* ( 2004, David Hall, Professor of Law, Northeastern University School of Law. I would like to thank Rachael Holmes, a 2002 graduate of Northeastern University School of Law, who served as a valuable research assistant on this project. She did a wonderful and competent job in a very short period of time. I would also like to thank Angela S. Tripp, a 2003 graduate of Northeastern University School of Law, and Donovan McDonald for their research contributions to this Article.
1 “1) The act of making amends for a wrong. 2) Compensation for an injury or wrong, especially for wartime damages or breach of an international obligation.” Black’s Law Dictionary 1301 (7th ed. 1999).
2 “Iure naturae aequum est neminem cum alterius detrimento et iniuria fieri locupletiorem.” [By the law of nature it is fair that no one become richer by the loss and injury of another.] Dig. 50.17.206 (Pomponius, Various Readings, Book 9); see also Foundations of Contract 112 (R. Craswell & A. Schwartz eds., 1994). “The elements that must be established to prove unjust enrichment are: 1) an enrichment; 2) an impoverishment; 3) a connection between the enrichment and the impoverishment; 4) the absence of a justification for the enrichment and impoverishment; and 5) the absence of a remedy provided by law.” 66 Am. Jur. 2d Restitution and Implied Contracts § 12 (2001).
3 E. Allan Farnsworth, Contracts § 12.1, at 759 (3d ed. 1999). The other two remedies protect a party’s “expectation” and “reliance” interests. Id. § 12.1, at 756–59. An “expectation” remedy aims to put the injured party in as good a position as she would have been in had the contract been fully performed; it is meant to give the injured party the “benefit of the bargain.” Id. § 12.1, at 756–58. A “reliance” remedy awards damages to an injured party who changed her position in reliance on a contract by incurring expenses in preparation and/or performance, thus putting her back in the position she would have been in had the contract not been made. Id. § 12.1, at 758. For example, consider a contract to restore a rare old guitar for $500. If it would have cost the restorer $350 in materials and labor to repair and restore the instrument, and the owner repudiates the contract before the restorer has done anything in reliance on it, the restorer’s only loss is the $150 profit. This is the restorer’s expectation interest. If, however, the owner does not repudiate until the restorer has already spent $300 on materials and labor, then the restorer’s reliance interest is $300, the amount she has spent in past performance. See id. § 12.1, at 756–59.
4 See generally The Spiritual Roots of Restorative Justice (Michael L. Hadley, ed., 2001) (collecting multi-faith essays that discuss restorative justice, including restitution, within the context of major spiritual traditions).
5 The aim in restitution is to put the party breaching the contract in the position he would have occupied had the contract never been made by “returning the benefit to the injured party that conferred it.” Farnsworth, supra note 3, § 12.1, at 759. If, for example, a builder and a farmer contract to build two barns, but just as the builder finishes one barn, the farmer reneges on the contract and refuses to pay, the builder is entitled to restitution. His restitution damages will be the amount by which the farmer has been unjustly enriched, or the increase in the value to his property that the newly-built barn has conferred. Id. § 12.1, at 760.
In the human rights context, many oppressed groups have been granted restitution over the last century for wrongs done them. For example, both the American-Japanese Evacuation Claims Act of 1948, 50 U.S.C. app. §§ 1981–1987 (2000), and the Civil Liberties Act of 1988, 50 U.S.C. app. § 1989 (2000), sought to make restitution to Japanese Americans who were unjustly interned during World War II. The German Foundation Law was passed in 2000 to provide reparations to Jewish laborers enslaved by the Third Reich. Libby Adler & Peer Zumbansen, The Forgetfulness of Noblesse: A Critique of the German Foundation Law Compensating Slave and Forced Laborers of the Third Reich, 39 Harv. J. on Legis. 1, 1–2 (2002). In 1994, Florida passed a “claim bill” (a bill seeking compensation for persons injured by an act or omission of the state or its officials when there is no other available remedy) that provided some redress to former residents of Rosewood and their descendents for the massacre its citizens suffered at the hands of White mobs who rioted over several days in 1923. Act of May 4, 1994, 1994 Fla. Sess. Law Serv. ch. 94-359 (West) (relating to Rosewood, Florida); C. Jeanne Bassett, House Bill 591: Florida Compensates Rosewood Victims and Their Families for a Seventy-One-Year-Old Injury, 22 Fla. St. U. L. Rev. 503, 503, 504, 506–07 (1994).
