[*PG31]A FRAMEWORK FOR REPARATIONS CLAIMS

Keith N. Hylton*

Abstract:  These remarks, prepared for the Boston College Third World Law Journal Reparations Symposium, compare the goals and viability of reparations claims as tort suits. I contrast two approaches observed in the claims: a “doing justice” model, which involves seeking compen-sation in important cases of uncorrected or uncompensated injustice, and a “social welfare” model that seeks to change the distribution of wealth. Claims under the first category are far more consistent with tort doctrine and likely to meet their goals than social welfare-based claims.

Introduction

I am aware of two extant legal claims for reparations, the Farmer-Paellmann v. FleetBoston1 case in New York and now the claim for compensation in Tulsa, Oklahoma.2 The FleetBoston complaint seeks compensatory damages, punitive damages, restitution, and an accounting of profits from American slavery. The Tulsa complaint seeks compensation for victims whose relatives were killed and property destroyed by angry white mobs that rioted though Tulsa’s black community in 1921.3

My aim in this article is to compare different reparations claims in terms of their goals and viability as tort suits. I contrast two approaches observed in the claims: a “social welfare” model and a “doing justice” model. Part I of this article highlights the distinctions between these two approaches. Part II analyzes the potential of the social welfare model by drawing upon statistical data measuring rela[*PG32]tive poverty rates among black and white families in the United States. Parts III and IV analyze the potential of both the social welfare model and the justice model by setting up a tort-based framework in which to determine the relative likelihood that these claims will prevail in court. I conclude that reparations claims under the justice model are far more consistent with tort doctrine and likely to meet their goals than the social-welfare-based claims.

I.  Two Approaches to Reparations Claims: Justice
Versus Social Welfare

Although both the FleetBoston and Tulsa complaints have been described as reparations claims, there are significant differences between them. They reflect two distinct and in some ways conflicting policies behind reparations litigation. One approach is driven in large part by social welfare and distributional goals. The other approach is based on a desire to correct historical injustices; simply to “do justice.”4

The justice approach views reparations lawsuits as efforts to identify uncorrected or uncompensated cases of injustice, and to seek “correction” in the Aristotelian sense of returning the parties to positions roughly similar to the pre-injury setting. This involves identifying particular individuals or entities that committed bad acts and particular victims who were injured. Such correction also requires specifying the precise acts that led to injury, and the sums necessary to compensate victims for the injuries. The Tulsa complaint fits this description. The lawyers who filed the complaint have rounded up individuals whose property was destroyed and whose relatives were killed or injured during the Tulsa riots. Another example under this category is the class action suit brought against the federal government in 1973 for the Tuskegee syphilis experiment.5 Yet another example is the Civil Liberties Act of 1988, which provides compensation for Japanese [*PG33]Americans held in internment camps during World War II.6 The statute compensates only direct victims—the individuals who were held in internment camps.

In contrast to the justice approach, the social welfare approach reflected in the FleetBoston complaint does not seek to do justice in any discrete case, but rather, aims for a significant redistribution of wealth. The complaint names several existing corporations as defendants, such as FleetBoston (a bank) and CSX (a railroad), including a reference to one thousand “Corporate Does” as additional defendants.7 So many businesses had a hand in slavery that the complaint could just as well refer to ten thousand Corporate Does. The plaintiff, Deadria Farmer-Paellmann, sues on “behalf of herself and all other persons similarly situated”—in other words, on behalf of all African Americans whose ancestors were held as slaves in this country.8

This brief description of the Tulsa and FleetBoston complaints should be sufficient to illustrate the differences between the social welfare and justice approaches. There is nothing controversial about doing justice; most lawsuits claim to have that principle at their core. The social welfare approach, however, is unusual in litigation. At the heart of the FleetBoston suit is a belief that reparations litigation will compensate or correct for years and years of inattention, or insufficient attention, to the welfare of African Americans. In short, proponents hope that FleetBoston-like lawsuits will force through the kind of broad redistribution of resources toward poor black citizens that might never be achieved through the political process.

