* (c) 2004, Alfred L. Brophy, Professor of Law, University of Alabama. J.D., Columbia University; Ph.D., Harvard University. Contact author for reprint permission at abrophy@law.ua.edu or at the University of Alabama School of Law, Box 870382, Tuscaloosa, AL 35487-0382.
It was a great pleasure—and honor—to present an earlier version of these thoughts at the Boston College Third World Law Journal’s symposium at Boston College Law School, where I spent the most enjoyable (and one of the most educational) years of my life. I would like to thank Wasana Punyassena for organizing the symposium, as well as Erin Han, Joanna Bratt, Melissa Cook, Mike O’Donnell, Naomi Kaplan, and the rest of the Boston College Third World Law Journal for inviting me. The symposium reminded me of The Clash’s Joe Strummer’s statement—widely publicized at the time of his death—that “If you ain’t thinkin’ about [hu]man[s] and God and law, then you ain’t thinkin’ about nothin’.” See Jon Pareles, Joe Strummer Is Dead at 50; Political Rebel of Punk Era, N.Y. Times, Dec. 24, 2002, at B6. Reparations talk combines all three of those!
I would also like to thank Dedi Felman, John Dzienkowski, Sanford Katz, Sara Patterson, Angela Kupenda, Andrew R. Klein, David Lyons, David Bernstein, David Levine, Calvin Massey, Eric J. Miller, and David Thelen for discussing these issues with me. I also benefited greatly from the comments of participants of the University of Windsor Law School’s June 2003 roundtable on reparations.
1 With apologies to Mary Ann Glendon. See Mary Ann Glendon, Rights Talk (1991).
2 The fountainhead of serious reparations talk within the legal academy is Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323 (1987). A generation earlier, Professor Bittker took those arguments seriously with his monograph, The Case for Black Reparations. See generally Boris Bittker, The Case for Black Reparations (1973). Bittker’s book provides an important model for later reparationists; he applies well-established civil rights law as a framework for understanding the moral case for reparations. Nevertheless, the time was not then ripe for reparations talk and his ideas sat and waited to make their appearance in the next generation.
Building on Matsuda, three other articles advanced the cause in significant ways. Two were student notes. See Tuneen E. Chisholm, Comment, Sweep Around Your Own Front Door: Examining the Argument for Legislative African American Reparations, 147 U. Pa. L. Rev. 677 (1999); Rhonda V. Magee, Note, The Master’s Tools, 79 Va. L. Rev. 863 (1993). Magee has recently expanded significantly upon her earlier work. See Rhonda V. Magee Andrews, The Third Reconstruction: An Alternative to Race Consciousness and Colorblindness in Post-Slavery America, 54 Ala. L. Rev. 483 (2002). The third was Professor Westley’s brilliant statement of the case for reparations from a moral standpoint. See Robert Westley, Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations?, 19 B.C. Third World L.J. 429 (1998).
3 The second generation is perhaps best represented by Professor Yamamoto’s humane work, particularly Interracial Justice. See Eric Yamamoto, Interracial Justice (1999); see also Julie A. Su & Eric K. Yamamoto, Critical Coalitions: Theory and Praxis, in Crossroads, Directions and a New Critical Race Theory 379 (Francisco Valdes et al. eds., 2002); Eric K. Yamamoto, Conflict and Complicity: Justice Among Communities of Color, 2 Harv. Latino L. Rev. 495 (1997); Eric K. Yamamoto, Critical Race Praxis: Race Theory and Political Lawyering Practice in Post-Civil Rights America, 95 Mich. L. Rev. 821 (1997); Eric K. Yamamoto, Racial Reparations: Japanese American Redress and African American Claims, 19 B.C. Third World L.J. 477 (1998); Eric K. Yamamoto, Rethinking Alliances: Agency, Responsibility and Interracial Justice, 3 Asian Pac. Am. L.J. 33 (1995). Professor Yamamoto’s unceasing efforts to emphasize racial healing through reparations are critical, I believe, to advancing the cause of reparations.
In the wake of the Civil Liberties Act of 1988, some states began investigating their own complicity in racial crimes, such as the Rosewood riot of 1923, which destroyed a black town in central Florida. The most ambitious of the state investigations was the commission that investigated the 1921 Tulsa Race Riot. The commission was remarkably successful in recovering an understanding of the riot’s origins in the racial violence of the United States after World War I. Despite that history, however, there were no reparations paid. See generally Alfred L. Brophy, Reconstructing the Dreamland: The Tulsa Riot of 1921 (2002).
4 The growth in the public debate can be roughly gauged by a search for references to “slavery” and “reparations” in the same story in the “major papers” database of Lexis-Nexis. There were 85 stories before 1991, 83 stories in 1995, 103 in 1999, 396 in 2000, and 1117 in 2001. One suspects that the effect of September 11, 2001, is seen in a decline to 698 stories in 2002. The decline is continuing. In the first quarter of 2003, there were only 105 stories. Available at http://www.lexis.com (last visited Oct. 16, 2003).
Another indicium of the importance of reparations for slavery within the legal academy is that the nation’s finest law journals have begun to publish on the topic. In recent years the Harvard Law Review, Columbia Law Review, Texas Law Review, and Georgetown Law Journal have all published articles, essays, or comments devoted to reparations for slavery. See Alfred L. Brophy, Losing an Understanding of the Importance of Race, 80 Tex. L. Rev. 911 (2002); Kevin Hopkins, Forgive U.S. Our Debts? Righting the Wrongs of Slavery, 89 Geo. L. J. 2531 (2001); Saul Levmore, Changes, Anticipations, and Reparations, 99 Colum. L. Rev. 1657 (1999); Note, Bridging the Color Line: The Power of African-American Reparations to Redirect America’s Future, 115 Harv. L. Rev. 1689 (2002). Moreover, there are frequent, thoughtful discussions of reparations on the radio and the internet. See, e.g., Hugh LaFollett & Andrew Valls, Ideas & Issues (WETS-FM radio broadcast), available at http://www.etsu.edu/ philos/radio/valls.htm (last visited Oct. 17, 2003); Leading Scholars Discuss “Forty Acres and a Mule: The Case for Black Reparations,” at http://www.columbia.edu/cu/news/vforum/03/ struggle_black_reparations/ (Mar. 10, 2003).
5 See generally Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (2000).
6 Nontombi Tutu, Afterword of Should America Pay? Slavery and the Raging Debate over Reparations 321, 322 (Raymond A. Winbush ed., 2003).
7 See Cato v. United States, 70 F.3d 1103, 1111 (9th Cir. 1995). More recently, the United States Court of Claims entered summary judgment against plaintiffs seeking reparations for slavery based on an Equal Protection argument, who claimed that victims of slavery are entitled to share in the Civil Liberties Act of 1988, which provided compensation to Japanese Americans interned during World War II. See Obadele v. United States, 52 Fed. Cl. 432, 441, 444 (2002). Other recent cases seeking reparations for slavery have been dismissed. See Abdullah v. United States, No. 3:02–CV–1030, 2003 WL 1741922 (D. Conn. Mar. 25, 2003); Bell v. United States, No. 3:01–CV–0338–D, 2001 U.S. Dist. LEXIS 14812 (N.D. Tex. 2001) (dismissing suit for reparations for slavery and observing that without a concrete, personal injury that is not abstract and that is not fairly traceable to government, plaintiff lacks standing); Powell v. United States, No. C94–01877 CW, 1994 U.S. Dist. LEXIS 8628 (N.D. Cal. 1994); Jackson v. United States, No. C94–01494 CW, 1994 U.S. Dist. LEXIS 7872 (N.D. Cal. 1994); Lewis v. United States, No. C94–01380 CW, 1994 U.S. Dist. LEXIS 7868 (N.D. Cal. 1994). Cf. United States v. Bridges, 46 F. Supp. 2d 462, 463 (E.D. Va. 1999) (defendant charged with tax fraud for claiming non-existent reparations tax credit), aff’d, 217 F.3d 841 (4th Cir. 2000); Wilkins v. Commissioner, 120 T.C. 109 (2003) (denying tax credit for reparations for slavery).
8 See Plaintiffs’ Complaint & Jury Trial Demand, Farmer-Paellmann v. FleetBoston Fin. Corp., No. 02–CV–1862 (E.D.N.Y. filed Mar. 26, 2002). The complaint is available at http://www.nyed.uscourts.gov/02cv1862cmp.pdf and is conveniently reprinted in Should America Pay?, supra note 6, at 354–66. Farmer-Paellmann has also filed suit in California. See Hurdle v. FleetBoston, No. CGC–02–412388 (Cal. Super. Ct. filed Sept. 10, 2002). These and other cases are discussed in John S. Friedman, Corporate Bill for Slavery, Nation, Mar. 10, 2003, at 6. The cases have recently been consolidated. See In re African American Slave Descendant Litig., 231 F. Supp. 2d 1357 (J.P.M.L. 2002). There has also been a joint motion to dismiss filed by the defendants. Some judicial opinions have addressed various problems with slave reparations suits. See, e.g., Cato, 70 F.3d at 1106–11. Nevertheless, the joint motion is the most comprehensive legal response yet available to slavery reparations claims. It advances four main claims: that the plaintiffs lack standing, that the statute of limitations bars claims, that the claims are barred by the political question doctrine, and that the plaintiffs have not alleged facts sufficient to support a cause of action. Of those claims, the most damaging in my mind are the statute of limitations and lack of standing claims, which might also be considered as a common law problem—a lack of connection between those who are harmed and those who are asserting a claim. The standing problem might be cured fairly easily by identifying people who are descended from those who were employed as slaves by the defendant companies and their predecessors. There may still be problems, as the defendants argue, that descendants are not the proper claimants—that the claims must be asserted by a representative of the estate. See Memorandum in Support of Defendants’ Joint Motion to Dismiss at 6–7, In re African American Slave Descendant Litig., 231 F. Supp. 2d 1357 (N.D. Ill. 2003) (No. CV 02–7764). One suspects, however, that the intestate heirs—or testate, to the extent that there were wills—would be the appropriate representatives at this point. An obvious, enormous problem, which is not so easily handled, is the statute of limitations. I find it surprising that the motion, which was prepared by counsel from many of the nation’s very finest law firms, has such limited discussion of the equitable tolling arguments.
