* ( 2004, Alfreda Robinson, Associate Dean and Associate Director of the Litigation and Dispute Resolution Program, The George Washington University Law School. B.A., The University of Chicago, 1973; M.A., The University of Chicago, 1976; J.D., The George Washington University Law School, 1978.
I am enormously grateful to Dean Michael K. Young, The George Washington University, and The Sloan Program for the Study of Business in Society for exceedingly generous institutional support. I am indebted immeasurably to Boston College Law School (March 2003), Critical Race Theory Workshop (Am. U. 2003), and Eighth Annual LatCrit Conference (Cleveland 2003) for the opportunity to present earlier versions of this work. Finally, I am incalculably indebted to young scholars Monise A. Stephenson (J.D. ’04, G.W.U.) and Young Cho (J.D. ’04, G.W.U.) for their outstanding research, editorial, and technical assistance.
1 Fredrick Douglass, Address at Rochester’s Independence Day (1852), in John Hope Franklin & Alfred A. Moss, Jr., From Slavery to Freedom: A History of African Americans 202 (8th ed. 2000).
2 See Eric K. Yamamoto, Racial Reparations: Japanese American Redress and African American Claims, 19 B.C. Third World L.J. 477, 502 (1998) (stating support for reparations and referring to the compelling arguments for reparations based on economic and psychological harms of slavery, Jim Crow violence and continuing institutional discrimination); Charles J. Ogletree, Jr., Litigating the Legacy of Slavery, N.Y. Times, Mar. 31, 2002, § 4, at 9 (discussing litigation targeting the government, corporations, and private institutions as a reparations strategy); Ronald Roach, Moving Toward Reparations, Black Issues in Higher Educ., Nov. 8, 2001, at 20, 20 (discussing how contemporary African-American intellectuals are championing the present movement for reparations). See generally Randall Robinson, The Debt: What America Owes to Blacks (2000); When Sorry Isn’t Enough: The Controversy over Apologies and Reparations for Human Injustice (Roy L. Brooks ed., 1999) [hereinafter When Sorry Isn’t Enough].
3 See, e.g., Alfreda Robinson, Corporate Social Responsibility and African American Reparations: Jubilee, 55 Rutgers L. Rev. 309 (2003); see also Plaintiffs’ First Amended Complaint, Alexander v. Governor of Oklahoma (N.D. Okla. filed Feb. 28, 2003) (No. 03–CV–133); Plaintiffs’ Complaint and Jury Trial Demand, Farmer-Paellmann v. FleetBoston Fin. Corp. (E.D.N.Y. filed Mar. 26, 2002) (No. 02–CV–1862).
4 Robinson, supra note 3, at 364–65 (describing some of the reasons given for opposing reparations); see Jeff Jacoby, The Case for Reparations to Blacks Is Profound, but It Is Wrong, Boston Globe, Mar. 6, 2000, at A13 (presenting public policy arguments in opposition to African-American reparations); Glenn C. Loury, Little to Gain, Much to Lose, Black Issues in Higher Educ., Nov. 8, 2001, back cover (arguing against reparations); see also David Horowitz, Uncivil Wars: The Controversy over Reparations for Slavery (2002) (describing reactions to his views against reparations).
5 See Robert Westley, Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations?, 19 B.C. Third World L.J. 429, 436 (1998). Professor Westley contends that the discourse alone will have a positive and liberating affect on American society, even if reparations do not succeed. Id.
6 The United States was born out of conflict and has survived conflict. It came into existence because the American colonies declared their independence from Great Britain. America has survived the Civil War, the Viet Nam protests, the modern Civil Rights protests, white supremacy resistance, and the Watergate scandal. See generally Africana: The Encyclopedia of the African and African American Experience 1099 (Kwame Anthony Appiah & Henry Louis Gates, Jr. eds., 1999) [hereinafter Africana] (discussing the Civil Rights protests); The Columbia History of the World 753–63, 1130–32 (John A. Garraty & Peter Gay eds., 1981) (discussing the American Revolution and the Viet Nam War); Franklin & Moss, supra note 1, at 286–91 (discussing resistance to white supremacy); David McCullough, John Adams 17–29, 167–285 (2001) (discussing the colonies’ fight for independence from England).