The social welfare approach shares much in common with the recent wave of tobacco litigation and the lawsuits against gun companies. The tobacco litigation, specifically the “Master Settlement Agree-ment” between tobacco companies and litigating states, led to a large-scale redistribution from cigarette manufacturers and their customers to other groups in society.9 That redistribution compensates society for some of the “externalities” imposed by the cigarette industry and helps to shrink its overall size. Many have argued that such a massive redistribution is socially desirable, and that Congress or state legistlatures [*PG34]would have failed to achieve a similar result because tobacco companies circulate enough money throughout government to block any significant move toward greater regulation or taxation. In the same sense, proponents of FleetBoston-like reparations claims believe that significant redistribution toward groups that make up America’s underclass will not be achieved through legislative action. Thus, reparations proponents have turned toward the courts.

II.  Statistics and the Social Welfare Approach

Perhaps the best way to get a sense of the potential of the social welfare approach is to start with a review of where things stand in terms of relative welfare levels. Table 1 shows the percentage of families living below the poverty line in the United States for the years 1959 to 1999. The first two columns in the table compare poverty rates for black and white families, including those not married (female-headed households). The last two columns compare poverty rates for married families.

The statistics show that the poverty rate among black families fell from nearly 50% in 1959 to 28% in 1969. It held steady at that level for the next twenty years. The most recent year in Table 1, 1999, shows the poverty rate for black families at 22%, a substantial decline relative to the stagnation of the previous three decades.

White families appear to have made substantial progress from 1959 to 1969; their poverty rate dropped from 15% to 8% during that period. After 1969, white families made inconsistent progress for the next twenty years. While the statistics for white families do not show the same stagnation seen in the numbers for black families, the poverty rate at the end of 1989 is the same as it was at the end of 1969. In 1999, we see a significant drop in the white poverty rate down to almost 7%.

Table 1:Families Below Poverty Line in the United States 10

Year
% of Families
White
% of Families
Black
% of Families
White Married
% of Families
Black Married
1959 15.2 48.1

1969 7.7 27.9


1979 6.9 27.8 4.7 13.2
1989 7.8 27.8 5.0 11.8
1999 7.3 21.9
4.4 7.1

[*PG35] Table 1 suggests a pessimistic outlook for the potential of social welfare-based reparations litigation. The most aggressive period of redistributional policy implemented by the federal government, 1969 to 1989,11 coincides with roughly twenty years of stagnation in the poverty rate for black families. For those who believe in the transformational potential of FleetBoston-like lawsuits, this is a disappointing fact.

Census data on poverty rates for married families became available much later, and so Table 1 shows figures only from 1979 to 1999. These data suggest some interesting observations. For both races, the poverty rates are lower within the population of married families. The decline appears to be much greater for black families, however. The ratio of white married to general family poverty rates runs from a high of 68% in 1979 to 60% in 1999. The ratio of black married to general family poverty runs from 47% in 1979 to 32% in 1999.

The relative poverty rates of married families to general families suggest that most of the difference between black and white family poverty rates can be explained by family structure—specifically, the low rate of marriage among black families below the poverty line. Indeed, the 1999 Census data on poverty rates suggest that family structure has a significant influence on wealth. In 1999, the marriage rate among white families below the poverty line was 82%.12 The marriage rate among black families below the poverty line was 48%.13 The poverty rate among non-married white families was 20%.14 The poverty rate among non-married black families was 36%.15 If black families below the poverty line had the same marriage rate as white families below the poverty line in 1999, the general black poverty rate would be 12.3%,16 nearly half the 22% level reported for that year.

[*PG36] That the black poverty rate appears to be so largely influenced by family structure has to be considered a discouraging piece of information for proponents of the social welfare model of reparations litigation. Reparations lawsuits simply cannot do much to change the marriage rate in poor black families.

Perhaps I have been unfair in my description of the social welfare model. The goal of the FleetBoston suit may be to use the money collected from defendants to build social institutions that foster family stability, enhancement of human capital, and the development of businesses. If so, the social welfare based litigation may indeed lead to a substantial drop in the black poverty rate. But this is a purely speculative argument. There would be a substantial lag between payout and results if the real aim of the FleetBoston suit were to invest in the development of social capital. Also, there is nothing in the FleetBoston complaint that would lead one to believe that the aim of the lawsuit is to fund social capital development.