9 See Plaintiffs’ Second Amended Complaint, Alexander v. Oklahoma, No. 03–CV–133 (N.D. Okla. filed Apr. 29, 2003), available at http://www.tulsareparations.org/Complaint 2ndAmend.pdf (last visited Nov. 12, 2003); see also Brent Staples, Coming to Grips with the Unthinkable in Tulsa, N.Y. Times, March 16, 2003, � 4, at 12 (discussing the lawsuit and concluding, “The courts will have to decide whether or not the riot survivors have a plausible case. But in the moral sense at least, Tulsa and Oklahoma have already lost. They did so by failing to accept responsibility for one of the most blood-curdling events in American history.”). Given the amount of discussion, I have to disagree with those who maintain that reparations talk is impoverished. See, e.g., Lee A. Harris, “Reparations” as a Dirty Word: The Norm Against Slavery Reparations, 33 U. Mem. L. Rev. 409, 435 (2003) (“To say the least, the literature on slavery reparations is threadbare.”).
10 Sometimes those who contribute to the discussion of the problems with reparations also support them. See generally Alfred L. Brophy, Some Conceptual and Legal Problems with Reparations for Slavery, 58 N.Y.U. Ann. Surv. Am. L. 497 (2003) (discussing problems with theories involving lawsuits and constitutionality of legislatively granted reparations, while suggesting ways that reparations might be implemented). Alfreda Robinson, for example, has recently explored how reparations claims might work against corporations. See Alfreda Robinson, Corporate Social Responsibility and African American Reparations: Jubilee, 55 Rutgers L. Rev. 309, 358–84 (2003).
11 See, e.g., Kim Forde-Mazrui, Taking the Right Seriously: America’s Moral Responsibility for Effects of Past Racial Discrimination (2002), at http://papers.ssrn.com/sol3/delivery.cfm/ SSRN_ID311860_code020613630.pdf?abstractid’311860; Kaimipono Wenger, Slavery as a Takings Clause Violation (2003), at http://ssrn.com/abstract=420540.
12 See, e.g., Pedro A. Malavet, Reparations Theory and Postcolonial Puerto Rico: Some Preliminary Thoughts, 13 Berkeley La Raza L.J. 387, 390–92 (2002); Ediberto Roman, Reparations and the Colonial Dilemma: The Insurmountable Hurdles and Yet Transformative Benefits, 13 Berkeley La Raza L. J. 369, 371 (2002).
13 See Eric Posner & Adrian Vermeule, Reparations for Slavery and Other Historical Injustices, 103 Colum. L. Rev. 689, 722–23 (2003) (discussing the difficulty of ordering priority of claims on government’s scarce resources).
14 See Cong. Globe app., 35th Cong., 1st Sess. 68, 71 (1858) (speech of Sen. Hammond, Mar. 4, 1858); see also Ralph Ellison, Going to the Territory, in The Collected Essays of Ralph Ellison 591, 595 (John F. Callahan ed., 1995) (“Having won its victory, the North could be selective in its memory, as well as in its priorities, while leaving it to the South to struggle with the national problems which developed following the end of Reconstruction. And even the South became selective in its memory of the incidents that led to its rebellion and defeat. Of course a defenseless scapegoat was easily at hand, but my point here is that by pushing significant details of our experience into the underground of unwritten history, we not only overlook much which is positive, but we blur our conceptions of where and who we are.”); Clarence J. Munford, Race and Reparations 207–21 (1996).
15 See Munford, supra note 14, at 207–21.
16 For the requirements of reparations lawsuits, see Brophy, supra note 10, at 502–20 (discussing the need to have identifiable plaintiffs and defendants, causation, and a cause of action); infra Part II (discussing the requirements of a lawsuit for reparations for slavery).
17 City of Richmond v. J.A. Croson, Co., 488 U.S. 469, 499 (1989); see Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276–77 (1986) (“Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy. . . . [A] public employer . . . must ensure that, before it embarks on an affirmative-action program, it has convincing evidence that remedial action is warranted. That is, it must have sufficient evidence to justify the conclusion that there has been prior discrimination.”) (internal quotations omitted).
18 See, e.g., Shaw v. Hunt, 517 U.S. 899, 909–10 (1996); Adarand Constructors v. Pena, 515 U.S. 200, 220 (1995); Wygant, 476 U.S. at 274–776, 288.
19 See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 368–74 (2001).
20 Professor Fiss perceptively explored desegregation injunctions in The Civil Rights Injunction:
In contrast to damage judgments or criminal prosecutions, the injunction could more easily accommodate the group nature of the claim, it could provide the requisite specificity and continuing supervision over long periods of time, and it introduced a desired degree of softness—it has a prospective quality, and directives could easily be modified as the courts enhanced their understanding of the constitutional goal and how that goal might be achieved.
Owen M. Fiss, The Civil Rights Injunction 87 (1978). Looking now at twenty-five years of subsequent development in injunctions, we might think that injunctions are being re-formed to look more like traditional legal relief. As Professor Laycock has argued in a different context, the special nature of equity is being tamed and made to look increasingly like legal relief. See generally Douglas Laycock, The Death of the Irreparable Injury Rule (1991). Indeed, a follower of Professor Laycock might be tempted to speak in terms of the resurrection of the connection between harm and remedy! Of course, one familiar with Joseph Story’s Commentaries on Equity would not find that surprising. For, more than 150 years ago, Justice Story was already trying to make equitable relief conform to legal relief. See generally Joseph Story, Commentaries on Equity Jurisprudence as Administered, in England and America (1836). Cf. Perry Miller, The Life of the Mind in America: From the Revolution to the Civil War 121–43 (1965) (discussing the intellectual elegance of the common law and the ways that jurists, particularly Story, sought to bring rationality to it).
Similarly, when the demand was to compensate for the systematic and thorough harms of slavery, the Jim Crow era, or more subtle and recent forms of discrimination, cash payments seem particularly inadequate. The inadequacy stemmed from considerations much deeper than difficulties of measurement, for these same difficulties inhere in the reparative injunction—in identifying the victims and perpetrators of the past wrong and knowing what conduct (e.g., preferences) would constitute adequate compensation. The inadequacy stemmed from the group nature of the underlying claim and a belief that only in-kind benefits would effect a change in the status of the group.
Yet the entire process of class action lawsuits—in which the plaintiff is little more than a stand-in for an entire group of claimants—has undergone such transformation that one is tempted to believe we have returned to the world Professor Lon Fuller described in The Forms and Limits of Adjudication.
21 Grutter v. Bollinger, 123 S. Ct. 2325, 2339 (2003).
22 See id. at 2347.
23 See Missouri v. Jenkins, 515 U.S. 70, 88 (1995). Of course, Jenkins places limits on what courts can do and Grutter is dealing with what are essentially legislative and executive decisions.
24 See Brophy, supra note 10, at 525–35 (discussing the likely constitutional problems with reparations and suggesting what findings would be necessary to support them); Posner & Vermuele, supra note 13, at 711–25 (discussing the constitutional problems with reparations for slavery).
25 See Stuart Eizenstat, Racial Preferences as Slavery Reparation, L.A. Times, Mar. 31, 2003, at B11.
26 Commentors have begun to explore in some depth the problems with the lawsuit against Aetna and CSX. See, e.g., Paige A. Fogarty, Speculating a Strategy: Suing Insurance Companies to Obtain Legislative Reparations for Slavery, 9 Conn. Ins. L.J. 211, 224–41 (2002); Anthony Sebok, Prosaic Justice, Legal Aff., Sept. 10, 2002, at 51 (evaluating the efficacy of relying on property law, rather than human rights law, in slavery reparations suits). Farmer-Paellmann framed the lawsuit in a way that created problems. There is no evidence linking her to any of the behavior of any of the defendants. At the very least, one would expect that a court would demand that the plaintiffs show a connection between the people harmed by the defendants’ predecessors and themselves. In essence, one might reasonably demand that the plaintiffs show some connection between the defendants’ predecessors and their predecessors. See Fogarty, supra, at 233.