7 See, e.g., Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (2000) (discussing restitution remedies to compensate victims or their descendants for acts of inhumanity); Boris I. Bittker, The Case for Black Reparations (2003) (setting forth the legal arguments for and against African-American reparations); Alfred L. Brophy, Some Conceptual and Legal Problems in Reparations for Slavery, 58 N.Y.U. Ann. Surv. Am. L. 497 (2003) (discussing conceptual problems, constitutionality of reparations, and appropriate remedies when victims are no longer alive); W. Burlette Carter, True Reparations, 68 Geo. Wash. L. Rev. 1021 (2000) (arguing for divestiture instead of reparations); Tuneen E. Chisolm, Comment, Sweep Around Your Own Front Door: Examining the Argument for Legislative African American Reparations, 147 U. Pa. L. Rev. 677 (1999) (arguing that African-American reparations is a prerequisite to improved race relations).
8 See, e.g., Brown Bros.: Loans Gave Planters Cash to Buy Slaves, USA Today, Feb. 21, 2002, at 9A; James Cox, Aetna, CSX, FleetBoston Face Slave Reparations Lawsuit, USA Today, Mar. 25, 2002, at 1B [hereinafter Cox, Aetna]; FleetBoston: Traced to Slave-Trading Merchant, USA Today, Feb. 21, 2002, at 9A; Lehman Bros.: 1 Brother Owned 7 Slaves in 1860, USA Today, Feb. 21, 2002, at 9A; Frank J. Murray, 3 Large Companies Cited for Slavery Reparations, Wash. Times, Mar. 27, 2002, at A1; Several Media Companies Own Newspapers That Were Essential to Slave Economy, USA Today, Feb. 21, 2002, at 9A.
9 See, e.g., Plaintiffs’ First Amended Complaint, Alexander (No. 03–CV–133); Plaintiffs’ Complaint and Jury Trial Demand, Farmer-Paellmann (No. 02–CV–1862).
10 There are few “middle-of-the-road” viewpoints on the issue of African-American reparations; Americans hold strong opinions on the matter. See, e.g., Kevin Hopkins, Forgive U.S. Our Debts? Righting the Wrongs of Slavery, 89 Geo. L.J. 2531, 2537 (2001) (addressing the issue of white backlash and the reparations debate, Professor Hopkins writes of a disturbing e-mail he received that was entitled: “You forgot to credit us white folks for our downpayment on reparations”).
11 Robinson, supra note 3, at 312.
12 Id. at 325. See generally Barkan, supra note 7; When Sorry Isn’t Enough, supra note 2; Maria Ellinikos, American MNCs Continue to Profit from the Use of Forced and Slave Labor Begging the Question: Should America Take a Cue from Germany?, 35 Colum. J.L. & Soc. Probs. 1 (2001).
13 See, e.g., Cornell West, Race Matters (2d ed. 2001).
14 Robinson, supra note 3, at 314 (quoting Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1331 (1988)).
15 See generally William Julius Wilson, The Declining Significance of Race (2d ed. 1978).
16 For example, within three hours of the issuance of the California Department of Insurance’s statutorily mandated report (Slavery Era Insurance Registry) “there were more than 4,400 downloads of the list of slaveholder names, and more than 4,200 downloads of the names of slaves.” Sarah Lubman, State Releases Names of Slaves Who Were Insured, Mercury News (San Jose), May 1, 2002, at 1A; see also Slavery Era Insurance Policies Act, Cal. Ins. Code §§ 13810–13813 (West Supp. 2003).
17 For example, one sixty-eight year old African American, Harold C. Johnson, is reportedly paying close attention to the national reparations effort. He believes that African Americans are just starting to recognize slavery’s economic impact: “There’s a lot of interest, because people of darker visibility are realizing what their plight is . . . . A lot of our problems were because we didn’t have finances.” Lubman, supra note 16, at 1A.