6 See, e.g., Plaintiff’s Complaint and Jury Trial Demand, Farmer-Paellman v. FleetBoston Fin. Corp. (E.D.N.Y. filed Mar. 26, 2002) (No. 02–CV–1862); Plaintiffs’ First Amended Complaint, Alexander v. Governor of Oklahoma (N.D. Okla. filed Feb. 28, 2003) (No. 03–CV–133).
7 Professor Alfred Brophy, University of Alabama Law School; Professor Keith Hylton, Boston University School of Law; Professor David Lyons, Boston University; Professor Calvin Massey, University of California, Hastings College of the Law; Professor Eric Miller, Western New England College School of Law; Professor Charles Ogletree, Harvard Law School; and Dean Alfreda Robinson, George Washington University Law School.
8 See W. Tecumseh Sherman, Special Field Order No. 15: “Forty Acres and a Mule,” reprinted in When Sorry Isn’t Enough: The Controversy over Apologies and Reparations for Human Injustice 365, 365-66 (Roy L. Brooks ed., 1999). General Sherman’s Special Field Order No. 15, issued on January 16, 1865, was codified in Section 4 of the Freedmen’s Bureau Act of 1865, in April of 1865. Freedmen’s Bureau Act of 1865, ch. 90, § 4, 13 Stat. 507, 508.
9 Eric Foner, Reconstruction: America’s Unfinished Revolution 1863–1877, at 159, 190–91 (1988). Not surprisingly, Sherman’s land grants threatened the new peace among the states. See id. In the summer and fall of 1865, southern states’ opposition to Reconstruction was increasingly difficult for the new President, Andrew Johnson, to ignore. See id. He succumbed to pressure and ordered that the land be returned to its pre-Civil War White owners, forcing Black families to leave their homesteads immediately. See id.
10 See H.R. 29, 40th Cong. (1st Sess. 1867).
11 While Reconstruction immediately following the Civil War had allowed African Americans to participate in the nation’s political system for the first time, the gains were short-lived. Attempts by black people in the south to vote, run for office, and exercise other civil and economic rights were met with increasing violence by whites. A year and a half after the last troops were withdrawn from duty, President Hayes himself commented that “by state legislation, by frauds, by intimidation, and by violence of the most atrocious character, colored citizens have been deprived of the right of suffrage . . . and to the protection to which the people of those States have been solemnly pledged.” Vincent P. DeSantis, Rutherford B. Hayes and the Removal of the Troops and the End of Reconstruction, in Region, Race, and Reconstruction 417, 436 (J. Morgan Kousser & James M. McPherson eds., 1982) (quoting President Hayes’s diary entry of Nov. 12, 1878) (alteration in original).
12 In deciding the Civil Rights Cases, 109 U.S. 3 (1883), which arose under the provisions of the Civil Rights Act of 1875, the Supreme Court held that the Thirteenth and Fourteenth Amendments did not, after all, grant Congress the power to “create a code of municipal law for the regulation of private rights” leaving the redress of such wrongs to the states. Id. at 4, 11. According to the Court, full and equal access to public accommodations was not, in fact, implied by the goals of the Thirteenth and Fourteenth Amendments (i.e., the elimination of the badges and incidents of slavery). Id. at 25. This decision assured the southern states that the federal government would not, as threatened, protect African Americans’ civil rights. See id. at 11. Similarly, in United States v. Cruikshank, 92 U.S. 542 (1876), the Court held that the states, and not the federal government, had the duty to prevent private interference with African Americans’ civil rights. Id. at 553–54. United States v. Harris, 106 U.S. 629 (1883), involved the killing of a prisoner in local custody and the severe beating of several others by a mob of twenty men. Id. at 629–32. There, the Court held that Congress did not have the power to punish a private citizen for invading the rights of a fellow citizen under the Civil Right Acts—there had to be official state action. Id. at 644. In Plessy v. Ferguson, 163 U.S. 537 (1896), the Court upheld as constitutional a statute providing for segregated train cars, which imposed criminal fines on violators, stating that separate cars did not violate the Thirteenth and Fourteenth Amendments’ prohibition of unequal protection of laws. Id. at 537–38, 552.