A more credible suit would have located the descendants of slaves who worked for CSX’s predecessors, or whose lives were insured by Aetna. One might, for instance, construct a claim for the descendants of the slaves who worked on Isaac Royal’s plantation in Barbados. Royal donated money made on that plantation to Harvard Law School. See Justice Joseph Story, A Discourse Pronounced at the Funeral Obsequies of John Hooker Ashmun, Esq., Royal Professor of Law in Harvard University, Before the President, Fellows, and Faculty in the Chapel of the University (April 5, 1833). Because a donee takes a gift subject to all the claims against the donor, those descendants might assert a claim against Harvard Law School, as the stand-in for Isaac Royal. There would, of course, be serious problems with the statute of limitations. However, one might find a court—perhaps in Barbados—willing to toll the statute of limitations because the courts were unavailable to the plaintiffs at the time. One might also apply the rule that the statute of limitations does not begin to run on stolen personal property until a claim is made for its return. See Elizabeth Tyler Bates, Reparations for Slave Art, 55 Ala. L. Rev. (forthcoming 2004).
27 Several articles recently have made the case for reparations in the Jim Crow—rather than slavery—context. See Sherrilyn A. Ifill, Creating a Truth and Reconciliation Commission for Lynching, 21 L. & Inequality 263, 309–10 (2003); Emma Coleman Jordan, A History Lesson: Reparations for What?, 58 N.Y.U. Ann. Surv. Am. L. 557, 559 (2003). Both focus on the ugly legacy of lynching, which has captured the attention of historians in recent years. The new lynching studies offer detailed evidence of communities’ complicity. As a result, lynching cases often offer compact sites for viewing both the evils of Jim Crow and for tracing out its effects on the present.
In many ways, Jim Crow cases are more compelling than reparations for slavery. Often, victims are still alive, the evidence is often stronger than in slavery cases, and instances of harm are closer in time than slavery. The common refrain—that all the slaves are dead—does not apply to Jim Crow, where there are victims still living. Reparations for Jim Crow may offer the way to bridge supporters and detractors of reparations for slavery.
28 For more on the Tulsa riot, listen to Fresh Air (NPR radio broadcast, Feb. 22, 2000), available at http://freshair.npr.org/day_fa.jhtml?display=day&todayDate=02/22/2000 (last visited Nov. 12, 2003); Talking History (Dec. 3, 2002), available at http://talkinghistory. oah.org/shows/2002/TulsaRiots.mp3 (last visited Oct. 17, 2003); The Tavis Smiley Show (NPR radio broadcast, Feb. 26, 2003), available at http://www.npr.org/rundowns /rundown. php?prgId=14&prgDate=26-Feb-2003 (last visited Oct. 17, 2003). See generally Brophy, supra note 3.
29 There are some suggestive cases in which the statute of limitations has been tolled over many years in certain limited and extraordinary circumstances. See, e.g., Bodner v. Banque Paribas, 114 F. Supp. 2d 117, 134–35 (E.D.N.Y. 2000). In cases where the plaintiffs could not gain effective relief, particularly when the government made it impossible to pursue the claims, some federal courts have tolled the statute of limitations. In Rosner v. United States, 231 F. Supp. 2d 1202, 1208 (S.D. Fla. 2002), for instance, the plaintiffs alleged that the government mistakenly reported that gold taken from French holocaust victims was unidentifiable and unreturnable. The government’s culpability in cases like Tulsa, where the courts were effectively unavailable, goes beyond the failure of the government to mislead owners about the identity of property.
Alternatively, legislation might extend the statute of limitations. In Deutsch v. Turner Corp., 324 F.3d 692 (9th Cir. 2003), the Ninth Circuit Court of Appeals invalidated a California statute that extended the period of limitations for victims of World War II-era forced slave labor on the grounds that the statute ran afoul of the Foreign Affairs Doctrine and was therefore unconstitutional. See id.; Cal. Civ. Pro. Code � 354.6 (West 2003). A similar law focused on purely domestic slave labor might avoid such difficulties. Nevertheless, such legislation extending the statute of limitations against the government is unlikely in states where the legislature refuses to take action, as happened in Tulsa. However, state legislatures may be willing to impose the liability on companies, particularly if they do most of their business outside the state, as was the case with the California statute that required insurance companies to disclose life insurance policies written by their affiliates in Europe from 1920 to 1945.
For more on the unavailability of relief for Tulsa riot victims, see Alfred L. Brophy, Norms, Law, and Reparations: The Case of the Ku Klux Klan in 1920s Oklahoma, 19 Harv. BlackLetter L.J. (forthcoming 2004); Alfred L. Brophy, Racial Legislation, Violence, and the Breakdown of Law in the Tulsa Riot Era (2003) (unpublished manuscript, on file with author).
30 There may, of course, be other claimants to the property, who—if we are willing to toll the statute of limitations—may have a superior claim to those seeking to use it for reparations purposes. See generally Ernest J. Weinrib, Restitutionary Damages as Corrective Justice, 1 Theoretical Inquiries L. 1 (2000) (arguing that restitution for any wrongful gain “is unsatisfactory because it fails to link the damages that the plaintiff receives to the normative quality of the defendant’s wrong”).
31 See, e.g., Ralph Ranalli, Push Made to Toughen Abuse Laws: Romney, Reilly Weigh Changes, Bos. Globe, July 26, 2003, at A1 (discussing a proposal to remove statutes of limitation for sexual abuse claims in Massachusetts).
32 Report of the Special Committee Authorized by Congress to Investigate the East St. Louis Race Riots, H.R. Doc. No. 65–1231, at 1, 15 (1918). Several books provide further examples of race-related labor conflicts. See generally Eric Arneson, Brotherhoods of Color: Black Railroad Workers and the Struggle for Equality (2001); James R. Grossman, Land of Hope: Chicago, Black Southerners & the Great Migration (1989); Rick Halpern, Down on the Killing Floor: Black and White Workers in Chicago’s Packinghouses, 1904–54 (1997).
33 See Elliott M. Rudwick, Race Riot at East St. Louis, July 2, 1917 (1964). Mr. Rudwick’s monograph, so pioneering at the time, brought attention to the tragedy. Nevertheless, it is seriously outdated in its failure to provide attention to African-American culture. The victims of the riot appear in the monograph as little more than pawns in a historical tragedy; we need a study that gives the African-American community more attention. How, one wonders, did the great ideas of the renaissance influence the community’s arming for self-protection? How did the great migration lead to conflict between African-American and white workers? How did the manufacturing and meat packing companies in East St. Louis manipulate racial dynamics, to set the stage for riot? Moreover, we now have much more sophisticated methods of interpreting the narratives told before the Congressional Committee investigating the riot and in the pages of white and black newspapers throughout the country than were available in Mr. Rudwick’s time. There are many questions that need answers and, fortunately, hundreds of pages of congressional testimony, as well as civil and criminal lawsuits, that can help answer those questions. Finally, there is a great need for exploration of the results of the riot—essentially, how it was remembered and how that memory affected Chicago, Elaine, Arkansas, and Washington in 1919 and Tulsa in 1921.
34 See City of Chicago v. Sturgis, 222 U.S. 313, 322–24 (1911) (upholding the constitutionality of Illinois statute imposing liability on cities for three-quarters value of mob damage regardless of fault); see also Morton J. Horwitz, The Transformation of American Law, 1870–1960, at 123–26 (1992) (discussing Justice Holmes’s views on strict liability in tort law).
35 John F. Godshalk, In the Wake of Riot: Atlanta’s Struggle for Order, 1899–1919, at 35–39 (unpublished Ph.D. dissertation, Yale University) (on file with Southwest Missouri State University); see Dominic J. Capeci, Jr. & Jack C. Knight, Reckoning with Violence: W.E.B. Du Bois and the 1906 Atlanta Race Riot, 62 J. S. Hist. 727, 741–46 (1996).
36 See generally Alfred L. Brophy, The Tulsa Race Riot Commission, Apologies, and Reparations: Understanding the Functions and Limitations of a Historical Truth Commission, in Apologies and Truth Commissions (Alexander Karn ed., forthcoming 2004) (discussing what truth commissions can accomplish as well as their limitations); Ifill, supra note 27, at 309–11 (discussing the roles that truth commissions for lynchings might fill).
37 See Moore v. Dempsey, 261 U.S. 86, 88–89 (1923).
38 See id. at 91–92.
39 See Hollins v. Oklahoma, 295 U.S. 394, 395 (1935).
40 See Powell v. Alabama, 287 U.S. 45, 50–51 (1932). See generally Dan T. Carter, Scottsboro: A Tragedy of the American South (1969) (providing a narrative account of the Scottsboro case, addressing such issues as racism, radicalism, and the southern judicial system); James E. Goodman, Stories of Scottsboro (1994) (telling the story of Scottsboro and addressing controversial issues ignored by past authors).
41 Email from David I. Levine, Professor of Law, University of California at Hastings College of Law, to Alfred L. Brophy, Professor of Law, University of Alabama (Oct. 31, 2003, 16:29 EST & 16:53 EST) (on file with author).
42 See Alberto B. Lopez, $10 and a Denim Jacket? A Model Statute for Compensating the Wrongly Convicted, 36 Ga. L. Rev. 665, 721–22 (2002).