18 See Hopkins, supra note 10, at 2537; James Cox, Reparations Gain Legal, Academic Interest, USA Today, Mar. 25, 2002, at 2B [hereinafter Cox, Reparations]. Boston University economist Glenn Loury opposes reparations, saying that reparations “won’t solve the problems of the inner cities and will create a backlash against blacks in a rapidly changing nation. ‘Asians, South Asians, people from Latin America—this country is on the move . . . . It’s being remade. It’s not black and white anymore.’” Lubman, supra note 16, at 1A.
19 The issue of reparations for slaves was debated immediately after the Emancipation Proclamation and the Civil War. The case for African-American reparations has been advanced since January 16, 1865, when Civil War Major-General W. Tecumseh Sherman issued Special Field Order No. 15, reserving certain southern land for black settlements and granting to each family of freed slaves “Forty Acres and a Mule.” Special Field Order No. 15: “Forty Acres and a Mule,” reprinted in When Sorry Isn’t Enough, supra note 2, at 365–66. Other illustrations exist in the archives of the Ohio Historical Society. The archives contain copies of the Cleveland Gazette, a newspaper documenting the African-American experience in Ohio from 1850–1920. In an article dated August 29, 1891, the periodical dismisses the likelihood and significance of a proposed pension for ex-slaves and states: “This country will never pension ex-slaves. It would be dealing out justice with a more liberal hand than it is capable of—when [sic] the Afro-American is concerned.” No Pension for Ex-Slaves, Cleveland Gazette, Aug. 29, 1891, at http://dbs.ohiohistory.org/africanam/ page1.cfm?ItemID=17192 (last visited Oct. 22, 2003). On the same date, the paper included a story about Frederick Douglass’s endorsement of such a bill and the allocation of $400 million in reparations by the government. Pension to Ex-Slaves, Cleveland Gazette, Aug. 29, 1891, at http://dbs.ohiohistory.org/africanam/page1.cfm?ItemID=17196 (last visited Oct. 22, 2003). On February 14, 1903, the periodical carried a story entitled Slave Pension Bill, which chides Senator Mark Hanna for introducing the doomed pension legislation. Slave Pension Bill, Cleveland Gazette, Feb. 14, 1903, at http://dbs.ohiohistory.org /africanam/page1.cfm?ItemID=19855 (last visited Oct. 22, 2003). Finally, an article dated March 3, 1903, discusses Senator Hanna’s and Senator Thurston’s reluctant introduction of legislation in favor of pensions for former slaves and the unlikelihood of its passage. The Ex-Slave Pension Bill, Cleveland Gazette, Mar. 3, 1903, at http://dbs.ohiohistory.org/ africanam/page1.cfm?ItemID=19876 (last visited Oct. 22, 2003).
20 See 2 America Becoming: Racial Trends and Their Consequences 52–251 (Neil J. Smelser et al. eds., 2001) [hereinafter America Becoming]; Chuck Collins & Felice Yeskel, Economic Apartheid in America 43–68 (2000); Melvin L. Oliver & Thomas M. Shapiro, Black Wealth/White Wealth: A New Perspective on Racial Inequality 48 (1995). Although 69% of African Americans own stock, as compared to 80% of whites, only about 10% to 15% of African Americans control 70% to 80% of black wealth. Getting the Scoop on Investing, Black Enterprise, Apr. 2002, at 80, 84.
21 Cox, Reparations, supra note 18, at 2B (quoting activist Jesse Jackson); see also Ogletree, supra note 2, at 9.
22 See Plaintiffs’ First Amended Complaint ¶ 2, Alexander (No. 03–CV–133).
23 Robinson, supra note 3, at 327 n.69.
24 Plaintiffs’ First Amended Complaint ¶¶ 519–564, Alexander (No. 03–CV–133).
25 Farmer-Paellmann v. FleetBoston Fin. Corp., No. 02–CV–1862 (E.D.N.Y. filed Mar. 26, 2002).
26 Robinson, supra note 3, at 361; K. Terrell Reed, Sins of the Past, Black Enterprise, June 2002, at 35.
27 See Plaintiffs’ Complaint and Jury Trial Demand ¶¶ 1–20, 58–61, Farmer-Paellmann (No. 02–CV–1862). As I argue in Corporate Social Responsibility and African American Reparations: Jubilee, the claims may be based on events from slavery to the present. See Robinson, supra note 3, at 358–61.
