* Assistant Professor, Western New England College School of Law. Thanks to Zachary Fulz, Adriaan Lanni, Natasha Williams, Alfred L. Brophy, Kenneth Mack, and Charles J. Ogletree, Jr. for their comments and encouragement during the writing of this paper. I also owe a special debt to Professor Randall Kennedy, whose supportive and thoughtful comments have deeply influenced my thinking on reparations.
1 President Lyndon B. Johnson, To Fulfill These Rights, Commencement Address at Howard University (June 4, 1965), at http://usinfo.state.gov/usa/civilrights/S060465.htm.
2 Chris L. Jenkins & Hamil R. Harris, Descendants of Slaves Rally for Reparations: Organizers Call Event Milestone in Movement, Wash. Post, Aug. 18, 2002, at C1.
3 See, e.g., David Horowitz, Ten Reasons Why Reparations for Blacks is a Bad Idea for Blacks -- and Racist, Too! (Mar. 12, 2001) (controversial anti-reparations advertisement), at http:// www.adversity.net/reparations/anti_repations _ad.htm.
4 For example, a recent study showed that while 79% of blacks supported a governmental apology to African Americans, only 20% of whites did. Harbour Fraser Hodder, Riven by Reparations: The Price of Slavery, Harv. Mag., May/June 2003, at 12, 13. When it comes to monetary reparations to slave descendants, two-thirds of blacks favored the idea, against a mere 4% of whites, demonstrating a 63-point “racial gulf.” Id.
“These numbers are relatively shocking by any standard,” says Michael Dawson [author of the study]. “When we talk about gender gaps in American politics, we’re talking about gaps of 5 to 15 percent. Here we’re talking about gaps of the order of 50 to more than 60 percent.” Deeply polarized perceptions of racial equality (or its lack) are a major factor underlying the overwhelming disparities. While a majority of white respondents (64 percent) thought that blacks had achieved or would soon achieve equality, an even larger majority (78 percent) of blacks believed the opposite: that African Americans would not achieve racial equality in their lifetimes, or that they would never achieve equality.
5 See Rhonda V. Magee, The Master’s Tools, from the Bottom Up: Responses to African-American Reparations Theory in Mainstream and Outsider Remedies Discourse, 79 Va. L. Rev. 863, 914 (1993) (“More so than any other remedial tradition, reparations resonate with the traditional theory of corrective justice by which the scope of the violation dictates the scope of the remedy, and by which compensation is granted for unjust enrichment.”); see also Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323, 373–97 (1987) (offering classic discussion of the tort model); Kim Forde-Mazrui, Taking the Right Seriously: America’s Moral Responsibility for Effects of Past Racial Discrimination 26–27 (Soc. Sci. Network Elec. Paper Collection, Working Paper No. 02-1, 2002) (suggesting unjust enrichment as another reason “why society might choose to ameliorate conditions disproportionately suffered by black Americans”), available at http://papers.ssrn.com/sol3/delivery.cfm/SSRN_ID311860_code02061 3630.pdf?abstatid=311860. Matsuda also considers unjust enrichment as an appropriate means of analyzing the duty owed to minority groups claiming reparations. Matsuda, supra, at 380 & 3.3(d) n.231.
6 See generally Randall Robinson, The Debt: What America Owes to Blacks (2000); Anthony Gifford, The Legal Basis of the Claim for Slavery Reparations, Hum. Rts. Mag., Spring 2000, at 16; Art Alcausin Hall, There Is a Lot to Be Repaired Before We Get to Reparations: A Critique of the Underlying Issues of Race that Impact the Fate of African American Reparations, 2 Scholar 1 (2000); Kevin Hopkins, Forgive U.S. Our Debts? Righting the Wrongs of Slavery, 89 Geo. L.J. 2531 (2001); Donald Aquinas Lancaster, Jr., The Alchemy and Legacy of the United States of America’s Sanction of Slavery and Segregation: A Property Law and Equitable Remedy Analysis of African American Reparations, 43 How. L.J. 171 (2000); Jeremy Levitt, Black African Reparations: Making a Claim for Enslavement and Systematic De Jure Segregation and Racial Discrimination Under American International Law, 25 S.U. L. Rev. 1 (1997); Vincene Verdun, If the Shoe Fits, Wear It: An Analysis of Reparations to African Americans, 67 Tul. L. Rev. 597 (1993); Robert Westley, Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations?, 19 B.C. Third World L.J. 429 (1998); Eric K. Yamamoto, Racial Reparations: Japanese American Redress and African American Claims, 19 B.C. Third World L.J. 477 (1998) [hereinafter Yamamoto, Racial Reparations]; Rhonda V. Magee, Note, The Master’s Tools, From the Bottom Up: Responses to African-American Reparations Theory in Mainstream and Outsider Remedies Discourse, 79 Va. L. Rev. 863 (1993). A notable exception to this trend is one of the earliest modern legal arguments (mostly) supporting reparations. See Boris I. Bittker, The Case for Black Reparations (First Beacon Press 2003) (1973).
7 Emma Coleman Jordan, A History Lesson: Reparations for What?, 58 N.Y.U. Ann. Surv. Am. L. 557, 558 (2003) (quoting Hanoch Dagan, The Fourth Pillar: The Law & Ethics of Restitution (forthcoming 2003) (manuscript of Chapter 7 at 8)).