13 347 U.S. 483 (1954).
14 Id. at 495; see also Brown v. Bd. of Educ., 349 U.S. 294, 301 (1955).
15 In the years that followed the Brown decisions, the Supreme Court ordered the end of state-sponsored discrimination in a variety of contexts. See, e.g., Gayle v. Browder, 352 U.S. 903 (1956); Owen v. Browder, 352 U.S. 903 (1956) (segregated seating system on public buses in Montgomery, Alabama); Baltimore City v. Dawson, 350 U.S. 877 (1955) (public beaches and bathhouses); Holmes v. City of Atlanta, 350 U.S. 879 (1955) (city park and golf course); Florida ex rel. Hawkins v Bd. of Control, 347 U.S. 971 (1954) (tax-supported law school); Muir v. Louisville Park Theatrical Assoc., 347 U.S. 971 (1954) (privately-operated enterprise using a public amphitheater in Iroquois Park).
16 For instance, in 1963, during the 100th anniversary of the Emancipation Proclamation, Audley “Queen Mother” Moore formed the Reparations Committee of Descendants of United States Slaves. She canvassed the country and gathered over a million signatures to petition the U.S. government for payment of reparation to African Americans, and then presented the petition to President John F. Kennedy. Queen Mother Witnessed Much History, The African American Registry ¶ 4, at http://www.aaregistry.com/african_american_ history/1022/Queen_Mother (last visited Nov. 9, 2003); see also Conrad W. Worrill, The National Black United Front and the Reparations Movement, in Should America Pay? 203, 203 (Raymond W. Winbush ed., 2003). Congressman John Conyers (D-MI) has introduced legislation titled “Commission to Study Reparation Proposals for African Americans Act” at every Congressional session since 1989, without success. See, e.g., H.R. 40, 108th Cong. (2003); H.R. 3745, 101st Cong. (1989); see also Charles J. Ogletree, Jr, Repairing the Past: New Efforts in the Reparations Debate in America, 38 Harv. C.R.-C.L. L. Rev. 279, 290 (2003) (discussing Representative Conyers’ efforts over the last fourteen years to pass this bill). There have also been numerous individual claims brought by African Americans seeking reparation for the incidents of enslavement. See, e.g., Himiya v. United States, No. 94–C–4065, 1994 WL 376850, at *1 (N.D. Ill. July 15, 1994) (suing the United States for “aiding, abetting and condoning the institution of slavery,” and alleging that the “institution of slavery caused African Americans to lose their language, religion, culture and history.”); see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (seeking $100,000,000 for, among other things, “kidnapping of ancestors from Africa; forced labor; breakup of families; removal of traditional values; [and] deprivations of freedom”).
17 Florida House Bill 591, passed in 1994, brought long-awaited though modest redress for a vicious massacre that occurred in Rosewood, Florida, a small community of about twenty families. Act of May 4, 1994, 1994 Fla. Sess. Law Serv. ch. 94–359 (West) (relating to Rosewood, Florida); Bassett, supra note 5, at 506, 520. The massacre was sparked in 1923, when a White woman from a neighboring town claimed she had been attacked by an unidentified Black man. Bassett, supra note 5, at 506. Many Black citizens of Rosewood were murdered at the hands of White mobs in the days that followed, and the town was burned to the ground. Id. at 506–07. A grand jury convened afterward to investigate the massacre returned no indictments. Id. at 507. In 1995, each of the five remaining survivors of the Rosewood massacre was awarded $150,000, and fewer than 70 Rosewood residents received between $104 and $5000 for the loss of property. Michael D’Orso, Like Judgement Day 297, 300, 318 (1996).
