effects.

Statutes of limitations present an initial obstacle in any reparations litigation. Clever lawyering may avoid the problem in the Tulsa case—the plaintiffs argue that a 2001 state inquiry and report on the riots implicitly restarted the long since tolled limitations by bringing new evidence to light—but it promises to pose difficulties in future cases. Causation will also be difficult to prove in claims lacking Tulsa’s localization of parties, harm, and evidence. Can descendants of whites who benefited from slavery truly be said to have caused, in the legal sense, the social inequities of descendants of blacks who suffered its tribulations? Further, in cases seeking damages for slavery generally, who exactly sues whom? Are the parties whites and blacks, writ large?

Race-neutral Alternatives
Skeptics presented race-neutral measures as alternatives to society-wide redistribution. Keith Hylton, an M.I.T.-trained economist, proposed incentives such as legislation denying corporate beneficiaries of slavery lucrative government contracts until they acknowledge the skeletons in their closets. Boston University law professor and philosopher David Lyons saw across-the-board advances in health care, education, and public transportation— race-neutral issues that disproportionately affect blacks—as more effective means of redress for the African American community than the largely symbolic victories that reparations hope to offer. In his emotional keynote address, Ogletree said it is imperative that the reparations movement overcome whatever legal obstacles it encounters in order to provide an answer for “the voiceless, faceless, powerless Africans” who were thrown overboard on their way to America hundreds of years ago or buried in unmarked graves or killed fighting in the Civil War. Yes, he acknowledged, the legal and technical difficulties of courtroom- based reparations for slavery are formidable but, as the ongoing Tulsa litigation demonstrates, they may not be insurmountable.

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