28 Plaintiffs’ Complaint and Jury Trial Demand ¶¶ 50–70, Farmer-Paellmann (No. 02–CV–1862).
29 See Robinson, supra note 3, at 361; Cox, Aetna, supra note 8, at 1B; Cox, Reparations, supra note 18, at 2B; Ogletree, supra note 2, at 9.
30 Plaintiffs’ Complaint and Jury Trial Demand ¶ 29, Farmer-Paellmann (No. 02–CV–1862).
31 Id.
32 Id. ¶ 30.
33 Id. ¶ 31.
34 See id. ¶¶ 1–19.
35 See 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, 901 (1993).
36 Deborah Kong, Calls for Reparations Brew Revolt of Blacks, Wash. Times, May 16, 2002, at A1.
37 See Franklin & Moss, supra note 1, at 139–43, 150–51.
38 Plaintiffs’ First Amended Complaint ¶ 2, Alexander (No. 03–CV–133); Plaintiffs’ Complaint and Jury Trial Demand ¶¶ 13–17, Farmer-Paellmann (No. 02–CV–1862).
39 Robinson, supra note 2, at 8–9.
40 Jacoby, supra note 4, at A13.
41 See id.; Loury, supra note 4.
42 See Loury, supra note 4.
43 Jacoby, supra note 4, at A13.
44 See Brophy, supra note 7, at 497.
45 See The Declaration of Independence para. 2 (U.S. 1776) (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”); U.S. Const. amend. XIV, § 1 (“No state shall . . . deny to any person . . . the equal protection of the laws.”); Franklin & Moss, supra note 1, at 686 (on September 22, 1862, President Lincoln issued a proclamation stating “[t]hat on the 1st day of January, A.D. 1863, all person held as slaves . . . shall be then, thenceforward, and forever free.”).
46 See Africana, supra note 6, at 1099 (quoting Martin Luther King, Jr., Speech at the March on Washington (Aug. 28, 1963)).
47 See generally West, supra note 13.
48 Grutter v. Bollinger, 123 S. Ct. 2325, 2341, 2347 (2003).
49 Robinson, supra note 3, at 313; see also West, supra note 1313.
50 Lani Guinier, The Pigment Perplex, American Lawyer, Aug. 2002, at 61.
51 Robinson, supra note 3, at 314.
52 Id. at 318.
53 See, e.g., Derrick A. Bell, Jr., Racial Realism, in Critical Race Theory: The Key Writings that Formed the Movement 302 (Kimberlé Crenshaw et al. eds., 1995) [hereinafter Critical Race Theory: The Key Writings].
54 Andrew Hacker, Two Nations: Black and White, Separate, Hostile, Unequal 17 (1992). Professor Delgado and Professor Stefancic provide this explanation of the critical race theorist view on the role of race in America:
First . . . racism is ordinary, not aberrational—“normal science,” the usual way society does business, the common, everyday experience of most people of color in this country. Second, most would agree that our system of white-over-color ascendancy serves important purposes, both psychic and material. The first feature, ordinariness, means that racism is difficult to cure or address . . . . The second feature, sometimes called “interest convergence” or material determinism, adds a further dimension. Because racism advances the interests of both white elites (materially) and working-class people (psychically), large segments of society have little incentive to eradicate it . . . . A third theme of critical race theory, the “social construction” thesis, holds that race and races are products of social thought and relations. Not objective, inherent, or fixed, they correspond to no biological or genetic reality; rather, races are categories that society invents, manipulates, or retires when convenient.
Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction 7 (2001).
55 Robinson, supra note 3, at 319.
56 Id. at 316. See generally America Becoming, supra note 20; Collins & Yeskel, supra note 2020, at 43–68.
57 Robinson, supra note 3, at 316; see also Dorothy A. Brown et al., Social Security Reform: Risks, Returns, and Race, 9 Cornell J.L. & Pub. Pol’y 633, 637 (2000) (“blacks have shorter life expectancies than whites”).