18 In 1997, the Oklahoma State Legislature passed Joint House Resolution No. 1035, which created the Oklahoma Commission to Study the Tulsa Race Riot of 1921, a violent riot that occurred in Tulsa’s Greenwood district, then known as the “Black Wall Street of America.” Tulsa Race Riot: A Report by the Oklahoma Commission to Study the Tulsa Race Riot of 1921, at iii, xiii (Feb. 28, 2001) [hereinafter Tulsa Race Riot], available at http://www.ok-history.mus.ok.us/trrc/freport.htm (last visited Oct. 24, 2003). As described by the Commission’s report, the riot began after a Black teenager named Dick Rowland was accused of assaulting a White female elevator operator. Scott Ellsworth, The Tulsa Race Riot, in Tulsa Race Riot, supra, at 37, 57. In response to threats to lynch the young man that were published in a local newspaper, Black residents gathered outside the county courthouse. Id. at 58–61. A fight erupted between a group of Whites and Mr. Rowland’s protectors that sparked an all-night bloodbath. Id. at 63. By the time the National Guard imposed order, 300 people had been killed and more than 1,000 homes and numerous businesses in the Greenwood district had been destroyed. John Hope Franklin & Scott Ellsworth, History Knows No Fences: An Overview, in Tulsa Race Riot, supra, at 21, 22–23. The Riot Commission recommended payments of at least $20,000 each to the few remaining survivors of the Tulsa riot or their descendents. Alfred L. Brophy, Reconstructing the Dreamland: Contemplating Civil Rights Actions and Reparations for the Tulsa Race Riot of 1921 62 (2000) (Preliminary draft of report to Tulsa Race Riot Commission) (unpublished, available online at http://www.law.ua.edu/staff/bio/ abrophy/abrophy_links.html (last visited Oct. 24, 2003)).
19 Professor Bell writes:
Even so, it becomes clear that, short of a revolution, the likelihood that blacks today will obtain direct payment in compensation for their subjugation as slaves before the Emancipation Proclamation, and their exploitation as quasi-citizens since, is no better than it was in 1866, when Thaddeus Stevens recognized that his bright hope of “Forty Acres and a Mule” for every freedman had vanished . . . .
Derrick Bell, Race, Racism and American Law 46 (2d ed. 1980).
20 See, e.g., Elementary and Secondary Education Act of 1965, Pub. L. 89–10, 79 Stat. 27 (codified in scattered sections of 20 U.S.C.) (authorizing cutoffs of federal aid to schools practicing de jure segregation); Voting Rights Act of 1965, Pub. L. 89–110, 79 Stat. 437 (1965) (codified as amended at 42 U.S.C. §§ 1973–1973bb-1 (2000)) (barring discrimination in all voting matters); Civil Rights Act of 1964, Pub. L. 88–352, §§ 401–410, 78 Stat. 241, 246–249 (codified as amended at 42 U.S.C. § 2000c (2000)) (barring discrimination in public accommodations and public schools); Fair Housing Act, Pub. L. 90–284, §§ 801–901, 82 Stat. 73, 81–90 (1968) (codified as amended at 42 U.S.C. §§ 3601–3619 (2000)) (barring discrimination in the sale, rental, financing and advertising of housing).
21 See generally Andrew Hacker, Two Nations: Black and White, Separate, Hostile, Unequal (1992) (discussing the role that race plays in American society).
22 See, e.g., Richard J. Hernstein & Charles Murray, The Bell Curve: Intelligence and Class Structure in American Life (1994). The authors of this work analyzed questionable intelligence research that they claim substantiates their theory that African Americans are genetically inferior to Whites in intellectual ability. See id. at 269–315.
23 According to the Centers for Disease Control and Prevention’s National Vital Statistics Report’s (NVSR) preliminary data for 2001, the average African-American infant mortality rate was approximately 14.2 infant deaths per 1,000 live births. Elizabeth Arias & Betty L. Smith, Deaths: Preliminary Data for 2001, Nat’l Vital Stat. Rep., Mar. 14, 2003, at 28 (2003), available at http://www.cdc.gov/nchs (last visited Oct. 24, 2003). The rate for White children was less than half the Black rate—only 5.7 infant deaths per 1,000 live births. Id. NVSR’s 2001 data also indicated a significant disparity in the life expectancies of Blacks and Whites: at birth, Whites had an average life expectancy of 77.7 years, while Blacks’ average life expectancy was just 72.2 years. Id. at 25. The Bureau of Justice Prison Statistics reports that at year end 2002 there were 3,437 sentenced Black male prisoners per 100,000 Black males in the United States, compared to only 450 White male prisoners per 100,000 White males. See Bureau of Justice, Prison Statistics, at http://www.ojp.usdoj. gov/bjs/prisons.htm (last visited Oct. 24, 2003).