III.  A Framework for Claims

Two features distinguish reparations claims from ordinary, run-of-the-mill tort lawsuits. One is a credible assertion by the plaintiffs that they faced an insurmountable legal barrier in the past preventing them from seeking a remedy in the courts at the time of the initial injury. This is true of both the Tulsa and FleetBoston complaints. Lynch mobs initiated the Tulsa riots, claiming to be searching for a black man accused of assaulting a white woman. In that period, when racist lynchings were common, black residents of Tulsa would have rationally assumed that no court would seriously consider a lawsuit seeking compensation for injuries caused by a lynch mob. In the FleetBoston complaint, the claim of a legal barrier is more credible: slavery was formally sanctioned by law until its abolition in 1865.

The second distinguishing feature of reparations claims is passage of time; the claims are typically brought long after relevant tort and criminal statutes of limitations have passed. The passage of time problem presents several legal difficulties. First, there is the problem of identification. The identities of the victims and injurers are hard to determine,17 though the importance of this problem varies with the type [*PG37]of claim. The Tulsa complaint involves identifiable victims. The injurers in the Tulsa case are to some extent identifiable. Some of the vandals and killers are probably still alive, perhaps living quietly in Tulsa. Further, if you accept plaintiffs’ claims that the city and state governments are partially responsible, which seems plausible when a group launches a pogrom and goes unpunished by the state, then those entities still exist and can be sued. Nevertheless, the local and state governments have surely changed since the days of the Tulsa riots. Although they are formally the same entities that were in existence at the time of the riots, they are vastly different from their predecessor regimes in terms of the characteristics relevant to the lawsuit.

Identification is a much more serious problem in the FleetBoston case. The named corporate defendants had no direct hand in the slavery business; they are successors to businesses that once had a hand in slavery. This raises the same problem we observe in the Tulsa case but in a more severe form. While the defendants in Tulsa are formally the same entities that were in existence at the time of the riots, though their characters have changed, the defendants in FleetBoston are not even formally the same entities. Moreover, the successor corporations named as defendants in FleetBoston probably bear little resemblance to their predecessor firms. Given that successor firms are generally not liable for the torts of predecessor firms, this is a potentially important obstacle to plaintiffs.18 Successorship law makes exceptions, forcing successors to assume the liabilities of predecessors in special cases in which the successor has promised to assume those liabilities or, at the least, has continued the same operations.19 But the successors in this case probably do not fall into either exception.

Perhaps the more troubling identification problem in FleetBoston is that it appears to be a matter of chance that some corporations have been identified as successors.20 One assumes there were many more [*PG38]firms involved in slavery than the number that appear as named defendants on the FleetBoston complaint. Suppose the named defendants (including the Corporate Does) were all held liable. Should their liability be capped, as in the market share liability cases, by their degree of responsibility in creating the harm?21

The general identification problem on the part of plaintiffs in the FleetBoston case is particularly severe. This is a well-known problem, so I will not tax the reader with a detailed account. Who are the descendants of the victims of slavery? What should be done about African Americans who cannot trace an unbroken blood line through other descendants of slaves? Should an African-American multimillionaire who can trace an unbroken blood line to slavery be considered within the plaintiff class?

The second problem connected to the passage of time is described as “causation” or “proximate cause” in the law. The law requires proof of a causal link between the plaintiff’s injury claim and the defendant’s breach of the legal standard. I have explored this problem elsewhere.22 For now, it should be enough to say that it will not be easy to prove that a particular plaintiff’s position today is the direct result of slavery several generations ago.

The third problem connected to the passage of time is that of prescription of legal rights. I refer to statutes of limitation. They exist in part because of the reasons mentioned above—identification and causation, both of which become difficult to prove as time passes. They also exist because the deterrent effect of the law is likely to be weak, relative to the cost of its implementation, as more time passes between initial injury and enforcement of the law.