8 Often, this discussion of moral or legal conflict is phrased in terms of “balancing.”
[B]alancing . . . continues to be seductive . . . because it fits our usual conceptions and metaphors of justice, fairness, and reasonableness. Justice holds scales in her hands. We “weigh” the evidence to determine which party prevails. In reaching difficult personal decisions, we list the “pros” and “cons.” Policy makers undertake cost-benefit analyses when choosing among alternative courses of action. Balancing provides a careful, sensitive, thoughtful way to dispense justice, to give each his or her due. By gently urging us to consider all the relevant factors, it fosters serenity and confidence. It is the mark of a reasonable, rational, subtle mind.
T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943, 962 (1987); see also Patrick M. McFadden, The Balancing Test, 29 B.C. L. Rev. 585, 596 (1988) (identifying three steps to any balancing test: “announcing the factors to be balanced, weighing those factors, and announcing the victor”).
9 See Matsuda, supra note 5, at 375 (suggesting that a reparations claim is a typical individual rights claim recast as a group rights claim).
10 Id. at 374.
11 See id. at 373–80.
12 Verdun, supra note 6, at 631.
13 Id. at 639.
14 Id. at 631.
15 A tort is “a civil wrong for which a remedy may be obtained, usually in the form of damages.” 74 Am. Jur. 2d Torts § 1 (2003). Matsuda, for example, believes that tort theories of reparations partake of the bilateral logic described. See Jordan, supra note 7, at 558; Matsuda, supra note 5, at 375. Reparations, however, may be expressed as an objective duty founded in respect for the rights of victims of injurious actions. See D.N. MacCormick, The Obligation of Reparation, 78 Proc. Aristoelian Soc’y 175, 183–89 (1978). Interestingly, this definition of reparations permits a tort theory of reparations that steers clear of standard theories as to the correlativity of rights and duties that are implicit in the confrontation model. See id. at 185.
16 “Unjust enrichment is defined as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience.” 66 Am. Jur. 2d Restitution and Implied Contracts § 9 (2002).
It is a general principle, underlying various legal doctrines and remedies, that one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly.
Id. at § 8.
17 See, e.g., Robinson, supra note 6, at 16 (arguing that America can not be whole “until all Americans . . . . are repaired in their views of Africa’s role in history”). One way to distinguish between the tort and unjust enrichment theories is to suggest that tort law is a form of “corrective justice” that compensates the victim by assessing the magnitude of the loss suffered, whereas unjust enrichment attempts to determine damages by measuring the gain accruing to the perpetrator. See Forde-Mazuri, supra note 5, at 27 n.100. Tort law requires compensation for an injury inflicted. It entails that one group—-white Americans—-injured another group—-African American slaves. See Matsuda, supra note 5, at 380–84 (discussing causation, forseeability, and deterrence in reparations claims). The theory of unjust enrichment entails, first, that one group—in this case, generally, though not limited to, white Americans—has profited (and continues to profit) at the expense of another group—African Americans—and that such profit was wrongful. See 66 Am. Jur. 2d Restitution and Implied Contracts §§ 8–9 (2002).
18 The difference between the two theories lies primarily in the measurement of damages. Under a tort theory, the measure of damages is the injury suffered. Under an unjust enrichment theory, the measure of damages are the benefits accruing to the perpetrator. The damages awarded under the unjust enrichment theory may amount to more, less, or the same as under a tort theory. See Forde-Mazrui, supra note 5, at 27 n.100.
19 See, e.g., Ewart Guinier, Book Review, 82 Yale L.J. 1719, 1722 (1973) (arguing that broad reparations legislatoin will “transcend the difficulties” of individual administration of reparations); Charles J. Ogletree, Jr., Litigating the Legacy of Slavery, N.Y. Times, Mar. 31, 2002, § 4, at 9 (discussing possibilities for the distribution of reparations on a national level); Charles J. Ogletree, Jr. & E.R. Shipp, Does America Owe Us?, Essence, Feb. 2003, at 128 (citing a recent example of reparations paid to black farmers).
20 See John Hope Franklin, Letter: Horowitz’s Diatribe Contains Historical Inaccuracies (Mar. 30, 2001), available at http://squawk.ca/lbo-talk/0103/2289.html.
21 See Hodder, supra, note 4, at 13 (citing statistical evidence to demonstrate that most people do not endorse reparations).
22 See Bittker, supra note 6, at 4–5, app. at 159–75. Forman’s main demands included the establishment of a black land bank; four major publishing and printing industries; four television networks; a research center; a training center; a welfare rights organization; a labor strike and defense fund; a pan-African business cooperative; and a black university. See James Foreman, Black Manifesto, Address Before the Riverside Church of New York City (May 4, 1969), in Bittker, supra note 6, app. at 159–75.
23 See Jenkins & Harris, supra note 2, at C2.
24 See generally John Finnis, Natural Law and Natural Rights (1982) (arguing that natural law provides the criteria for evaluating the institutions that secure its benefits).
25 See, e.g., Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning 36–39 (Walter Wheeler Cook ed., 1964) (1919) (defining rights and duties, privileges and “no rights”).
26 See Horowitz, supra note 3, ¶ 3.
27 See id. ¶¶ 3, 4.
28 See id. This probably explains the popularity of “psychological harm” theories that seek to account for the experience of many African Americans in the continuing psychological harm bequeathed by slavery. Irma Jacqueline Ozer, Reparations for African Americans, 41 How. L.J. 479, 492 (1998); Verdun, supra note 6, at 634. While I am somewhat sympathetic to such arguments, I think there are candidates closer to home that do a better job of explaining what DuBois analyzed as the double—one might say multiple—categories of citizenship and community that African Americans must negotiate in order to have an American identity. See W.E.B. Dubois, The Souls of Black Folk 3–4 (1931) (describing the double identity of a black as an African American, “even feel[ing] his dual identity—an American, a Negro”). Some of these candidates may be traceable back to slavery. But to focus on a unique psychological harm experienced by all descendants of slaves strays too close to essentialism for my liking.