24 A National Center for Education Statistics study looking at Black-White differences in educational achievement reported that “black-white gaps in mathematics and reading achievement appeared at every grade studied [grade 1–12].” Jonathan Jacobson et al., Nat’l Ctr. for Educ. Statistics, Educational Achievement and Black-White Inequality, at xi (2001), available at http://nces.ed.gov/pubs2001/inequality/6.asp (last visited Oct. 24, 2003). The measure of achievement was based on the mathematics and reading portions of the National Assessment of Educational Progress test. Id. at 6. According to a 2000 study by the Federal Interagency Forum on Child and Family Statistics, only 84% of Black, non-Hispanic youth completed high school, compared with 92% of White, non-Hispanic youth. Fed. Interagency Forum on Child and Family Statistics, America’s Children: Key National Indicators of Well-Being, 2002, at 53 (2002), available at http://www.childstats.gov (last visited Oct. 24, 2003).
25 For example:
It is hardly to be believed that God, who is a wise Being, should place a soul, especially a good soul, in such a black ugly body . . . . It is impossible for us to suppose these creatures to be men, because, allowing them to be men, a suspicion would follow that we ourselves are not Christians.
1 Baron De Montesquieu, The Spirit of Laws 238–39 (Thomas Nugent trans., rev. ed. 1899).
26 “Moreover, the civil rights establishment has a vested interest in the persistence of the underclass, because the scandalous pathologies of poor blacks create the public sympathy that legitimizes continuing subsidies to the black middle class.” Dinesh D’Souza, The End of Racism 23 (1995).
27 Bell, supra note 19, at 29–30. Examples of involuntary sacrifice include: repeal of Sherman’s land grants to make peace with southern states, and Hayes-Tilden compromise effectively granting the South “home rule” with regard to Blacks. See id. at 29–30, 203 (connecting the decision in the Civil Rights Cases with that compromise).
28 Genesis 22:2 (New International) (“Then God said, ‘Take your son, your only son, Isaac, whom you love, and go to the region of Moriah. Sacrifice him there as a burnt offering on one of the mountains I will tell you about.”).
29 E.g., Leviticus 5:1–6:7 (New International). For the sin of misappropriation of something that is sacred to God, a person must offer an unblemished ram of a certain value as a guilt-offering in order to be forgiven. Id. at 5:15. If a person is dishonest, he must return what he has stolen or falsely kept, make restitution of the principal, and then add one-fifth to it. On the day that he seeks atonement for his crime, he must give it to its rightful owner, and also offer a guilt-offering to the priest. Id. at 6:2–6:7.
30 Hebrews 10:10 (New International) (“And by that will, we have been made holy through the sacrifice of the body of Jesus Christ once for all.”).
31 See The Civil Rights Cases, 109 U.S. 3, 21 (1883) (“Congress has a right to enact all necessary and proper laws for the obliteration and prevention of slavery with all its badges and incidents . . . .”).
32 Jeremiah 8:22 (New International)(“Is there no balm in Gilead? Is there no physician there? Why then is there no healing for the wound of my people?”).
33 See, e.g., Keith N. Hylton, A Framework for Reparations Claims, 24 B.C. Third World L.J. 31 (2004); Calvin Massey, Some Thoughts on the Law and Politics of Reparations for Slavery, 24 B.C. Third World L.J. 157 (2004).
34 Martin Luther King, Jr., Our God Is Marching On, Address at the March on Montgomery (Mar. 25, 1965), reprinted in A Call to Conscience 119–32 (Clayborne Carson ed., 2001), available at http://www.stanford.edu/group/King/publications/speeches/ Our_God_is_marching_on.html (last visited Nov. 9, 2003).