* Professor of Law and Paul J. Liacos Scholar in Law, Boston University School of Law; Boston, MA, 02215; knhylton@bu.edu. This paper was prepared for a conference on reparations at Boston College Law School, Mar. 14, 2003.
1 See generally Complaint & Jury Trial Demand, Farmer-Paellmann v. FleetBoston Fin. Corp. (E.D.N.Y. 2002) (No. 02–CV–1862).
2 See Lyle Denniston, Lawyers Hope Tulsa Case Can Lay Foundation for More Claims, Boston Globe, Feb. 26, 2003, at A16.
3 See id. (describing Professor Charles Ogletree’s leadership of team that drafted complaint seeking compensation in Tulsa case); Tatsha Robertson, Quest for Vindication: Survivors of 1921 Tulsa Race Riots Hail Suit for Reparations, Boston Globe, Feb. 26, 2003, at A1. See generally Alfred L. Brophy, Reconstructing the Dreamland: The Tulsa Riot of 1921 (2002) (providing full historical treatment).
4 This view of reparations claims brings them within the class of recent criminal trials of former Klansman for murders committed in the 1960s. See Rick Bragg, Former Klansman Is Found Guilty of 1966 Killing, N.Y. Times, Mar. 1, 2003, at A12 (reporting case of Ernest Avants, a former Klansman found guilty by a jury, after only three hours of deliberation, for the murder of Ben Chester White); Guilty Verdict in Church Bombing Trial, Online NewsHour, at http://www.pbs.org/newshour/engenda_preview/updates/birmingham_05–02–22.html (May 22, 2002) (describing conviction of former Klansman Bobby Frank Cherry for murder of four girls in 1963 bombing of Sixteenth Street Baptist Church).
5 Starting in the 1930s, 399 syphilitic men signed up for free medical care from the U.S. Public Health Service. They were never told that they had syphilis, only that they had “bad blood.” See Sour Legacy of Tuskegee Syphilis Experiment Lingers, CNN Interactive, at http:/ /www.cnn.com/HEALTH/9705/16/nfm.tuskegee/ (May 16, 1997).
6 50 U.S.C. app.  1989 (2000).
7 Complaint & Jury Trial Demand at 1, Farmer-Paellmann (No. 02–CV–1862).
8 See id.
9 See generally David M. Cutler et al., How Good a Deal Was the Tobacco Settlement? Assessing Payments to Massachusetts (Nat’l Bureau of Econ. Research, Working Paper No. 7747, 2000) (assessing payments to Massachusetts in tobacco settlement of 1998), available at http://papers.ssrn.com/paper.taf?abstract_id=233750.
10 U.S. Census Bureau, Historical Poverty Tables (1999), at http://www.census. gov/hhes/poverty/histprov/histpov4.html (last visited Oct. 9, 2003).
11 Admittedly, the Civil Rights and Great Society legislation began during the mid-1960s, but it is unlikely that they had much of an impact on relative wealth levels by 1969. Thus, the 1969–1989 period covered by the Census data probably provides a reliable measure of the effects of redistributional policies.
12 This is the ratio of the number of married-couple white families in the 1999 Census sample, 48,794, to the number of white families in the sample, 60,256. U.S. Census Bureau, supra note 10.
13 This is the ratio of the number of married-couple black families in the 1999 Census sample, 4,144, to the number of black families in the sample, 8,664. See id.
14 I found this by using the relationship 7.3 = (1-.82)x + (.82)4.4, where x is the poverty rate among non-married white families in 1999.
15 I found this by using the relationship 21.9 = (1-.48)y + (.48)7.1, where y is the poverty rate among non-married black families in 1999.
16 If poor blacks had the same marriage rate as poor whites in 1999, the overall poverty rate would be given by (1-.82)36 + (.82)7.1 = 12.3.
17 See Marc Galanter, Righting Old Wrongs, in Breaking the Cycles of Hatred 107, 112–16 (Marth Minow ed. 2002) (discussing the problem of identification); Alfred L. Brophy, Some Conceptual and Legal Problems in Reparations for Slavery, 58 N.Y.U. Ann. Surv. Am. L. 497, 503–05 (2003) (same); Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323, 374–80 (1987) (same).
18 See Polius v. Clark Equip. Co., 802 F.2d 75, 83 (3d Cir. 1986) (“The imposition of successor liability on a purchasing company long after the transfer of assets defeats the legitimate expectations the parties held during negotiations and sale.”).
19 See Philadelphia Elec. Co. v. Hercules, Inc., 762 F.2d 303, 308–09 (3d Cir. 1985) (recognizing exceptions to the general rule of nonliability).
20 This version of the identification problem—inability to get substantially all of the responsible injurers in court—has emerged as a barrier to market share liability claims. See, e.g., Skipworth v. Lead Indus. Ass’n, 690 A.2d 169, 175 (Pa. 1997) (rejecting market share liability claim in case of 100-plus year-old house). Admittedly, the problem is different in the slavery reparations context. In Skipworth, the fact that the plaintiff could not be sure that he had joined the responsible defendant or defendants was a major flaw. Id. at 174. Plaintiffs in the FleetBoston case are suing the successors of proper defendants, but their levels of responsibility for harms to the plaintiff class differ greatly. Complaint & Jury Trial Demand at 8–9, Farmer-Paellmann (No. 02–CV–1862). In addition, in most cases the link, in terms of finances or business practices, between the successor and its pre-1865 predecessor is tenuous.
21 See City of Philadelphia v. Lead Indus. Ass’n, Inc., 994 F.2d 112, 125–27 (discussing judicial responses to market share liability).
22 See Keith N. Hylton, Slavery and Tort Law 46–51, (Boston Univ. Sch. of Law, Working Paper No. 03-02, 2003, Soc. Science Research Network Elec. Paper Collection) (exploring the problem of causation and proximate cause), at http://papers.ssrn.com/ paper.taf?abstract_id=374200.
23 In December 1974, the class action suit was settled for roughly $10 million, which provided $37,500 to each of the surviving subjects of the study and smaller amounts to other victims. Galanter, supra note 17, at 124 n.2.
24 See generally Daniel Jonah Goldhagen, Hitler’s Willing Executioners: Ordinary Germans & the Holocaust (1996).
25 See Summers v. Tice, 199 P.2d 1, 5 (Cal. 1948).
26 See First Amended Complaint at 7–8, Alexander v. Governor of State of Oklahoma (N.D. Okla. 2003) (No. 03–CV–133) (“Defendants the GOVERNOR OF THE STATE OF OKLAHOMA and the CITY OF TULSA conspired together and acted in concert with one another throughout and after the Riot. The Defendants called out local units of the State National Guard and deputized white citizens of Tulsa, Oklahoma (‘Tulsa’), who, acting under color of state law, participated as members of a white mob in a race Riot that was designed to, and did in fact, brutalize and terrorize the African American residents of the Greenwood District.”).
27 489 U.S. 189 (1989).
28 Id. at 201–02.
29 First Amended Complaint at 18, Alexander (No. 03–CV–133). “The legislature of the State of Oklahoma adopted many of the Commission’s findings by statute in 2001.” Id. at 20.
30 See, e.g., Day v. Meek, 976 P.2d 1202 (Utah 1999).
31 First Amended Complant at 19–20, 19 n.20, Alexander (No. 03–CV–133) (citing Brophy, supra note 3, at 95–97).
32 Id. at 20–21, 164.