29 See Keith N. Hylton, A Framework for Reparations Claims, 24 B.C. Third World L.J. 31, 36 (2004). Hylton argues that there is no direct link to be made between reparations lawsuits and broad uplift for African Americans. See id.
30 See, e.g., Patricia Williams, The Rooster’s Egg: On the Persistence of Prejudice 118–19 (1995) (providing example of people’s anger when confronted with racial humor).
31 Derrick A. Bell, Jr., Book Review, Dissection of a Dream, 9 Harv. C.R.-C.L. L. Rev. 156, 158 (1974) (arguing that “there is a tactical loss in excluding the slavery period: setting this voluntary limitation on coverage sacrifices much of the emotional component that provides the moral leverage for black reparations demands”).
32 On one level, the confrontational model, in requiring that the conflicting rights of victim and perpetrator are judged in a structure that emphasizes nominal equality, serves to validate the legitimacy of the claim of injury suffered by slaves and their descendants. See Matsuda, supra note 5, at 374–75 (analogizing a reparations claim to the standard legal claim). On another level, the confrontational model can be regarded as a visceral expression of the outrage consequent to the psychological injury suffered during and after slavery. See Magee, supra note 5, at 894–95 (arguing that the “unwillingness of legislative reformers to eradicate the legacy of slavery through economic redistribution . . . . created a legal-political climate in which blacks were vulnerable to extreme opposition and intimidation”).
33 See Nancy Franklin, Watching Wanda: A Big Personality Hits the Small Screen, New Yorker, May 5, 2003, at 102–03 [hereinafter Franklin, Watching Wanda] (discussing Wanda at Large); Charles J. Ogletree, Jr., The Case for Reparations, USA Weekend, Aug. 18, 2002, ¶ 9 [hereinafter Ogeltree, The Case for Reperations] (discussing The Chris Rock Show), available at http://www.usaweekend.com/02_issues/020818/020818reparations.html (last visited Nov. 4, 2003). Wanda Sykes is herself a former star of, and writer for, The Chris Rock Show. Franklin, Watching Wanda, supra, at 102–03.
34 See Ogletree, The Case for Reparations, supra note 33, ¶ 9.
35 Franklin, Watching Wanda, supra note 33, at 102. Viewed in light of The Black Manifesto, Sykes’s choice of just over fifteen dollars for reparations is perhaps not so fanciful: Forman also demanded fifteen dollars. See Magee, supra note 5, at 883.
36 This would suggest that Horowitz’s critique of reparations as a free handout for African Americans was the point made by the joke. Here, the joke draws upon the stereotype of African Americans as “playing the victim card.” See, e.g., John McWhorter, Blood Money: Why I Don’t Want Reparations for Slavery, Am. Enter., July 1, 2001, at 20 (discussing reparations as an example of African-American “victimologist thought”), available at http://www .theamericanenterprise.org/issues/articleid.15514/article_detail.asp (last visited Nov. 4, 2003). On this understanding, the joke works because Rock and Sykes present themselves as representatives of a “debtor race.” See Forde-Mazrui, supra note 5, at 26 n.99 (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring) (“Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race.”)).
37 That is, it is not the fact that reparations is itself laughable.
38 This analysis of the joke suggests that either the white person or the audience recognizes African American claims as, in some way, justified. Additionally, in the Rock sketch, we may also laugh at the white person’s ignorance of the validity of the reparations claim made by African Americans.
39 Part of the joke is the obvious relish with which Rock and Sykes make their demands for reparations.
40 See Alexander v. Governor of State of Oklahoma, No. 03–CV–133 (N.D. Okla. filed Feb. 28, 2003); In re African Am. Litig., No. 02–CV–7764 (N.D. Ill. filed Oct. 28, 2002); Hurdle v. FleetBoston Fin. Corp., No. 02–CV–04653 (N.D. Cal. filed Sept. 25, 2002); Johnson v. Aetna Life Ins. Co., No. 02–CV–2712 (E.D. La. filed Sept. 3, 2002); Porter v. Lloyds of London, No. 02–CV–6180 (N.D. Ill. filed Aug. 29, 2002); Ntzebesa v. Citigroup, Inc., No. 02–CV–04712 (S.D.N.Y. filed Jun. 19, 2002); Barber v. N.Y. Life Ins. Co., No. 02–CV–2084 (D.N.J. filed May 2, 2002); Carrington v. FleetBoston Fin. Corp., No. 02–CV–01863 (E.D.N.Y. filed Mar. 26, 2002); Farmer-Paellmann v. FleetBoston Fin. Corp., No. 02–CV–1862 (E.D.N.Y. filed Mar. 26, 2002); Hurdle v. FleetBoston Fin. Corp., No. CGC–02–412388 (Cal. Super. Ct. filed Sept. 10, 2002); see also Khulumani v. Barclays Nat’l Bank, No. 02–CV–05952, (E.D.N.Y. filed Nov. 12, 2002) (seeking reparations for crimes practiced during Apartheid regime in South Africa). Porter, Barber, Farmer-Paellmann, Carrington, Johnson, and Hurdle (02–CV–04653) have all been transferred to the Northern District of Illinois pursuant to 28 U.S.C. § 1407 (multi-district litigation) and consolidated with In re African American Litig. See Minute Order, In re African American Litig., No. 02–CV–7764 (N.D. Ill. Jan. 17, 2003).