43 Guinn v. United States, 228 F. 103, 109–10 (8th Cir. 1915).
44 Id. at 109.
45 See id. at 109–10.
46 See id. at 110.
47 See Guinn v. Oklahoma, 238 U.S. 347, 363–64 (1915).
48 See Michael J. Klarman, Race and the Court in the Progressive Era, 51 Vand. L. Rev. 881, 914–15 (1998); Peyton McCrary, Bringing Equality to Power: How the Federal Courts Transformed the Electoral Structure of Southern Politics, 1960–1990, 5 U. Pa. J. Const. L. 665, 669–70 (2003); Mark V. Tushnet, Progressive Era Race Relations Cases in their “Traditional” Context, 51 Vand. L. Rev. 993, 996–97 (1998).
49 In some cases, the mere deprivation of a constitutional right—even if there is no harm—may be compensable. See, e.g., Carey v. Piphus, 435 U.S. 247, 266 (1978). Or in some cases there may be injunctive relief to re-vote, even if there is little evidence that the vote will come out differently. See Bell v. Southwell, 376 F.2d 659, 664–65 (5th Cir. 1967). The latter remedy is obviously ineffective unless the election misbehavior occured recently.
50 See City of Richmond v. J.A. Croson, Co., 488 U.S. 469, 498 (1989) (requiring more than a “generalized assertion that there has been past discrimination in an entire industry”); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986) (“Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy.”).
51 426 U.S. 229, 239–45 (1976) (holding that a law is not unconstitutional solely because it has a racially disproportionate impact, regardless of whether it reflects a racially discriminatory purpose).
52 Obviously, the discriminatory motive was demonstrated in the legislation struck down in Guinn. See 238 U.S. at 363–64. Nevertheless, we might learn from the history of voting rights discrimination that we need to be especially vigilant in the protection of voting rights. See Kim Forde-Mazrui, The Constitutional Implications of Race-Neutral Affirmative Action, 88 Geo. L.J. 2331, 2346 n.70 (2000) (discussing voting rights). The Voting Rights Act of 1965 ought, in that case, to be considered a key piece of reparations legislation, for it was based so fully on the history of discrimination. 42 U.S.C. � 1973 (Supp. 1982); see H.R. Rep. No. 89-439, at 21–22 (1965), reprinted in 1965 U.S.C.C.A.N. 2437, 2445–44. Indeed, the Supreme Court has recently re-acknowledged the role of history in supporting the constitutionality of the Act. See Univ. of Ala. v. Garrett, 531 U.S. 356, 373 (2001) (“Congress documented a marked pattern of unconstitutional action by the States. State officials, Congress found, routinely applied voting tests in order to exclude African-American citizens from registering to vote. Congress also determined that litigation had proved ineffective and that there persisted an otherwise inexplicable 50-percentage-point gap in the registration of white and African-American voters in some States.”) (citation omitted).
53 347 U.S. 483 (1954).
54 See Arthur LeFrancois, Our Chosen Frequency: Norms, Race, and Transcendence in Ralph Ellison’s Cadillac Flamb�, 26 Okla. City U. L. Rev. 1021, 1022 (2001) (discussing Ellison’s experience with a segregated library in Oklahoma City). See generally Patterson Toby Graham, A Right to Read: Segregation and Civil Rights in Alabama’s Public Libraries 1900–65 (2002) (discussing segregation in Alabama’s libraries).
55 See generally Graham, supra note 54.
56 Although one might expect that in an area like libraries, whose sole function is to provide education (and therefore educational, social, moral, and economic growth), the forces supporting improvement for all would suppress tendencies toward racial exclusion, libraries were hotly contested sites of integration. See, e.g., Kerr v. Enoch Pratt Free Library of Baltimore City, 149 F.2d 212, 213 (4th Cir. 1945) (showing discrimination in providing training for library workers); Hainsworth v. Harris County Comm’rs’ Court, 265 S.W.2d 217, 218 (Tex. Civ. App. 1954) (refusing relief from allegation that county law library was segregated). Perhaps because of the symbolic value of libraries, they became an important site for sit-ins during the Civil Rights movement. See generally Brown v. Louisiana, 383 U.S. 131 (1966) (reversing convictions of African Americans who conducted a sit-in at a public library).
57 There is some record of court-directed collection development. See Taylor v. Perini, 421 F. Supp. 740, 749–54 (N.D. Ohio 1976) (listing more than 100 books on black experience to be added to a prison library).
58 As long as we are thinking about lawsuits for segregated facilities, one might consider segregated parks and swimming pools. See, e.g., Palmer v. Thompson, 403 U.S. 217, 228 (1971) (upholding Jackson, Mississippi’s closing of public swimming pools instead of integrating them). The problems with those suits is that the behavior was legal at the time. If the behavior was legal, it becomes difficult to find a cause of action. How do we go back and impose liability on the city of Jackson—where, because of changing demographics, 70.6% of the city was black in 2000? See U.S. Census Bureau, 2000 Census of Population and Housing: Mississippi Summary Population and Housing Characteristics 74, tbl.4 (2003), available at http://www.census.gov/prod/cen2000/phc-1-26.pdf (last visited Nov. 26, 2003). This is a strange phenomenon, whereby the current taxpayers, who are descended from the people who were discriminated against (and some of whom were victims themselves), are being asked to pay reparations to themselves. They are asked to pay for decisions that were legal at the time—and presumably still are legal.
The case works much better when the Jim Crow discrimination was illegal at the time—or at least questionable—and was subsequently prohibited. It also works better in cases where there is a continuing effect (as in library collections or location) of past illegal conduct.
59 Keith N. Hylton, Slavery and Tort Law 2–4 (Boston Univ. Sch. of Law, Working Paper No. 03–02, 2003 Soc. Science Research Network Elec. Paper Collection), at http:// www.bu.edu/law/faculty/papers/pdf_files/HyltonK012803.pdf (last visited Nov. 9, 2003).
60 Reparations claims are often phrased as lawsuits. See Arthur Serota, Ending Apartheid in America: The Need for a Black Political Party and Reparations Now 137–42 (1996) (explaining reparations using the example of a personal injury lawsuit).
61 219 F. Supp. 1027, 1046 (N.D. Cal. 2002).
62 See William E. Nelson, The Legalist Reformation: Law, Politics, and Ideology in New York, 1920–1980, at 1 (2001) (analyzing courts as a way of integrating—and controlling—inter-group conflict). See generally Edward A. Purcell, Jr., Litigation and Inequality: Federal Diversity Jurisdiction in Industrial America, 1870–1958 (1992) (discussing caseload of federal district courts and the distinct types and uses of litigation). Nelson suggests that courts were the vehicle for integrating the diverse New York communities. Nelson, supra, at 1.
63 Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857); see Alfred L. Brophy, Let Us Go Back and Stand Upon the Constitution: Federal-State Relations in Scott v. Sandford, 90 Colum. L. Rev. 192, 193 (1990) (discussing the implications of Dred Scott for rights of states in areas such as taxation and slavery). Most frequently, however, the common law protected narrow claims.
[0] 64 Alfred L. Brophy, Humanity, Utility, and Logic in Southern Legal Thought: Harriet Beecher Stowe’s Vision in Dred: A Tale of the Great Dismal Swamp, 78 B.U. L. Rev. 1113, 1150 n.143 (1998) (quoting 2 Harriet Beecher Stowe, Dred: A Tale of the Great Dismal Swamp 76 (1856)).
65 See Christine A. Desan, The Constitutional Commitment to Legislative Adjudication in the Early American Tradition, 111 Harv. L. Rev. 1382, 1421–23 (1998) (discussing the petitioning by soldiers to the New York legislature for reimbursement of expenses and the government’s acquiescence in the form of a pension). Pensions have historically been an important part of American social welfare policy. Indeed, Theda Skocpol has suggested that they were the major source of social welfare before the New Deal, and that they served as a model for other social welfare programs. See Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States 7–11 (1992). See generally Laura Jensen, Patriots, Settlers, and the Origins of American Social Policy (2003) (interpreting pensions and land grants as part of early American origins of entitlement); Elizabeth Regosin, Freedom’s Promise: Ex-Slave Families and Citizenship in the Age of Emancipation (2002) (discussing Civil War pensions for African Americans).
66 One might look in particular to “the outsiders”—the people left without the protection of the antebellum legal system—to understand its reverence for property rights. See What Is the Reason? How Much Land and Property and I Have None!, 16 U.S. Mag. & Demo. Rev. 17, 18 (1845), at http://cdl.library.cornell.edu/cgibin/moa/pageviewer?coll=moa &root=moa/usde/usde0016/&tif=0025.TIF&view=50&frames=1 (last visited Oct. 16, 2003). But one can also gain a picture of its reverence from leading periodicals. See generally The Common Law, 19 N. Am. Rev. 411 (1824) (discussing the veneration and obedience paid to authority and precedent in law). Another often-overlooked indicium of the reverence of the age (and particularly jurists) for order through law comes from college lectures. See William Gaston, An Address Delivered Before the American Whig and Cliosophic Societies of the College of New Jersey 31 (Sept. 29, 1835) (discussing the importance of law in the protection of freedom); William Greene, Some of the Difficulties in the Administration of a Free Government: A Discourse, Pronounced Before the Rhode Island Alpha of the Phi Beta Kappa Society (July 8, 1851), in Alfred L. Brophy, The Rule of Law in Antebellum College Literary Addresses: The Case of William Greene, 31 Cumb. L. Rev. 231, 261 app. (2001) (discussing the duty of a citizen to sustain the law while it exists, no matter how wrong he finds it); Daniel Lord, On the Extra-Professional Influence of the Pulpit and the Bar: An Oration Delivered at New Haven, Before the Phi Beta Kappa Society of Yale College (July 30, 1851) (saying that the highest triumph of jurisprudence has been the application of old principles, not the invention of new ones), at http://www.law.ua.edu/directory/bio/abrophy/Brophy_Lord%201851.html (last visited Nov. 12, 2003); Timothy Walker, The Reform Spirit of the Day: An Oration Before the Phi Beta Kappa Society of Harvard University (July 18, 1850) (addressing the spirit of reform and its use for improving society), at http://www.law.ua.edu/directory/bio/abrophy/ walker.html (last visited Nov. 12, 2003).
