BOSTON COLLEGE
Boston College Third World Law Journal

Student
Publications

Volume 24 2004 Number 1


In Memory of Arthur C. Harris
October 14, 1976 November 23, 2003

[Pages 1-12]
THE SPIRIT OF REPARATION
David Hall*

Abstract:  This Article, the author of which presented the opening and closing remarks and served as moderator for the Boston College Third World Law Journal  ’s reparations symposium, explores reparations for slavery from a spiritual perspective. It briefly traces the history of reparations for African Americans, beginning with General William Tecumseh Sherman’s “Forty Acres and a Mule” field order in 1865 and moving through Reconstruction and Jim Crow. The Article next examines the connection between the crimes and injustices of slavery and the current plight of African Americans, arguing that monetary reparations are a viable solution and should be targeted toward Blacks who have failed to succeed economically. The author maintains, however, that the primary purpose of monetary reparations is spiritual rather than practical; America must make a tangible sacrifice in order to heal successfully the nation’s deep wounds of shame, anger, and hurt from the legacy of slavery. The Article concludes with a call for the current generation to address America’s unsettled and unreconciled history through reparations.

[Pages 13-30]
TULSA REPARATIONS: THE SURVIVORS' STORY
Charles J. Ogletree, Jr.*

Abstract:  This Article explores the ability of reparations litigation to transform the American debate about race by promoting “interest convergence” between reparations advocates and the majority population. As Professor Derrick Bell has argued, only when the interests of the majority converge with those of the minority will the minority achieve its goals. Reparations lawsuits—especially those framed as traditional civil rights claims, as in the ongoing litigation seeking reparations for the 1921 Tulsa Race Riot—can begin to promote the convergence of interests between reparationists and the reluctant majority population by forcing the majority population to confront past and present injustices against African Americans. The Article concludes that litigative reparations are a promising first step toward insuring justice for those who were sacrificed during slavery and Jim Crow oppression.

[Pages 31-44]
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.

[Pages 45-80]
RECONCEIVING REPARATIONS: MULTIPLE STRATEGIES IN THE REPARATIONS DEBATE
Eric J. Miller*

Abstract:  Much of the current debate over African-American reparations is characterized by a posture of confrontation and demand, and is exemplified in the law by seeking redress using the doctrines of tort and unjust enrichment. This confrontational posture presents a variety of legal, political, and ethical problems for reparations advocates, and has alienated potential allies from the reparations movement. This Article examines and exposes the confrontation model’s shortcomings, proposing as an alternative a “conversational” model for reparations debate and advocacy. The conversational framework is not only a superior litigation strategy that more closely approximates traditional civil rights litigation, it also embraces the complexity of the current debate on race, premitting the nation to engage in a more inclusive discussion of the future of race in America.

[Pages 81-138]
REPARATIONS TALK: REPARATIONS FOR SLAVERY AND THE TORT LAW ANALOGY
Alfred L. Brophy*

Abstract:  This Article examines the current landscape of reparations for slavery, identifying the contours of reparations lawsuits and exploring the ability of tort law to help apportion moral culpability in the reparations context. It first examines several possibilities for lawsuits for Jim Crow, discussing constitutional requirements and identifying specific incidents—such as lynchings and Jim Crow legislation—that might be appropriate subjects of litigation. The Article then assesses the viability of obtaining reparations through tort and unjust enrichment claims by addressing issues such as causation and damages, exploring the obstacles presented by American law’s liberalism, and identifying the various goals of reparations advocates. Finally, the Article moves beyond litigation to contemplate the ability of tort law to serve as a vehicle for framing discussions about moral culpability. It concludes with an optimistic assessment of the role of tort law in the reparations movement.

[Pages 139-156]
TROUBLING "SETTLED" WATERS: THE OPPORTUNITY AND PERIL OF AFRICAN-AMERICAN REPARATIONS
Alfreda Robinson*

Abstract:  This Article explores the theme of “troubling settled waters,” which represents the impact of African-American reparations on the current landscape of race relations in America. The Article outlines the current and historical debate over reparations, addressing the arguments of opponents who contend that reparations dialogue and action wastes intellectual and monetary resources, unnecessarily resurrects painful memories, and creates racial division. It also takes note of contemporary reparations efforts in the courts, as well as the theories and bases for this litigation. The Article concludes that, given the continuing pervasiveness of race and race issues in modern America, reparations are a welcome and important opportunity for achieving civil rights goals.

[Pages 157-176]
SOME THOUGHTS ON THE LAW AND POLITICS OF REPARATIONS FOR SLAVERY
Calvin Massey*

Abstract:  This Article examines several legal and political issues raised by reparations for slavery and offers a skeptical appraisal of both the wisdom of reparations and their potential for success. There are a number of legal obstacles to courtroom-based reparations, including the difficulty of proving duty, causation, and damages; technical barriers such as limitations statutes and laches; and constitutional problems such as standing and courts’ strict scrutiny of racial classifications. In the political realm, the difficulty of identifying those who should pay and those who should receive reparations, and the impact of a successful reparations scheme on race relations in America, should counsel against the wisdom of reparations for slavery.

[Pages 177-186]
REPARATIONS AND EQUAL OPPORTUNITY
David Lyons*

Abstract:  This paper offers a sympathetic interpretation of reparations claims made on behalf of African Americans and suggests how they could properly be honored. It reviews the federal government's role in supporting racial subordination and its continuing failure to address the inequitable consequences, which public policy now largely ignores. It sketches a national rectification project, comprising a comprehensive set of public programs that would attack the persisting legacy of slavery and Jim Crow. The programs can be justified by the government's duty to insure equal opportunity for our society's children and, most urgently, by corrective justice, because the inequities are attributable to the government's own policies.

[Pages 187-222]
THE "MEXICO CITY POLICY" AND ITS EFFECTS ON HIV/AIDS SERVICES IN SUB-SAHARAN AFRICA
Allegra A. Jones*

Abstract:  The United States recently joined the global effort to combat the HIV/AIDS pandemic in sub-Saharan Africa and other developing regions when it committed more than $15 billion to international HIV/AIDS initiatives. In the spirit of strengthening U.S. participation in this effort, this Note encourages U.S. leaders to reevaluate the Mexico City Policy, a foreign policy that indirectly affects numerous people living with HIV/AIDS. Commonly known as the global gag rule, the Mexico City Policy prohibits most foreign non-governmental organizations that receive U.S. family planning funding from providing or promoting abortion services. This Note analyzes the Mexico City Policy’s impact on HIV/AIDS services provided by family planning clinics in sub-Saharan Africa, as well as the potential implications of an executive branch proposal that would expand the policy beyond family planning to HIV/AIDS assistance. This Note concludes that congressional repeal of the Mexico City Policy is the most plausible remedy.

[Pages 223-265]
A TURN FOR THE WORSE: FOREIGN RELATIONS, CORPORATE HUMAN RIGHTS ABUSE, AND THE COURTS
Michael J. O'Donnell*

Abstract:  This Note examines recent interventions in corporate human rights lawsuits by the executive branch from both legal and political perspectives. It first identifies a nascent trend in human rights litigation in U.S. courts—namely, the propensity of the Bush administration to intervene on behalf of corporate defendants accused of violating human rights in the developing world—by examining the factual and procedural history of three contemporary lawsuits. It then explores the role of the political question, act of state, and international comity doctrines in these and similar suits, and advances a method for applying all three doctrines in a “human rights-friendly” manner. Finally, the Note examines the Bush administration’s interventions from a human rights policy perspective and concludes that for political, in addition to legal reasons, the executive branch should desist from intervening on behalf of corporate defendants in human rights lawsuits.