41 See Verdun, supra note 6, at 600–02 (noting that Thaddeus Stevens suggested reparations to freed slaves before the Civil War; and noting episodes of political activism, including claims in the 1960s and 1970). In fact, reparations arguments started significantly before 1860. Guinier, supra note 19, at 1720–21. In 1829, David Walker “passionately protested the lack of compensation for the labor of slaves.” Id. at 1721; 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, 285–90 (2003) [hereinafter Ogletree, Repairing the Past] (providing a brief history of the African American reparations movement).
42 See, e.g., Alfred L. Brophy, Some Conceptual and Legal Problems in Reparations for Slavery, 58 N.Y.U. Ann. Surv. Am. L. 497, 536–37 (2003) (discussing broad range of remedies sought by reparations activists); Anthony J. Sebok, Reparations, Unjust Enrichment, and the Importance of Knowing the Difference Between the Two, 58 N.Y.U. Ann. Surv. Am. L. 651, 654–57 (2003) (discussing the problems with treating reparations claims as equity claims).
43 See, e.g., Yamamoto, Racial Reparations, supra note 6, at 490–91 (comparing the Japanese-American reparations claim to successful African-American reparations claims). I consider the moral and philosophical underpinnings of reparations to be deeply and particularly American, drawing forcefully upon ideas embodied in the various founding political and philosophical texts that mark one strand of what counts as American distinctiveness.
44 On apologies for racism, see generally Eric K. Yamamoto, Race Apologies, 1 J. Gender Race & Just. 47 (1997). It is worth noting, however, that there has been no apology for slavery or Jim Crow segregation from the United States government. See Slavery Reparations Advocates Voice Demands in Washington, N.Y. Times, Aug. 18, 2002, § 1, at 30. In contrast, the government has apologized for the internment of Japanese Americans during World War II. See Civil Liberties Act of 1988, 50 U.S.C. app. § 1989 (1988). The government has also apologized for its experimentation on African Americans without their knowledge in the Tuskegee syphilis case. See Alison Mitchell, Clinton Regrets ‘Clearly Racist’ U.S. Study, N.Y. Times, May 17, 1997, § 1, at 10.
45 I believe the open-endedness of the “redistribution” issue is a virtue, not a vice. My view is that some of the most promising aspects of the reparations will prove to be the discussions of first, the relation between the harm and the proposed restitution and, second, the forms that restitution is to take. This latter argument challenges civil rights proponents to move from the defensive to the offensive. Rather than simply battling the rollback of the civil rights gains made during the 1950s, 1960s, and 1970s (a battle that remains worth fighting), reparations challenges civil rights activists to propose a positive agenda of social spending, and to lay out the economic and social costs of that agenda. To this extent, while Professor Hylton’s arguments regarding the justice and social welfare approaches are both forceful and challenging, they should be seen as marking the beginning, not the end, of the discussion, as they engage with but two of the multiple forms of reparations restitution potentially available. See Hylton, supra note 29, at 32–33.
46 See Ogletree, Repairing the Past, supra note 41, at 294–97 (discussing variety of current reparations lawsuits).
47 That suit is Carter v. Jones, No. 03–CV–0485 (W.D. Miss. 2003). While that complaint was filed by one of the local counsel in Alexander v. Oklahoma, the Tulsa Race Riot case, it was not filed by the Reparations Coordinating Committee. The Reparations Coordinating Committee has certainly so far scrupulously avoided suing individuals.
48 See First Amended & Consolidated Complaint at 113–15, In re African Am. Descendants’ Slave Litig., (N.D. Ill. 2003) (No. 1491) (on file with author); The Opening Shots, 22 Am. Lawyer 6, June, 2002, Westlaw, 6/2002 Am. Law. 22; Bill Rigby, 12 Companies Face Slavery Suits; Reparations Sought for Pre-1865 Gains, Fla. Sun-Sentinel, Sept. 4, 2002, Westlaw, 9/4/02 sunsent 5A.
49 See Complaint & Jury Trial Demand at 1, Farmer-Paellmann v. FleetBoston Fin. Corp. (E.D.N.Y. 2002) (No. 02–CV–1862); Joyce Shelby, Slaves Seeking Redress Class Action Suit for Reparations to Descendants, N.Y. Daily News, Mar. 27, 2002, 2002 WL 3170753.
50 See First Amended & Consolidated Complaint at 93–109, In re African Am. Descendants’ Slave Litig. (N.D. Ill. 2003) (No. 1491).
51 Though imaginative, this theory is consistent with the Holocaust litigation model. See generally Michael J. Bazyler, Nuremburg in America: Litigating the Holocaust in United States Courts, 34 U. Rich. L. Rev. 1 (2000) (examining comprehensively Holocaust litigation against banks, insurance companies, and German corporations).
52 The federal government is popularly regarded as the most likely target for reparations.
53 See Cal. Civ. Proc. Code § 1021.5 (West 1980).
54 See Cal. Bus. & Prof. Code § 17200 (West 1997); Hurdle v. FleetBoston Fin. Corp., No. 02–CV–04653, at 37–38 (N.D. Cal. filed Sept. 25, 2002); Hurdle v. FleetBoston Fin. Corp., No. CGC–02–0412388, at 37–38 (Cal. Super. Ct. filed Sept. 10, 2002).
55 Smith v. State Farm Mut. Ins. Co., 113 Cal. Rptr. 2d 399, 414 (Cal. Ct. App. 2001).
56 See Cal. Bus. & Prof. Code § 17203 (West 1997).
57 See James Cox, Reparations Activist: ‘We’re Still Living with the Vestiges of Slavery,’ USA Today, Feb. 23, 2002, at A9 (noting that Farmer-Paellmann discovered 60 corporations that profited in slavery during the course of five years of research in libraries and online).