67 The most vigorous interpretation is Peter Karsten, Heart Versus Head: Judge-Made Law in Nineteenth-Century America 4–5 (1997). For critical responses, see Alfred L. Brophy, Reason and Sentiment: The Moral Worlds and Modes of Reasoning of Antebellum Jurists, 79 B.U. L. Rev. 1161 (1999); Lawrence M. Friedman, Losing One’s Head: Judges and the Law in Nineteenth-Century American Legal History, 24 L. & Soc. Inquiry 253 (1999).
68 The recent scholarship that has refocused our attention on the ways that the community regulates property, such as Professor Novak’s People’s Welfare, does little to alter our understanding that American law—particularly the common law—had as its primary goal the protection of property, not its redistribution. See William Novak, People’s Welfare (1996); see also James W. Ely, Jr., The Guardian of Every Other Right: A Constitutional History of Proprty Rights 59–81 (1992) (discussing property rights in the antebellum era); Alfred L. Brophy, The Intersection of Property and Slavery in Southern Legal Thought: From Missouri Compromise Through Civil War (2001) (unpublished Ph.D. dissertation, Harvard University) (on file with University of North Carolina, Chapel Hill Library) (discussing reverence for property and the judiciary’s protection of property in the old South). While it is certainly appropriate to focus on the ways that legal doctrine protected the community in the antebellum era, the dominant interpretation continues to be of the ways that legal doctrine promoted economic growth. See Morton J. Horwitz, The Transformation of American Law, 1780–1860, at 63–108 (1977).
69 See generally Davison M. Douglas, Reading, Writing and Race: The Desegregation of the Charlotte Schools (1995) (examining the legal effort to integrate the Charlotte schools); Larry W. Yackle, Reform and Regret: The Story of Federal Judicial Involvement in the Alabama Prison System (1989) (explaining the implications of prison reform in Alabama’s penal institutions).
70 See Milliken v. Bradley, 433 U.S. 267, 280 (1977) (saying that remedial action “must be designed as nearly as possible ‘to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct’”).
71 See Hohri v. United States, 586 F. Supp. 769 (D.C. 1984), aff’d, 847 F.2d 779 (Fed. Cir. 1988). Even after the Civil Liberties Act of 1988 provided compensation for Japanese Americans interned during World War II, some of those interned could not recover. See Higashi v. United States, 225 F.3d 1343, 1349 (Fed. Cir. 2000) (denying claim of daughter of individuals interned during World War II); Kanemoto v. Reno, 41 F.3d 641, 647 (Fed. Cir. 1994) (transferring claim of person who was forcibly relocated to Japan as part of “prisoner” exchange to Court of Claims); Jacobs v. Barr, 959 F.2d 313, 321–22 (D.C. Cir. 1992) (denying claim of German American interned during World War II). But see Mochizuki v. United States, 43 Fed. Cl. 97, 98 (1999) (approving class action settlement for Japanese people living in Latin America who were interned during World War II).
72 See Deutsch v. Turner Corp., 324 F.3d 692, 697 (9th Cir. 2003), modifying 317 F.3d 1005, 1010 (9th Cir. 2003) (dismissing claim as barred by treaty ending World War II).
73 See Abrams v. Societe Nationale des Chemins de Fer Francais, 332 F.3d 173, 176 (2d Cir. 2003) (vacating the district court’s grant of defendant’s motion to dismiss); In re Holocaust Victim Assets Litig., 105 F. Supp. 2d 139, 141 (E.D.N.Y. 2000) (approving settlement of $1.25 billion of claims arising from assets retained by Swiss banks in aftermath of World War II).
74 See Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1146 (7th Cir. 2001); Princz v. Federal Republic of Germany, 26 F.3d 1166, 1168 (D.C. Cir. 1994); In re Nazi Era Cases Against German Defendants Litig., 129 F. Supp. 2d 370, 389–90 (D.N.J. 2001).
75 See Am. Ins. Ass’n v. Garamendi, 123 S. Ct. 2374, 2379 (Supp. 2003).
76 Holocaust Victim Insurance Relief Act of 1999, Cal. Ins. Code �� 13800–13807 (Supp. 2003).
77 See id. � 13812. See generally V. Dion Haynes, Report Names Slaves, Owners and Insurers, Chi. Trib., May 2, 2002, � 1, at 1 (discussing California’s report on insurance companies that insured slaves and lawsuits seeking reparations from those companies); L.A. Council Moves Toward Slavery Law, San Diego Union-Trib., June 21, 2003, at A6 (discussing city ordinances that require disclosure of corporations’ connections with slavery). The California law has resulted in a registry of names of insurance companies that wrote policies, as well as the names of people whose slaves were insured. Cal. Dep’t of Ins., Slavery Era Ins. Registry by Name of Slaveholder (2002), at http:// www.insurance.ca.gov/SEIR/ main.htm (last modified July 26, 2002).
78 See Lisa Girion, 1789 Law Acquires Human Rights Role, L.A. Times, June 16, 2003, at 1 (discussing increased efforts by plaintiffs to hold corporations liable for their human rights abuses in the developing world, including a pending case against California-based Unocal Corporation before the Ninth Circuit Court of Appeals).
79 See Calvin Massey, Some Thougts on the Law and Politics of Reparations for Slavery, 24 B.C. Third World L.J. 157 (2004) (listing problems with reparations and asking questions about implementation); Peter Schuck, Slavery Reparations: A Misguided Movement, Jurist, Dec. 9, 2002 (listing questions in implementation, which must be answered in order to determine the content of reparations programs), at http://jurist.law.pitt.edu/forum/ forumnew78.php (last visited Nov. 12, 2003).
80 Serota, supra note 60, at 147.
81 Munford, supra note 14, at 413. Munford continues:
Insist on collecting everything owing to us as a people historically, down to the last penny, and not one whit less. Make indemnification item number one on the Black political signboard. We need to calculate the gigantic debt owed the African creators of the wealth luxuriated in by the white industrialized North and once that is done, get right down to negotiating the forms, accrued interests and period of amortization. As Manning Marable observes, public policy toward Afro-Americans has been up in the air ever since desegregation was legally won 30 years ago and more. Reparations—and its Siamese twin, Black empowerment—are imperative if the end of formal segregation is ever to amount to anything but a sham leading absolutely nowhere.
Id. at 413–14 (citation omitted).
82 See Erin E. Byrnes, Unmasking White Privilege to Expose the Fallacy of White Innocence: Using a Theory of Moral Correlativity to Make the Case for Affirmative Action Programs in Education, 41 Ariz. L. Rev. 535, 554 (1999) (“Unmasking the operation of white privilege is essential to the goal of reaching equality under modern theories of affirmative action.”); Cheryl Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1721 (1993) (“White identity and whiteness were sources of privilege and protection; their absence meant being the object of property.”); John A. Powell, Whites Will Be Whites: The Failure to Interrogate Racial Privilege, 34 U.S.F. L. Rev. 419, 422–27 (2000) (reviewing the “negative” nature and function of white racial privilege). See generally Paula S. Rothenberg, White Privilege: Essential Readings on the Other Side of Racism (2002) (compiling essays and articles that examine the nature of white privilege and that suggest ways to use that privilege as a weapon against racism); Stephanie M. Wildman, Privilege Revealed: How Invisible Preference Undermines America (1996) (describing the reinforcing effect of white privilege on “the existing racial status quo”).
83 William Bradford, “With a Very Great Blame on Our Hearts”: Reparations, Reconciliation, and an American Indian Plea for Peace with Justice, 27 Am. Indian L. Rev. 1, 99–100 (2002–2003) (citations omitted).
84 See generally Kirby Moss, The Color of Class: Poor Whites and the Paradox of Privilege (2003) (challenging the assumptions of racial privilege associated with certain categories of color and class); Stephen Thernstrom & Abigail Thernstrom, America in Black and White (1997) (providing a framework for the debate on race and racism in America).
85 See Bernadette D. Proctor & Joseph Dalaker, U.S. Census Bureau, Poverty in the United States 2 tbl.1 (2003), available at http://www.census.gov/hhes/www/poverty 02.html (last visited Nov. 18, 2003).