IV.  Applying the Framework

Looking at the identification problem alone, we can classify reparations complaints according to the scheme in Figure 1 below. The [*PG39]columns describe categories of identifiable and non-identifiable injurers. The rows describe categories of identifiable and non-identifiable victims. So, for example, the first cell of Figure 1 contains complaints involving identifiable injurers and victims.

Under the category of identifiable injurers, I have included cases involving injurers who were actively responsible for the harms imposed on victims. For example, the Tuskegee syphilis experiments involved identifiable government departments.23 I put the Tulsa complaint in the non-identifiable category because the only responsible parties identified so far are the local governments, who were passive.

Holocaust reparations claims belong in both the identifiable and non-identifiable injurer categories. Claims against the German government or against Swiss banks involve identifiable injurers who were actively responsible, though again in the form of successor corporations. Holocaust claims also involve a potentially large number of passively responsible actors, which are difficult to identify. For example, claims against manufacturers for selling technology or items that aided the Nazi regime probably could be asserted against an indeterminable number of corporations. And then there is the Goldhagen thesis, that most ordinary Germans were willing accomplices,24 which creates an even larger identification issue.

The only unexplained part of Figure 1 involves identifiable defendants and non-identifiable plaintiffs. The claims to communal land by American Indians or Australian Aborigines are representative of this type of reparations claim. The actively responsible injurer is easy to identify. The victims, descendants of the initial group of dispossessed natives, are sometimes difficult to identify. Indeed, the issues are equivalent to the ones that arise in determining where to group the plaintiff class in the FleetBoston case.

Figure 1
pD
Identifiable Injurers
Non-identifiable Injurers
Identifiable Victims
Tuskegee, Japanese internment, Holocaust,
Tulsa (conspiracy theory)
Tulsa (passive theory), Holocaust
Non-identifiable Victims
Communal land claims
(in United States, Australia)
Fleet Boston

[*PG40] My point in setting up this framework is to differentiate the types of reparations claims in terms of their likelihood of prevailing in court. The ability to identify parties is a basic prerequisite for any tort suit seeking compensation for injuries. A tort plaintiff is unlikely to collect damages if a court cannot be relatively sure that the defendant he or she is suing is really the one who caused the plaintiff’s injury; the same is true if the court cannot be sure that the plaintiff is really the one who suffered an injury. The tort cases put this problem under the general category of “factual causation.” The oldest and most widely accepted solution to the identification problem appeared in Summers v. Tice, where the court shifted the burden of proof to two hunters who both shot at the plaintiff at the same time, and only one of them wounded the plaintiff.25

In terms of identification, the Tuskegee case falls within the strongest category of claims because both the victims and the actively responsible injurers were identified. The Tulsa claim is almost as strong, though its closeness to the Tuskegee case depends on the plaintiffs’ theory of liability. If the plaintiffs assert and produce sufficient evidence to prove that the local and state government defendants acted in conspiracy with leaders of the rioting mob, then the Tulsa claim is essentially equivalent to the Tuskegee case.26 If, however, the plaintiffs can show only that the local and state governments were negligent, in the passive sense of not doing enough to prevent the harm or punish the injurers, then the Tulsa claim is weaker than the Tuskegee case because the Tulsa defendants would not be actively responsible injurers. Still, even under this theory, it is arguably too strict to put the Tulsa claim in the category of non-identifiable defendants. In terms of identification, the Tulsa complaint is much closer to the Tuskegee case than to the FleetBoston claim.

Though the Tulsa complaint is relatively close to the Tuskegee case on identification grounds, and therefore a relatively strong case on that score, the other barriers connected to the passage of time (reviewed above) remain and still must be surmounted. The proximate [*PG41]causation problem is not a serious obstacle. This is not to say that proximate cause issues are irrelevant—they clearly are relevant. Nevertheless, the proximate cause objections appear to be weak.