58 See id. Professor Ogletree has stated that although “[t]he idea of corporate involvement has always been raised in the reparations movement . . . I don’t think anybody has been as conscientious or as thorough as Deadria. She is the key factor in making these (legal) claims come to life.” Id.
59 See California Slave Era Insurance Act, Cal. Ins. Code §§ 13810–13813 (West Supp. 2003); John M. Broder, The Business of Slavery & Penitence, N.Y. Times, May 25, 2003, § 4, at 4 (discussing Los Angeles City Council’s unanimous approval of “an ordinance . . . that would require any company wishing to do business with Los Angeles to investigate and disclose any profits derived from the American slave trade”); Erika Kinetz, What’s the Cost of Freedom? What About Slavery?, N.Y. Times, Apr. 27, 2003, § 14, at 6 (discussing a bill proposed to the New York City Council that would require “companies doing business with the city to ‘search their past and reveal whether they have engaged in or profited from slavery’”); Sabrina L. Miller & Gary Washburn, New Chicago Law Requires Firms to Tell Slavery Links, Chi. Trib., Oct. 3, 2002, § 2, at 1. The most famous piece of modern reparations litigation, H.R. 40, first proposed by Representative John Conyers in 1989, also steers clear of the confrontational model, calling instead for an investigation of the wrongs inflicted by slavery without demanding reparations. See Commission to Study Reparations for African Americans Act, H.R. 40, 108th Cong. (2003). H.R. 40 should be seen as the inspiration behind much of the recent reparations legislation.
60 See Walter Rodney, How Europe Underdeveloped Africa 13–15 (1982).
61 Id.
62 See id. at 149–50, 178–80.
63 Id. at 151.
64 See Manning Marable, How Capitalism Underdeveloped Black America: Problems in Race, Political Economy, & Society 2 (updated ed. 2000).
65 See Randy Krehbiel, Big-name Attorneys Join Riot Lawsuit, Tulsa World, Feb. 26, 2003, at A11 (“Several sources say most of the work on the complaint filed Monday was done by [Professor Charles] Ogletree and Eric Miller, a relatively little known Harvard University lawyer.”).
66 See Alexander v. Governor of State of Okla., No. 03–CV–133 (N.D. Okla. filed Feb. 28, 2003).
67 See Yamamoto, Racial Reparations, supra note 6, at 489–91 (comparing Japanese-American and slavery lawsuits).
68 See id.; see also Hylton, supra note 29, at 32–33, 37–40 (discussing Farmer-Paellmann lawsuit as markedly different from traditional civil-rights lawsuits).
69 See Yamamoto, Racial Reparations, supra note 6, at 490; see also Alfred Brophy, Reconstructing the Dreamland: The Tulsa Riot of 1921, at 103–04, 105, 109–10 (2002).
70 See Brophy, supra note 69, at 103–19. The single most important work setting forth the legal justifications for the Tulsa lawsuit is Professor Brophy’s book on the Tulsa Riot of 1921. Professor Brophy and his book have been instrumental in authoritatively determining the factual basis for the claims in Alexander v. Governor of State of Oklahoma. See Alexander, No. 03–CV–133.
71 See First Amended Complaint at 2–10, Alexander (No. 03–CV–133) (Feb. 28, 2003), available at http://www.ncobra.org/pdffiles/FirstAmendedComplaint.pdf (last visited Nov. 4, 2003).
72 For example, the concept of underdevelopment applies to this lawsuit as to the slavery suits. Before the riot and, ironically, in large part due to racial discrimination, money spent by African Americans in Greenwood tended to stay in Greenwood to the benefit of the whole community. See Charles J. Ogletree, Jr., The Current Reparations Debate, 36 U.C. Davis L. Rev. 1051, 1067–68 (2003) [hereinafter Ogletree, The Current Reparations Debate] (“Before the Riot, the black dollar would circulate thirty-five times before leaving the community.”). The riot ended all of that; after the riot, Greenwood dollars went directly to whites. Id. In recognition of that fact, the 1921 Tulsa Race Riot Reconciliation Act of 2001 created the Greenwood Area Redevelopment Authority (“GARA”) to stimulate business in Greenwood. Okla. Stat. Ann. tit. 74 §§ 8221–8226 (West Supp. 2003). It remains to be seen whether GARA has the desired effect of undoing the damage caused by the riot, although initial reports are not encouraging. See P.J. Lassek, Action Delayed on Proposal for Higher Park Fees, Tulsa World, Jan. 25, 2002, at 13 (reporting delays and objections to appointments to GARA). Given that the riot had repercussions throughout the state, however, some form of statewide initiative modeled upon GARA may also be appropriate.
73 It is this aspect of reparations litigation that is so far ignored by the Farmer-Paellmann lawsuit.
74 See generally Scott Ellsworth, Death in a Promised Land: The Tulsa Riot of 1921 (1982) (documenting racism in Tulsa leading up to the riot and warning that a “segregation of memory” will continue to exist “as long as the injustice which has bred it continues”).
75 A significant alternative source has been the pioneering work and insightful suggestions of Professor Alfred Brophy, another contributor to this symposium.
76 See Okla. Comm’n to Study the Tulsa Race Riot of 1921, Tulsa Race Riot, at ii (Comm. Print 2001), available at www.tulsareparations.org/TRR.htm.