86 Recently, Christian Sundquist has criticized reparations for aiming too narrowly and failing to attack white privilege. Christian Sundquist, Critical Praxis, Spirit Healing, and Community Activism: Preserving a Subversive Dialogue on Reparations, 58 N.Y.U. Ann. Surv. Am. L. 659, 661–62 (2003) (“Current models of reparations present a narrow understanding of the ‘debt’ owed, limit the potential of spirit-healing within the Black community, do not seek to undermine privilege, and promote white backlash and intra-community divisiveness.”) (citation omitted). I am not quite sure what scholarship Mr. Sundquist has in mind. To my reading, Randall Robinson’s The Debt is largely about redistribution of property and, hence, white privilege. See generally Randall Robinson, The Debt: What America Owes to Blacks (2000). Nevertheless, the differences between the demands of reparations activists and critical race theorists certainly warrant attention. See generally Eric Yamamoto, Interracial Justice, supra note 3 (advancing goals of interracial justice and peace); Anthony E. Cook, King and the Beloved Community: A Communitarian Defense of Black Reparations, 68 Geo. Wash. L. Rev. 959 (2000) (emphasizing redistribution of privilege); Matsuda, supra note 2 (advancing the goal of corrective justice); Jerome McCristal Culp, To the Bone: Race and White Privilege, 83 Minn. L. Rev. 1637 (1999) (also emphasizing redistribution of privilege); Roy Brooks, Slave-Redress Litigation in the United States (June 14, 2003) (unpublished manuscript on file with author) (advancing a mixture of distributive and corrective justice). Such a comparison suggests the differences in reparationists’ goals—interracial justice and peace (in Yamamoto’s case), corrective justice in Matsuda’s, and a mixture of distributive and corrective justice in Brooks’s case, and more of an emphasis on redistribution of privilege in Cook’s and Culp’s case. It is becoming difficult to answer the question, “What do reparationists want?” because they have so many different—and perhaps even contradictory—goals.
87 One of the surprising elements is that even in the most recent major book on this topic, we have hundreds of pages of discussion on whether the United States government and corporations should pay reparations. But there is very little discussion on what they would pay, if they were going to do so. See generally Should America Pay?, supra note 6 (providing comprehensive view of reparations history, legal issues, and various opinions); When Sorry Isn’t Enough: The Controversy over Apologies and Reparations for Human Injustice (Roy L. Brooks, ed., 1999) (compiling essays on redress for human injustice).
88 See Westley, supra note 2, at 468 (“Because it is my belief that Blacks have been and are harmed as a group, that racism is a group practice, I am opposed to individual reparations as a primary policy objective.”).
89 Id.
90 Id. at 470. Others see money as central to reparations, even though they do not propose payments to individuals. As Professor Asante has phrased the issue, “[O]ne way to approach the issue of reparations is to speak about money, but not necessarily about cash. Reparations will cost, but it will not have to be the giving out of billions of dollars of cash to individuals, although it will cost billions of dollars.” Molefi Kete Asante, The African American Warrant for Reparations: The Crime of European Enslavement of Africans and Its Consequences, in Should America Pay?, supra note 6, at 3, 12.
91 See Westley, supra note 2, at 470 (“In the end, determining a method by which all Black people can participate in their own empowerment will require a much more refined instrument than it would be appropriate for me to attempt to describe here.”).
92 Asante, supra note 90, at 12. Asante also proposes a commission to study reparations, educate the public about their importance, and make recommendations about further reparations. Id.
93 John McWhorter, Against Reparations, in Should America Pay?, supra note 6, at 193. Professor McWhorter concludes, “I do not believe that blacks should be left simply to pull ourselves up by the proverbial bootstraps. Our grim history is real. Yet so, too, are the reparations that we have already secured in the form of all these government programs and government monies.” Id.
94 Serota, supra note 60, at 147.
95 Professor Bell provides one example in his re-writing of the Brown decision. See Derrick Bell, Bell, J., dissenting., in What “Brown v. Board of Education” Should Have Said 185–99 (Jack M. Balkin ed., 2002). But even that is phrased as a dissent, rather than a majority opinion. See Jordan Steiker, American Icon: Does It Matter What the Court Said in Brown?, 81 Tex. L. Rev. 305, 313–14 (2002) (discussing Bell’s requirement of material equality rather than integration). Bell’s “dissent” illustrates the extent to which critical race scholarship has (at least temporarily) abandoned integration as an ideal. Reparations fits with that goal, abandoning integration in favor of money. Or, phrased another way, reparations embraces the belief that money is a better way than equal treatment of purchasing equality.
96 See Jeffrey J. Pyle, Note, Race, Equality and the Rule of Law: Critical Race Theory’s Attack on the Promises of Liberalism, 40 B.C. L. Rev. 787, 806 (1999) (discussing critical race scholarship’s focus on group-based relief rather than relief to individuals). The issue warrants substantially greater analysis, which should explore the ways that racial groups have been created, then subordinated, by law. See, e.g., Westley, supra note 2, at 438–39. Of course, there remain critical issues of fairness: is continuing group-identification the best way (or even a good way) of remedying past race-conscious action? Every fair-minded person acknowledges the sordid nature of race-conscious actions of the federal and state governments; however, there is substantial debate over how to best remedy that legacy. How closely must the remedy be tied to the evidence of harm?
97 See Keyes v. Sch. Dist. No. 1, Denver, Colo., 413 U.S. 189 (1973); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15, 29–31 (1971).
98 Swann, 402 U.S. at 16.
99 Professor Laycock has phrased the issue similarly in Douglas Laycock, Modern American Remedies 1080 (2d ed. 1994). He begins his casebook with a takings case, in which Native Americans’ animals were taken by the Department of Interior without due process. The court must then decide how to compensate the plaintiffs for the loss of their animals. The Tenth Circuit Court of Appeals concludes that there cannot be a generalized finding of the value of animals; the trial court must make individual assessments. See id. at 11–15 (reprinting United States v. Hatahley, 257 F.2d 920 (10th Cir. 1958)). Laycock returns again at the end of the casebook with the observation that the court’s “decision reflects our legal system’s traditional view that litigation remedies particular wrongs to particular plaintiffs. To change that practice as a general matter would require a wholly different law of remedies, and perhaps a wholly different role for courts in the constitutional scheme.” Id. at 1079. From that observation flows the question that reparations plaintiffs would have to answer to a court reviewing their claim for group relief: “If a remedy is not designed to restore someone to his rightful position, in what sense is it a remedy?” Id. at 1179. One answer is that the court might be remedying past generalized discrimination by the Department of the Interior against the Native Americans who lost their livestock by granting a generous lump-sum payment. See id. at 1179.
Of course, reparationists might reasonably argue that reparations payments are restoring plaintiffs to their rightful positions. But that will require extensive documentation about the nature of the past injury, as caused by the defendants (or their predecessors). See Brophy, supra note 10, at 517–19 (discussing the problems of linking past harm to current plaintiffs).
100 See Owen M. Fiss, The Forms of Justice, 93 Harv. L. Rev. 1, 46 n.94 (1979) (stating that “Swann sustained the most untailored remedy imaginable”). Or, as Professor Laycock has called it, “an attempt to do complete equity, unconstrained by any direct link to a defined violation or the plaintiff’s rightful position.” Laycock, supra note 99, at 283.
101 433 U.S. 406 (1977).
102 Id. at 420.
103 347 U.S. 483 (1954).
104 See Hylton, supra note 59, at 2–4; Massey, supra note 79, at 161–62. In the case of a class action, a group of plaintiffs must have claims or defenses typical of those of the identifiable plaintiffs. See Fed. R. Civ. P. 23; Morris A. Ratner, Factors Impacting the Selection and Positioning of Human Rights Class Actions in United States Courts: A Practical Overview, 58 N.Y.U. Ann. Surv. Am. L. 623, 642 (2003). One of the most troubling aspects of the lawsuit against CSX and Aetna is that the plaintiff has not identified her relationship to anyone who was enslaved by CSX’s predecessor or whose life was insured by Aetna. In essence, she asks for money for a harm that she has not suffered. See supra, note 26.
105 The issue of identifying a defendant might be relaxed slightly in the case of enterprise liability, if the defendant is part of an industry that caused the plaintiff harm. In such a case, liability could be imposed based on the defendant’s share in the industry.
106 Bradford, supra note 83, at 96 n.458.
107 Cook argues:
A new paradigm is needed because the conventional paradigm of Constitutional Liberalism limits our ability to draw legal and moral connections between the past injuries inflicted by slavery, segregation, and present racial disparities in income, wealth, employment, education, etc. This conventional Liberal paradigm discusses injury and remedy within carefully drawn parameters of individual fault and causation. Having to identify a specific perpetrator who has caused a concrete injury to an identifiable victim makes it difficult to talk about society’s responsibility for the present effects of slavery and segregation.
Cook, supra note 86, at 964–65 (citation omitted).
108 See, e.g., Jerry L. Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims 92–93 (1983) (focusing on the social security system). Professor Leslie Mansfield of the University of Tulsa, who is one of the lawyers in the case for the Tulsa riot victims, has suggested several other administrative models, including the mine workers’ compensation program.
109 See Hylton, supra note 59, at 10; see also Massey, supra note 79, at 158–61 (pointing out the difficulty of applying modern-day tort principles to the institution of slavery).
110 Hylton, supra note 59, at 10.
111 Id. at 11.
112 See, e.g., Costello v. Unarco Indus., Inc., 490 N.E.2d 675 (Ill. 1986) (reversing dismissal of a strict liability action in tort despite retroactive effect and an existing statute of repose).