What kind of proximate cause defense could be asserted in the Tulsa case? There is a basic rule from the constitutional tort cases, similar to the general tort rule on rescue, that a government department does not have a duty to rescue a particular citizen from private harm. The doctrine can be traced to DeShaney v. Winnebago County Department of Social Services,27 in which the Supreme Court rejected the constitutional tort claim brought against a county social services department for failing to intervene to protect a child from being savagely beaten by his father.28 The governments in the Tulsa case could try to cast the lawsuit as a rescue claim, and shield themselves with this version of the no-duty rule. Of course, this defense is preposterous. The plaintiffs are claiming that there was a duty to prevent the harm and to punish the injurers, neither of which appears to have happened. And although I am not familiar with the case law on this issue, I would think a police force does have a duty to prevent a highly foreseeable crime. The old practice of southern police forces to be “gone fishin” at just the time that a racist mob set out to lynch someone should be considered actionable negligence at least.

Since the identification and proximate cause questions are relatively simple and fall in favor of the plaintiffs in the Tulsa complaint, the only remaining question is whether the claim should be barred on prescription grounds, i.e., on the passage of relevant statutes of limitation. This is a difficult question. On the one hand, prescription rules serve important purposes. They bar old claims brought after actively responsible actors and witnesses have moved or passed away and evidence has disappeared and grown stale. On the other hand, this is a case in which plaintiffs have a credible claim that they were effectively barred from suing for compensation within the period of the statutes of limitation. The local police forces and courts would not have cooperated with any effort to sue for compensation in 1921. The litigants would have been left to the mercy of the same lynch mob that conducted the initial riot.

Clearly there was a period, though it is difficult to say how long, in which any claim for compensation would have been difficult to bring and most likely unsuccessful. The Tulsa claim should not have [*PG42]been barred over this period, which implies that the statutes of limitation should have been tolled. The question is whether that period should be considered so long that a suit for compensation brought today should not be barred by the prescription rules. The case boils down to this simple issue. It would seem harsh for a court to deny compensation on such a narrow ground, especially in view of the similarities between the Tulsa and Tuskegee claims. Nevertheless, I am not aware of any court tolling a statute of limitations because the plaintiffs rationally discounted the likelihood of a successful suit.

As it happens, the Tulsa plaintiffs are arguing that a successful lawsuit would have been exceedingly difficult until the year 2001, when a special commission formed by the state of Oklahoma presented a more or less full account of what happened during the 1921 riot.29 This should be viewed as an effort to fall within the “discovery” basis for tolling a statute of limitations. Under the discovery rule, a statute of limitations is tolled until the plaintiff discovers his injury—as in the case of a medical malpractice victim who discovers that a sponge has been left inside him months after the surgeon’s negligent act.30 The Tulsa plaintiffs can be understood as arguing that there was not enough information about the cause of the 1921 riot to bring a successful suit until the publication of the 2001 report. To be sure, this is not the same as the traditional discovery argument, but it is close.

This is a plausible justification for tolling the statute of limitations only because of the special circumstances of the Tulsa case. Lawsuits brought by victims soon after the riots were met with hostility in the local courts and government offices and routinely were dismissed.31 Official accounts of the riots were deliberately vague and obfuscated the chain of causation and responsibility.32 In addition, many of the victims eventually moved on, choosing to build their lives again in a new environment rather than staying behind to regain what was lost. Given the enormous cost of finding victims, persuading them to prosecute a claim, and proving responsibility, a highly plausible case can be made that the Tulsa suit was not a feasible claim for a private [*PG43]lawyer to pursue until the state’s own investigation had set out the facts on causation and responsibility.

If this statute of limitations question is resolved in favor of plaintiffs in the Tulsa case, will the FleetBoston complaint appear to be stronger? Perhaps, but the distance between the FleetBoston and Tulsa claims is considerably further than that between the Tulsa and Tuskegee claims.

Conclusion

When thinking about reparations claims, one should avoid the mistake of viewing them as monolithic, having the same difficulties in terms of identification of plaintiffs, causation, and prescription of legal rights. In fact, reparations claims vary along many legal dimensions, creating a rich array in terms of their consistency with settled law. This paper has set out a framework for evaluating the likelihood that these claims will prevail in court, primarily in the hope that it might help clarify the issues in debates over the wisdom of reparations litigation.

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