77 Id. at 20.
78 The most notable obstacle is the Eleventh Amendment’s grant of sovereign immunity to the states. See U.S. Const. amend. XI. “The heart of the Eleventh Amendment is its grant of state sovereign immunity from federal court monetary relief designed to compensate for past wrongs.” 1B Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation: Claims & Defenses § 8.3, at 156 (3d ed. 1997).
79 See First Amended Complaint at 192, Alexander v. Governor of State of Oklahoma, (N.D. Okla. 2003) (No. 03–CV–133) (on file with author). Under the doctrine announced in Ex parte Young, 209 U.S. 123, 159–60 (1908), suits against a state officer in his or her official capacity for prospective injunctive or declaratory relief are permissible under the Eleventh Amendment. “The Young doctrine recognizes that if a state official violates federal law, he is stripped of his official or representative character and may be personally liable for his conduct; the State cannot cloak the officer in its sovereign immunity.” Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 288 (1997) (O’Connor, J., concurring); Wolfe v. Ingram, 275 F.3d 1253, 1260 (10th Cir. 2002).
80 See Green v. Mansour, 474 U.S. 64, 67 (1985) (holding that there must be some “ongoing violation of federal law” that provides a nexus between the relief requested and the injury asserted).
81 Okla. Stat. Ann. tit. 70, §§ 2621–2627 (West Supp. 2003) (authorizing Tulsa Reconciliation Education and Scholarship Program (“TRESP”)); Okla. Stat. Ann. tit. 74, § 8000.1 (West 2002) (making legislative findings); Okla. Stat. Ann. tit. 74, § 8201.1 (West 2002) (creating race riot memorial committee); Okla. Stat. Ann. tit. 74, § 8205 (West 2002) (certifying riot survivors); Okla. Stat. Ann. tit. 74, §§ 8221–8226 (creating Greenwood Area Redevelopment Authority (“GARA”) .
82 Okla. Stat. Ann. tit. 70, §§ 2621–2627 (West Supp. 2003).
83 See Okla. Stat. Ann. tit. 74, § 8000.1 (West 2002).
84 To use the language of reckoning and accounting introduced at the beginning of this paper, a full accounting of the causes and effects of the riot suggests a statewide series of injuries, and a proper reckoning for those injuries suggests a series of statewide responses.
85 See Okla. Stat. Ann. tit. 74, § 8000.1 (West 2002).
86 See Aleinikoff, supra note 8, at 962; McFadden, supra note 8, at 596; see also text accompanying notes 6–8, supra.
87 See Ronald Dworkin, A Matter of Principle 144–45 (1985). Dworkin believes that comparison of conflicting options enables us to decide on the basis of reason: the strongest reason wins out. Id. Even when comparison is difficult, or impossible, Dworkin contends, and in principle no choice is demonstrably better than another, we ought still to act as if there is one right answer to the controversy. Id.
88 Bernard Williams, Ethics and the Limits of Philosophy 18 (1985).
89 Aleinikoff, supra note 8, at 962.
90 See id. at 972 (“[T]he Court has no objective criteria for valuing or comparing the interests at stake.”).
91 See Dennis v. United States, 341 U.S. 494, 525 (1951) (Frankfurter, J., concurring) (“Primary responsibility for adjusting the interests which compete in the situation before us of necessity belongs to the Congress . . . . We are to set aside the judgment [of legislators] only if there is no reasonable basis for it.”). In this case, Justice Frankfurter attempted to turn over calibration of the balance’s scale to the legislature, unless the legislature proved wholly unreasonable. Id. at 526.
92 See Charles Yablon, On the Contribution of Baseball to American Legal Theory, 104 Yale L.J. 227, 227–29 (1994) (demonstrating how game rules, specifically baseball rules, are useful in understanding American legal theory).
93 Walter M. Cabot Professor of Aesthetics and the General Theory of Value at Harvard, Emeritus.
94 What is a batter or a pitcher; what is a rook or a pawn; what is a king or an ace; who holds the rope and who skips.
95 See Stanley Cavell, The Claim of Reason 305 (1979) [hereinafter, Cavell, The Claim of Reason]. In baseball, such rules include where the batter stands, how the batter moves around the bases, how the batter scores or is given out, what constitutes a pitch, a strike, a ball, etc.; in chess, how the pieces move, etc. In skipping, there may be a number of different rules depending on the complexity of the skipping game. At its simplest, the skipper cannot keep counting skips towards his or her total if he or she gets tangled in the rope.
96 Id. at 306. In games, not every move is determined by the rules: “[A] certain mastery of a game is required in order to be said to play [a] game at all. A knowledge of every competitive game . . . i.e., every game for which there are principles of play, requires an understanding of its principles as well as a knowledge of its defining rules.” Id. at 304. Thus, there are plays in baseball and moves in chess that are determined by the state of the game and the standard optimal responses to what the opponent is doing. Here, a justification in terms of the defining or regulatory rules may not answer a question about the appropriateness of a given move.
97 Id.
98 Id.
99 See, e.g., Stanley Cavell, Conditions Handsome and Unhandsome: The Constitution of Emersonian Perfectonism 113–14 (1990) [hereinafter Cavell, Conditions] (“In the moral life the equivalent finality is carried . . . by judgment of moral finality . . . one whose resolution is not settled by appeal to a rule defining an institution.”).
100 It is precisely this difference that makes pre-nuptial agreements such an awkward device in a relationship: a pre-nuptial agreement broaches stranger-hood on the eve of a deep commitment to intimacy. To settle the agreement, one must often engage in the sort of arms-length bargaining that characterizes much of contract law.