113 Hylton, supra note 59, at 12.
114 Id. at 12–13. It is unnecessary to enter the Fogel-Engerman world in order to contemplate reparations. Nevertheless, it is important to recall that their work is largely discredited. Many of the findings of Time on the Cross were called into disrepute in the years afterwards. See, e.g., Paul A. David et al., Reckoning with Slavery 339–57 (1976); Herbert George Gutman, Slavery and the Numbers Game: A Critique of Time on the Cross 8–13 (1975). See generally Robert Fogel & Stanley Engerman, Time on the Cross: The Economics of American Negro Slavery (1974). It is similarly significant that legal scholars cite Time on the Cross far more frequently than they cite either of the two books responding to it—and largely demolishing it. A recent Westlaw search in the “journals and law reviews” database turned up forty-eight articles citing Time on the Cross, nine citing Reckoning with Slavery, and eleven citing Slavery and the Numbers Game. Available at http://www.westlaw.com (last visited Nov. 26, 2003).
115 See supra note 108.
116 See, e.g., John McWhorter, Losing the Race: Self-Sabotage and Black Culture 9–10 (2000); Thernstrom & Thernstrom, supra note 84, at 337–41.
117 See Hylton, supra note 59, at 23.
118 Id. Let me leave aside for the moment the question of whether slaves were able to marry or have a conventional marriage. Hylton’s assumption that they could not suggests that from the vantage of the twenty-first century, it is difficult for us to see that slaves might have carved out a life within the system of slavery. In fact, much of the finest work of the 1970s was devoted to showing that slaves could create a life independent of their slave masters. See, e.g., Eugene Genovese, Roll, Jordan, Roll, at xv–xvii (1973); Charles Joyner, Down by the Riverside: A South Carolina Slave Community, at xvii–xxii (1984). Ralph Ellison, author of Invisible Man, condemned modern social scientists for failing to see that slaves could carve out a productive life. Ellison’s review of Gunnar Myrdal’s American Dilemma built upon the idea—as did much of Ellison’s work—that too much of American culture viewed African Americans as objects rather than actors. Ellison struggled his whole life to correct that misperception:
[C]an a people (its faith in an idealized American Creed notwithstanding) live and develop for over three hundred years simply by reacting? Are American Negroes simply the creation of white men, or have they at least helped to create themselves out of what they found around them? Men have made a way of life in caves and upon cliffs; why cannot Negroes have made a life upon the horns of the white man’s dilemma?
Ralph Ellison, An American Dilemma: A Review, in Collected Essays of Ralph Ellison, supra note 14, at 339.
119 Hylton, supra note 59, at 23.
120 There may be some constitutional tort there, involving deprivation of religious freedom, but this discussion should be left for another time.
121 See generally Harriet Beecher Stowe, A Key to Uncle Tom’s Cabin 124–223 (William Loren Katz ed., Arno Press 1968) (1854) (summarizing statutory law of slave states).
122 Typically in cases of loss of consortium, those who may make a claim are limited to close family members, and sometimes even to those who are dependent on the decedent for support. See, e.g., Mitchell v. United States, 141 F.3d 8, 19–20 (1st Cir. 1998) (holding that adult nondependent children may recover); Masunaga v. Gapasin, 790 P.2d 171, 176–77 (Wash. Ct. App. 1990) (disallowing recovery for nondependent parents). Or maybe there is an argument for loss of inheritance. See Laycock, supra note 99, at 153–54.
123 See, e.g., Albala v. New York, 429 N.E.2d 786, 787 (N.Y. 1981) (limiting claims based on the belief that it would “require the extension of traditional tort concepts beyond manageable bounds”); W. Page Keeton et al., Prosser & Keeton on the Law of Torts � 55, at 367–70 (5th ed. 1984) (discussing legal right of child to sue for the consequences of prenatal injuries). See generally Julie A. Greenberg, Reconceptualizing Preconception Torts, 64 Tenn. L. Rev. 315 (1997) (discussing whether limiting liability in preconception actions is consistent with the purposes of tort law).
124 Courts tend to limit compensable harm to that which is proximately caused by the harm. See, e.g., Pruitt v. Allied Chem. Corp., 523 F. Supp. 975, 978–83 (E.D. Va. 1981) (limiting liability for damage caused by dumping chemicals in the James River and Chesapeake Bay).
125 See, e.g., United States v. Kozminski, 487 U.S. 931, 934–40 (1988) (providing a contemporary example of an involuntary servitude case).
126 See Ellison, supra note 14, at 332 (noting Gunar Myrdal’s attempt to debunk pseudo-scientific literature that had used slavery to confirm African-American inferiority).
127 Thernstrom & Thernstrom, supra note 84, at 337–41; see also Stephen Thernstrom & Abigail Thernstrom, Reflections on the Shape of the River, 46 UCLA L. Rev. 1583, 1606 (1999) (criticizing evaluations of black academic underperformance that fail to account for the effect of peer culture).
128 Douglas S. Massey & Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass 9 (1993). The appropriate measure of relief for slavery reparations ought to be the amount of damage that the institution of slavery imposed on subsequent generations. Cf. Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420 (1977) (“[T]he District Court . . . must determine how much incremental segregative effect these violations had on the racial distribution of the Dayton school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference.”); George Schedler, Responsibility for and Estimation of the Damages of American Slavery, 33 U. Mem. L. Rev. 307, 338 (2003) (“We need to be certain that the the difficulties African Americans now face are due to slavery, rather than racism that would have pervaded the United States even if it had no history of slavery.”). I think Professor Schedler overstates the level of proof reparationists need to advance when he states, “We need assurance that factors apart from the legacy of slavery, such as religious beliefs, cultural values, and genetics, play no role before we can be assured that slavery is the cause.” Schedler, supra, at 338–39. The question is not one of eliminating all other causes, but of determining with reasonable certainty the extent of slavery’s impact on subsequent generations.
129 Ryan v. N.Y. Cent. R.R. Co., 35 N.Y. 210, 216--17 (1866). After reading Ryan, one might ask Professor Schwartz to remind us why he thinks nineteenth century tort law was so plaintiff-friendly. See Gary T. Schwartz, The Character of Early American Tort Law, 36 UCLA L. Rev. 641, 685--87 (1989); cf. Robert J. Kaczorowski, The Common-Law Background of Nineteenth-Century Tort Law, 51 Ohio St. L.J. 1127, 1151–57 (1990) (discussing cases recognizing right of common carriers to exempt themselves from strict liabilty and gross negligence).
130 Of course, some tort cases in the nineteenth century were premised on that idea that slavery should be promoted. See, e.g., Snee v. Trice, 3 S.C.L. (1 Brev.) 178 (S.C. 1802) (limiting liability for field burned by slaves’ negligence); see also William W. Fisher, Ideology and Imagery in the Law of Slavery, 69 Chi. Kent L. Rev. 1051, 1060 & n.49 (1993) (discussing Snee). Snee is a remarkable case, a strong parallel to Ryan. And it is one that (I think) ought to be included in casebooks along with Ryan, for it illustrates the economic and social bases underlying decisions regarding proximate cause in tort.
131 See Hedgepeth v. Robertson, 18 Tex. 858 (1857); Harvey v. Epes, 53 Va. (12 Gratt.) 153 (1855); Gray v. Crocheron, 8 Port. 191 (Ala. 1838). Some cases employed the language of moral philosophy, holding a person who sold liquor to a slave liable for the slave’s death. See Harrison v. Berkley 32 S.C.L. (1 Strob.) 525 (S.C. 1847); Delery v. Mornet, 11 Mart. (o.s.) 4 (La. 1822). One might inquire how courts’ desire to impose liability on those who interfered with the slave system led to innovation in tort law?
132 See, e.g., Knightstown & S.R. Co. v. Lindsay, 8 Ind. 278 (1856) (Indiana statute); Doedt v. Wiswall, 15 How. Pr. 128 (N.Y. Sup. Ct. 1857) (imposing liability, relying upon New York wrongful death statute); Langlois v. Buffalo & Rochester R.R. Co., 19 Barb. 364 (N.Y. Sup. Ct. 1854) (imposing liability in absence of statute); Dunhene’s Adm’x v. Ohio Life Ins. & Trust Co., 12 Ohio Dec. Reprint 608 (Ohio Super. Ct. 1856) (Ohio wrongful death statute). The common law’s reasons for refusing compensation for wrongful death are surveyed in Connecticut Mut. Life Ins. Co. v. New York & N.H.R. Co., 25 Conn. 265 (1856). Justice Storrs discloses the bases for limiting liability and suggests how cold-hearted the common law was in this area. See also Carey v. Berkshire R. Co., 55 Mass. 475 (1848) (noting Massachusetts’ lack of a wrongful death statute).
133 But the larger point is not just that tort law in the nineteenth century was narrow and generally unprotective of individuals. Hylton is correct, of course, that it is unclear how much slavery, as opposed to other factors, has hindered individuals and led to the current chasm between African-American and non-Hispanic white income. That is a topic that needs much more evidence and discussion. See generally Michael K. Brown et al., Whitewashing Race: The Myth of a Color-Blind Society (2003) (arguing that racism remains a prevalent force in America and questioning the analysis of those who promote “color-blind” social policy). Reparations skeptics are beginning to explore this question: to what extent did slavery harm the current generation? See, e.g., Stephen Kershnar, Reparations for Slavery and Justice, 33 U. Mem. L. Rev. 277, 278–82 (2003) (arguing that contemporary slave descendants are not unjustly harmed by the enslavement of ancestors).