58 Robinson, supra note 3, at 316; see also Hacker, supra note 54, at 218 (“It is white America that has made being black so disconsolate an estate. Legal slavery may be in the past, but segregation and subordination have been allowed to persist. Even today, America imposes a stigma on every black child at birth.”); e. christi cunningham, The “Racing” Cause of Action and the Identity Formerly Known as Race: The Road to Tamazunchale, 30 Rutgers L.J. 707, 716 (1999) (urging people of color to consider “race as a cause of action while re-considering race as a foundation for identity”).
59 Guinier, supra note 50, at 61.
60 Robinson, supra note 3, at 365.
61 See, e.g., Horowitz, supra note 4, at 13–14, 107.
62 See David Horowitz, Ten Reason Why Reparations for Blacks Is a Bad Idea for Blacks—and Racist Too, FrontPage Mag., Jan. 3, 2001, at http://www.freerepublic.com/frum/a3a54b 37c6b16.htm (last visited Sept. 15, 2003).
63 For example, on December 11, 1964, Martin Luther King, Jr. stated in his Nobel Peace Prize acceptance that: “Man must evolve for all human conflict a method which rejects revenge, aggression and retaliation. The foundation of such a method is love.” Simpson’s Contemporary Quotations: The Most Notable Quotes from 1950 to the Present 375 (James B. Simpson ed., 1997).
64 Radical leaders like Malcolm X believed that African Americans had to be more aggressive in their ongoing fight for equality. “We no longer endorse patience and turning-the-other-cheek. We assert the right of self-defense by whatever means necessary, and reserve the right of maximum retaliation against our racist oppressors . . . .” Malcolm X Speaks: Selected Speeches and Statements 76–77 (George Breitman ed., 2d ed. 1989).
65 Encyclopedia of Black America 790 (W. Augustus Low & Virgil A. Clift eds., DaCapo Press 1984) (1981) [hereinafter Encyclopedia] (“By the 1830s most abolitionists had become pessimistic about the slow pace of the gradualist approach: the slave trade laws were not enforced; . . . free blacks were still denied equal rights in the North as well as in the South; efforts to boycott slave-produced goods had not gained sufficient support to be effective . . . .”).
66 Freed African Americans, such as David Walker, believed that in order to eradicate slavery, African Americans must take a more aggressive approach:
Are we men!! I ask you . . . are we MEN? Did our creator make us to be slaves to dust and ashes like ourselves? Are they not dying worms as well as we? . . . How we could be so submissive to a gang of men, whom we cannot tell whether they are as good as ourselves or not, I never conceive . . . . with our blood and tears. The greatest riches in all America have arisen from our blood and tears: And they will drive us from our property and homes, which we have earned with our blood.
Franklin & Moss, supra note 1, at 194.
67 In 1865, two years after the Emancipation Proclamation, “A black convention in Nashville protested seating the Tennessee delegation to Congress because the legislature had not passed just laws for African Americans. It also demanded that Congress recognize black citizenship.” Id. at 254.
68 The rise of the age of militant abolitionists demonstrates this point. See id. at 193–204.
69 Southerners had great difficulty adjusting to the idea of emancipation for slaves:
Soon after the War of 1812 sectionalism was apparent as the North swung to manufacturing and the South, still wedded to agriculture, came to see clearly that the interests of the section were becoming antagonistic . . . . In the South . . . the plantation system tended to preserve frontier independence: there was little communal life, only slight civic responsibility, and little interest in various programs for the improvement of humanity.
Id. at 193.
70 See Encyclopedia, supra note 65, at 758.
71 Even freed slaves continued to face restrictions. “[Slaves] could neither testify in court against a white person, nor purchase firearms or liquor without the recommendation of a ‘reputable’ white person . . . one state (Georgia) forbade free blacks to own property.” Id. at 759.