101 A.M. Honoré, Real Laws, in Law, Morality, & Society: Essays in Honor of H.L.A. Hart 99, 112 (P.M.S. Hacker & Joseph Raz eds., 1977).
102 See generally G.E.M. Anscombe, Intention (2d ed. 1976) (providing perspective on the concept of action and a reason for acting).
103 See generally Stanley Cavell, Must We Mean What We Say? (1976).
104 See Lon L. Fuller, Consideration and Form, 41 Colum. L. Rev. 799, 801–03 (1941) (explaining that law, like language, calls on people to channel their experiences into particular forms “for the legally effective expression of intention”).
105 Neil MacCormick, Law as Institutional Fact, 90 L.Q. Rev. 102, 105 (1974).
106 So, adopting a particular scheme may permit or preclude us from adopting a particular characterization of ourselves or our acts, or others or their acts.
107 See Joseph Raz, The Morality of Freedom 322 (1986) (“A and B are incommensurate if it is neither true that one is better than the other nor true that they are of equal value.”); see also Michael Stocker, Plural & Conflicting Values 169 (1990) (explaining that pluralists recognize “that choice importantly involves determining which values to pursue and which to forego” while monists “tell us that these choices and all other choices are to be made simply on the basis of pleasure”).
108 See Patricia J. Williams, The Alchemy of Race & Rights 64, 84–91, 125, 166 (1991) [hereinafter Williams, Alchemy]; Williams, supra note 30, at 118–19. To my mind, Williams is the legal chronicler par excellence of these moments in which individuals feel slighted and no longer able to sustain a conversation. She is not the only or best known one. See, e.g., James Baldwin, Down at the Cross: A Letter from a Region in My Mind, in The Fire Next Time 29, 69–70 (1963) (describing a bartender’s refusal to serve him at a bar and the ensuing conversation with and hurt feelings of a white bystander). Williams’s examples of the various responses elicited through racial dialogue are not simply her racially or politically loaded interpretations of these conversations or discussions; rather, they are examples of what Wittgenstein might call “language games”; they are examples of everyday or ordinary language usage that chart what might be called the “implications” entailed by the use of a word or concept in a particular context. See Cavell, supra note 103, at 9. Her project in The Alchemy of Race and Rights has, I would suggest, much in common with the goals of ordinary language philosophy. See id. at 3–16 (describing ordinary language philosophy and its interests and techniques).
109 Williams, Alchemy, supra note 108, at 125.
110 Id.
111 Id.
112 The idea that conflicts between values can remain unresolved and recurring in different contexts may be explained by adopting Duncan Kennedy’s concept of “nesting.” Nesting is “the reproduction of the particular argumentative oppositions within the doctrinal structures that apparently resolve them.” Duncan Kennedy, A Semiotics of Legal Argument, 42 Syracuse L. Rev. 75, 112 (1991).
113 Understanding is replaced by confrontation: Williams’s friend’s inability to admit a wrong engendered an insecurity that could only be remedied by Williams’s admission of wrongdoing. This is an all too human situation.
114 Hendrik Ibsen, A Doll’s House (Charlotte Barclund trans. 1996).
115 See Cavell, Conditions, supra note 99, at 113; Ibsen, supra note 114, at 96–106.
116 Cavell, Conditions, supra note 99, at 113.
117 Cavell’s focus on “comedies of remarriage” elaborates how these relationships can be recovered. See Stanley Cavell, Pursuits of Happiness: The Hollywood Comedy of Remarriage 189–228 (1981) [hereinafter Cavell, Pursuits of Happiness] (discussing the film Adam’s Rib).
118 Cavell, The Claim of Reason, supra note 95, at 23.
119 That is, “conversation” in the fullest sense of that term, in which people not only talk, but listen and respond.
120 The long history of racial discrimination has severely disadvantaged African Americans to the benefit of white Americans, as argued by the NAACP in its brief in Grutter v. Bollinger. See Brief for the NAACP Legal Defense and Education Fund, Inc. at 21-22, Grutter v. Bollinger, 123 S. Ct. 2325 (2003) (No. 02–214). Reparations seeks to build upon the types of arguments advanced by the NAACP by identifying specific instances in which discrimination harmed specific individuals, and by forcing America to confront the reality of discrimination and the millions of lives it has affected.
121 See generally Cavell, Pursuits of Happiness, supra note 117 (discussing seven films about the “comedy of remarriage”).
122 See William Michael Treanor, Learning from Lincoln, 65 Fordham L. Rev. 1781, 1781–86 (1997) (discussing the relation of slavery and nation in Lincoln’s interpretations of the United States Constitution); see also Lois J. Einhorn, Abraham Lincoln the Orator 151–66 (Address at Cooper Institute, New York, 1860), 169–76 (First Inaugural Address, 1861), 179–80 (Second Inaugural Address, 1865) (1992). In all these speeches, Lincoln is keenly aware of the extent to which toleration of slavery and the survival of the Union are intermingled.
123 The phrase “united we stand” has assumed particular significance in the months after the September 11, 2001 attacks on New York and Washington, D.C. See Susan Sontag, Real Battles and Empty Metaphors, N.Y. Times, Sept. 10, 2002, at A25.
124 See, e.g., Antonin Scalia, The Disease as Cure, in 2 Affirmative Action & the Constitution 83, 88 (Gabriel Chin ed., 1998) (emphasizing that early ethnic white immigrants, including his father, suffered discrimination but also conceding that some of these immigrants practiced, and indeed, benefited from discrimination).
125 This is certainly what Horowitz takes reparations to claim. See Horowitz, supra note 3, ¶ 2. It is also reminiscent of the “They Owe Us” rallying cry of certain reparations activists. See Jenkins & Harris, supra note 2, at C1.