134 Sometimes we consider unjust enrichment under the heading of tort and other times under a separate heading of “unjust enrichment.” While most of the following discussion derives from the consideration of unjust enrichment as an independent action—not as a tort—I think it is important to discuss here, for the sake of completeness. See Douglas Laycock, The Scope and Significance of Restitution, 67 Tex. L. Rev. 1277, 1279–83 (1989).
135 See Restatement (Third) of Restitution and Unjust Enrichment � 1 (Discussion Draft, Mar. 31, 2000).
136 Id.
137 Id.
138 Id. Elsewhere the Restatement refers to unjust enrichment as the “transfer of a benefit without adequate legal ground.” Id.
139 See id.
140 Restatement, supra note 134, at � 14(3) (“If a wrongful threat is tantamount to physical compulsion, a transfer induced thereby is void, and the purported transferee obtains no title.”).
141 There is not yet a section exploring the nature of those breaches, but they are scheduled to appear as � 37. Id. at xxi.
142 317 F.3d 954 (9th Cir. 2002)
143 Id.
144 There is a series of cases that recognized the slave owner’s property interest in slaves, and protected that interest. See, e.g., Wilkinson v. Moseley, 30 Ala. 562, 573–77 (1857) (limiting subcontractor’s rights to employ slave in trade specified in contract); Carter v. Streator, 49 N.C. (1 Jones) 62, 63 (1856) (upholding judgment against defendant who wrongfully seized and sold slave belonging to plaintiff). When other people injured slaves, those people were liable to the owners. See, e.g., Seay v. Marks, 23 Ala. 532, 536–37 (1853) (permitting owner to sue contracting party for value of slave who was killed while engaged in activity not covered by the contract); Harrison v. Lloyd, 17 S.C.L. (9 Rich.) 161, 166–67 (S.C. 1851) (providing that slaveowner may recover value of slave who was wrongfully killed while in custody of defendant); Lacoste v. Pipkin, 11 Miss. (13 S. & M.) 589, 591 (1850) (reversing judgment against defendant, but reiterating that injuring party may be liable for damage to slaves).
Moreover, courts recognized the owner’s property rights in slaves when others injured them. See, e.g., Knox v. N.C. R.R. Co., 51 N.C. (1 Jones) 415, 416–17 (1859) (placing burden of proof of cause of death on hirer and otherwise permitting suit for wrongful death); Helton v. Caston, 8 S.C.L. (2 Bail.) 95 (S.C. 1831) (permitting suit by owner against contractor who beat slave). Such cases illustrate the well-developed rules around slave labor as property and the liability of whites who abused slaves to slave owners. Those rules establish a complex network of duties among whites and illustrate the relationship of white owners, white non-owners, and slaves. That world of property relationships established that, while owners might have virtual license to treat their slaves however they would like, whites who “rented” slaves from their owners were responsible to the owners for harm to the slave.
145 See Laycock, supra note 99, at 1279 (observing that restitution is both a recovery for unjust enrichment and a measurement of enrichment). There are several instances in which to invoke restitution, for example, when it provides a substantive basis for recovery. That is the case for those who claim restitution based on their ancestors’ work with pay. Alternatively, there may already be a basis for recovery—such as tort—but the measure of damages is inadequate or difficult to prove. For example, it may be impossible to show amount of harm. Restitution provides a concrete, though often rather limited, measure of harm. See, e.g. Olwell v. Nye & Nissen Co., 26 P.2d 282, 286 (Wash. 1946) (holding that for an action in restitution, respondent is entitled to the measure of restoration that accompanies the remedy).
146 I have suggested how this claim might work against a charitable organization that is the beneficiary of a gift by a slaveholder. There is still a problem with the statute of limitations. See Brophy, supra note 10, at 514–15.
147 See 1 George Palmer, Law of Restitution � 2.20 (1978).
148 See U.S. for Use of Palmer Constr., Inc. v. Cal. State Elec., 940 F.2d 1260, 1262 (9th Cir. 1991).
149 Such cases are limited, but on occasion either constructive trust or equitable liens can be used to trump a prior, bona fide purchaser or creditor.
150 Manning Marable, 40 Acres & A Mule: The Case for Black Reparations, Remarks at the Paul Robeson Lecture, Columbia Law School (Feb. 27, 2003), available at http://www.law. columbia.edu/law_school/education_tech/streaming/video_1 (last visited Nov. 12, 2003).
151 Ralph Ellison, Juneteenth 271 (John F. Callahan ed., 2000) (1999).
[T]here are facts and there is truth; don’t let the facts ever get in the way of your recognizing and living out the truth. And don’t get the truth confused with the law. The law deals with facts, and down here the facts are that we are weak and inferior. But while it looks like we are what the law says we are, don’t ever forget that we’ve been put in this position by force, by power of numbers, and the readiness of those numbers to use brutality to keep us within the law. Ah, but the truth is something else. We are not what the law, yes and custom, says we are and to protect our truth we have to protect ourselves from the definitions of the law. Because the law’s facts have made us outlaws. Yes, that’s the truth, but only part of it; for Bliss, boy, we’re outlaws in Christ and Christ is the higher truth.
Id. at 354.
152 Id. at 308.
153 See Cook, supra note 86, at 981. I wonder whether Cook’s suggestions actually will achieve his goal. While he speaks a language of love, his demands run all one way: towards more payments to the African-American community. Much is owed; however, articles that demand payments in the name of love and yet offer no forgiveness in return—or even the suggestion of forgiveness—are, at best, incomplete.
154 Ellison, supra note 151, at 271.
155 Id. at 19.
156 Id. Sunraider’s—Ellison’s—answer to the second question is to remember that:
[G]iven the nature of our vision, of our covenant, to remember is to forget and to forget is to remember selectively, creatively! Yes, and let us remember that in this land to create is to destroy, and to destroy—if we will it so and make it so, if we pay our proper respect to remembered but rejected things—is to make manifest our lovely dream of progressive idealism.
Id. at 19–20. Ellison works out some of his themes of selective history in his essay, Going to the Territory. See Ellison, supra note 14, at 595–96.
157 See Richard W. Stevenson, Bush, in Africa, Promises Aid but Offers No Troops for Liberia, N.Y. Times, July 9, 2003, at A8.
158 Ralph Ellison, Invisible Man 432 (Modern History ed. 1992) (1952). Ellison is talking about the execution of brother Tod Clifton and how the knowledge of the true history is erased by the failure to record it:
I tried to step away and look at it from a distance of words read in books, half-remembered. For history records the patterns of men’s lives. . . . All things, it is said, are duly recorded—all things of importance, that is. But not quite, for actually it is only the known, the seen, the heard and only those events that the recorder regards as important that are put down, those lies his keepers keep their power by. But the cop would be Clifton’s historian, his judge, his witness, and his executioner, and I was the only brother in the watching crowd. And I, the only witness for the defense, knew neither the extent of his guilt nor the nature of his crime. Where were the historians today? And how would they put it down?
Id.
159 Nozick’s description has captured much attention. It is quoted in Jeremy Waldron, Redressing Historic Injustice, 52 U. Toronto L.J. 135, 144 (2002) and Gregory S. Alexander, The Limits of Property Reparations 5 (Soc. Sci. Research Network, Working Papers Series, 2003), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=404 940. See Ernest J. Weinrib, Corrective Justice, 77 Iowa L. Rev. 403, 412 (1992).
160 The thing to think about in this context may not be where an individual descended from enslaved people would be without the slavery, but how much harm has that individual suffered? In the former calculus, the question involves complex issues of proof of where someone might have ended up. The later calculus involves only questions of how much one has been disadvantaged.
161 See John Greenleaf Whittier, Maud Muller, in The Complete Poetical Works of Whittier 48 (1848) (“For of all sad words of tongue or pen, The saddest are these: ‘It might have been!’”).
162 See, e.g., Okla. Stat. Ann. tit. 74, � 8000.1 (West 2002) (providing legislative findings about the Tulsa Race Riot). The findings are reprinted as an appendix to this Article. See pages 137–38, infra.
163 Cf. Ellison, supra note 14, at 595.
164 See Charles J. Ogletree, Jr., Tulsa Reparations: The Survivors’ Story, 24 B.C. Third World L.J. 13, 23–24 (2004) (discussing the challenges faced by reparations suits that target corporations); Fran Spielman, Company Admits Its Ties to Slavery, Chi. Sun-Times, Nov. 24, 2003, at 9 (discussing the recent disclosure by Lehman Brothers that it purchased a slave in 1854, and that its principals may have owned other slaves as well).
165 See Joseph William Singer, Entitlement: The Paradoxes of Property 194 (2000).
166 For further discussion of the conflict over the goals of reparations and the ability of reparationists to meet those goals, see Alfred L. Brophy, The Cultural Wars over Reparations for Slavery, 59 DePaul L. Rev. (forthcoming 2004).