72 See Africana, supra note 6, at 1734 (“As the war dragged on, Northern war aims gradually shifted from preserving the Union to abolishing slavery and remaking the Union.”).
73 See Encyclopedia, supra note 65, at 789–90; Franklin & Moss, supra note 1, at 193–204.
74 John Brown, a radical abolitionist, was hanged on December 2, 1859 for his involvement in a raid of a federal arsenal at Harpers Ferry, Virginia. Franklin & Moss, supra note 1, at 216–18. Following his trial and conviction, John Brown told a New York Herald reporter:
I pity the poor in bondage that have none to help them; that is why I am here; not to gratify any personal animosity, revenge or vindictive spirit. It is my sympathy with the oppressed and wronged, that are as good as you and as precious in the sight of God . . . . Now, if it is deemed necessary that I should forfeit my life for the furtherance of the ends of justice, and mingle my blood further with the blood of my children and with the blood of millions in this slave country whose rights are disregarded by wicked, cruel, and unjust enactments, I say, let it be done.
Id. at 218.
75 Encyclopedia, supra note 65, at 789.
76 See id. at 839–40. See generally id. at 319–24 (describing Frederick Douglass’s life and accomplishments); id. at 839–45 (providing an overview of Booker T. Washington’s contributions to the movement).
77 Woodward describes the essence of the Jim Crow era in America:
The public symbols and constant reminders of [the African Americans’] inferior position were the segregation statutes, or ‘Jim Crow’ laws. They constituted the most elaborate and formal expression of sovereign white opinion upon the subject . . . . [The] enforcement [of] the segregation codes [was] comparable with the black codes of the old regime . . . . That code lent the sanction of law to a racial ostracism that extended to churches and schools, to housing and jobs, to eating and drinking. Whether by law or by custom, that ostracism extended to virtually all forms of public transportation, to sports and recreations, to hospitals, orphanages, prisons, and asylums, and ultimately to funeral homes, morgues, and cemeteries.
C. Vann Woodward, The Strange Career of Jim Crow 7 (Commemorative ed. 2002).
78 See Franklin & Moss, supra note 1, at 465, 550; supra notes 63, 64 (discussing Martin Luther King’s and Malcolm X’s views regarding various approaches to Jim Crow opposition). During the Jim Crow Era, Elijah Muhammad led African-American Muslims in “renounc[ing] their faith in the ultimate solution of the race problem in the United States, reject[ing] all names that might imply a connection with white America, and [seeking] complete separation from the white community.” Franklin & Moss, supra note 1, at 465. A group deemed radical during their time was the Black Panthers. “[Y]oung California militants led by Huey P. Newton and Bobby Seale organized the Black Panther Party for Self-Defense, and Eldridge Cleaver, its most articulate spokesman, declared that the choice before the country was ‘total liberty for black people or total destruction for America.’” Id. at 550.
79 Though many agreed with the peaceful approach taken by Martin Luther King, Jr., he also “had been criticized by militant, action-oriented blacks who insisted that whites would not respond to black demands on the basis of Christian charity, good will, or even peaceful demonstrations.” Id. at 550.
80 More aggressive groups such as the Black Panthers “called for full employment, decent housing, black control of the black community, and an end to every form of repression and brutality . . . . Several [members] were sent to prison, charged with murder, attempted murder, and lesser crimes. The [FBI] declared the Black Panthers to be dangerous and subversive.” Id. at 553.
81 See Keith N. Hylton, A Framework for Reparations Claims, 24 B.C. Third World L.J. 31, 34 tbl.1 (2004).
82 Professor Westley suggests that even the discussion of the subject has the potential to break down racial barriers. See Westley, supra note 5, at 432–37.
83 The first slaves arrived in the colonies in the 1600s. See Franklin & Moss, supra note 1, at 37–44. Of course, slavery did not end officially until the Emancipation Proclamation in 1863. Id. at 231.
84 For an article discussing the tobacco litigation, see Frank J. Murray, Court Strips FDA of Cigarette Control: Ruling Gives Power Back to Congress, Wash. Times, Mar. 22, 2000, at A1.
85 See Westley, supra note 5, at 436.