126 Henry David Thoreau, Civil Disobedience, in Walden & Civil Disobedience 16, 23 (Paul Lauter ed., 2000).
127 See generally Stanley Cavell, The Senses of Walden: An Expanded Edition (1992) (providing compelling insight into Thoreau’s Walden).
128 See Robinson, supra note 6, at 3–6; see also Ogletree, Repairing the Past, supra note 41, at 282–83 (citing Robinson).
129 Martin Luther King, Jr., Facing the Challenge of a New Age, in I Have a Dream: Writings and Speeches That Changed the World 14, 22 (James Melvin Washington ed., 1992); see also Ogletree, Repairing the Past, supra note 41, at 283–84 (discussing Dr. King’s notion of redemption). James Baldwin also employed the notion of a redemptive remaking of America, counseling his nephew, James:
[T]hese [white] men are your brothers—-your lost, younger brothers. And if the word integration means anything, this is what it means: that we, with love, shall force our brothers to see themselves as they are, to cease fleeing from reality and begin to change it . . . . [W]e can make America what America must become.
James Baldwin, My Dungeon Shook: Letter to My Nephew on the One Hundredth Anniversary of the Emancipation, in The Fire Next Time 15, 23–24 (1963).
130 This idea of redemption is intimately related to King’s idea of a “beloved community,” by which he meant “the reconstruction of a social reality based on a radically different assessment of human potential.” Anthony E. Cook, Beyond Critical Legal Studies: The Reconstructive Theology of Dr. Martin Luther King, Jr., 103 Harv. L. Rev. 985, 988, 1038–41 (1990). The socially inclusive nature of this redemptive enterprise can be seen as early as King’s leadership during the Montgomery Bus Boycott of 1955–56. Randall Kennedy suggests that King “emphatically portrayed the boycott as a more ambitious and inclusive undertaking [than an expression of African-American solidarity and pride]. ‘We are not struggling merely for the rights of Negroes,’ he declared one evening at a MIA prayer meeting. ‘We are determined to make America a better place for all people.’” Randall Kennedy, Martin Luther King’s Constitution: A Legal History of the Montgomery Bus Boycott, 98 Yale L.J. 999, 1024 (1989) (citation omitted).
131 See, e.g., Randall L. Kennedy, McClesky v. Kemp: Race, Capital Punishment, and the Supreme Court, 101 Harv. L. Rev. 1388, 1417 (1988) (discussing the Supreme Court’s “racially selective patterns of emotional response”). Professor Ogletree has elaborated on the significance of these emotional responses for reparations in two recent articles. See Ogletree, The Current Reparations Debate, supra note 72, at 1057; Ogletree, Repairing the Past, supra note 41, at 279, 281–85.
132 Lincoln was certainly far from endorsing the social equality of African Americans before the outbreak of the Civil War. By 1862, Lincoln still officially entertained the idea of relocating freed African Americans to Central America, at least as a means of giving them the social equality he believed they could not attain in America. See Abraham Lincoln, Address to a Deputation of Colored Men (Aug. 14, 1862), in Classical Black Nationalism: From the American Revolution to Marcus Garvey 209, 210–11, 212 (Wilson Jeremiah Moses ed., 1996). Moreover, Congress had appropriated $600,000 for that purpose. Id. at 209.
133 See Treanor, supra note 122, at 1782–84.
134 See id. at 1784–85. Lincoln’s reference to people, rather than citizens, reflects this inclusiveness, neatly sidestepping (and thereby rendering irrelevant) the central reason for claiming that slaves have no rights, articulated in Dred Scott v. Sandford, 60 U.S. 691, 19 How. 393 (1856).
135 Einhorn, supra note 122, at 177–78 (Gettysburg Address, 1862).
136 Treanor, supra note 122, at 1784.
137 Einhorn, supra note 122, at 180 (Second Inaugural Address, 1865). Lincoln’s judgment that the Civil War could be regarded as divine retribution for the national sin of slavery is famously expressed in that speech:
[If] all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, . . . so still must it be said the judgments of the Lord are true and righteous altogether.
138 Malcolm X, The Ballot or the Bullet, Address Before the Cory Methodist Church (Apr. 3, 1964), in Malcolm X: Selected Speeches and Statements 26 (George Breitman ed., 1965).
139 See Malcom X, America’s Gravest Crisis Since the Civil War, in Malcolm X: The Last Speeches 59, 62–63 (Bruce Perry ed., 1989).
140 It is clear that Malcolm X thought that second-class citizenship undermined African Americans’ humanity. I would suggest that Malcolm X’s description of whites as “devils” also expressed the inherent inhumanity of those who perpetuated the systematic exclusion of African Americans either actively or by acquiescence. This is certainly James Baldwin’s reading of that theology: “[O]ne did not need to prove to a Harlem audience that all white men were devils. They were merely glad to have, at last, divine corroboration of their experience, to hear . . . that they had been lied to for all these years and generations.” James Baldwin, Down at the Cross: Letter from a Region in My Mind, in The Fire Next Time 25, 64 (1963).
141 This suggestion was made to me by Professor Kenneth Mack of Harvard Law School. It comports with Professor Hylton’s argument that litigation is ineffective to promote welfare claims. See Hylton, supra note 29, at 32–36.
142 Glenn Loury, Speech at Harvard Law School Saturday School (Nov. 6, 2002) (Harvard Video Archive) (speaking about his book: The Anatomy of Racial Inequality), available at http://www.law.harvard.edu/students/saturday-school/video_archive.shtml.