Too Big to Remedy - Rethinking Mass Restitution for Slavery and Jim Crow

Slavery and Jim Crow inflicted horrific harms on Blacks in America. Official silence aggravated that harm, as neither victims nor their descendants received monetary restitution, nor even (until very recently) any official apology. Reparations advocates have repeatedly called for compensation to slave descendants. But how exactly does society compensate for slavery? Of course, compensation for mass injustice is always difficult to calculate and administer. Slavery puts the normal concerns of mass compensation into sharp relief and adds a whole new set of unique concerns for courts, legislators, and scholars. In this Article, I use slavery and Jim Crow harms as a case study to examine some of the difficult questions that arise in mass restitution cases. I argue that some reparative action is needed in the case of slavery and Jim Crow; the longstanding lack of response only reinscribes injury. However, traditional tort compensation is inadequate. Victims cannot be truly compensated-only symbolic restitution is possible. Ultimately, slavery and Jim Crow seem too big to remedy under the legal system. Because true restitution is impossible, we must consider other options based on our ideas of justice. Thus, responding to slavery challenges us to rethink both the goals of restitution and our underlying conceptions of justice. Reparative measures, while they cannot make victims whole, can play important roles in society and benefit victims in other ways. I examine how the goals of restitution can be advanced though various non-tort or otherwise non-traditional approaches, including restorative justice and atonement, microreparations and apology, storytelling, and the traditional Hawaiian remedy of ho\u27oponopono. Just as some insurance companies may be viewed as too big to fail, are there some mass harms that are simply too big to remedy ? This Article examines that question using the lens of claims arising from slavery and Jim Crow

\u27\u27Get Your Asphalt Off My Ancestors!\u27\u27: Reclaiming Richmond\u27s African Burial Ground

By treating spatial conflict as one way communities wrestle with the memory and legacy of slavery, this article unites critical landscape analysis, a tool of legal geography, with legal and cultural analysis and recent scholarship on African American reparations. A slave cemetery lay beneath a parking lot in Shockoe Bottom, a neighborhood of downtown Richmond that was once a major slave-trading hub. In recent years, controversy arose over the site’s use, generating racially charged local debate and two failed lawsuits seeking to preserve the site. This article examines the significance of the African Burial Ground controversy by analyzing its symbolic, discursive, spatial, and legal dimensions. Although the law ostensibly protects ancestral graves from desecration, it demands that a plaintiff demonstrate biological descent from the interred in order to make a claim; as this case demonstrates, standing is denied to those whose family histories were obliterated by slavery. I argue that the plaintiff’s lack of standing before the law, which is rooted in slavery, cannot be separated from other, social and political forms of illegitimacy historically inscribed upon African Americans. Here, claims of desecration were relegated to the political arena, where redress was possible but subject to the vagaries of local, state, and national racial politics. Community activists, unable to protect the Burial Ground through the force of the law, instead mobilized the spectacle of the law, and achieved a surprising out-of-court resolution to the conflict

Causation and Attenuation in the Slavery Reparations Debate

The success or failure of slavery reparations will depend on causation. Many criticisms of reparations have focused on the attenuated nature of the harm, suggesting that modern claimants are not connected to slaves, that modern payers are not connected to slave owners, and that harms suffered by modern Blacks cannot be connected to slavery. This Article examines these attenuation concerns and finds that they come in three related but distinct varieties: Victim attenuation, wrongdoer attenuation, and act attenuation. These three components, defined in this Article, show themselves in a number of interrelated arguments. The Article then discusses how ideas about causation from the mass tort context can help address the problems of attenuation in slavery reparations. Mass tort cases have developed novel methods of showing causation, such as statistical evidence and market share liability, and these tools can be used in the reparations context. These concepts, if used within the reparations context, could help overcome attenuation

Causation and Attenuation in the Slavery Reparations Debate

Recent discussions of reparations have noted the difficulty reparations advocates have in showing causation. Criticisms of reparations have focused on the attenuated nature of the harm, suggesting that modern claimants are not connected to slaves, that modern payers are not connected to slave owners, and that modern disadvantages cannot be connected to slavery. This Article examines attenuation concerns and finds that they come in three related but distinct varieties: Victim attenuation, wrongdoer attenuation, and act attenuation. These three components, defined in this Article, show themselves in a number of interrelated legal and moral arguments. They have important strategic consequences, and operate together to create a formidable obstacle for reparations. This Article then discusses how ideas on causation from the mass tort context can address legal problems of attenuation in reparations. Mass tort cases have developed novel methods of showing causation, such as statistical evidence, and these tools can be used in the reparations context. By using the tools of mass torts, it is possible for reparations advocates to show causation

Re-Assembling Osiris: Rule 23, the Black Farmers Case, and Reparations

This Article examines why the Black Farmers case, a series of legal events involving claims of racial discrimination by African-American farmers against the federal government, may technically qualify as a slavery reparations case. This Article also explores how the case became a viable slavery reparations case in a legal and political environment hostile to race-based claims and fatal to slavery reparations-related litigation. In doing so, this Article offers a legally cognizable definition for slavery reparations and a viable path for future reparations-related litigation. The procedural mechanisms at play in the Black Farmers case substantially reduced the barriers between race-aggrieved status and recovery. This Article posits that a close relationship between raceaggrieved status and recovery and central to any definition of reparations. One procedural mechanism that helps to convert the Black Farmers case into a slavery reparations case is the highly controversial class action device. Commentators critical of the class action device argue that the coercive force of class actions gives plaintiffs inordinate power to force the settlement of meritless claims. This Article suggests that the class action device was used in the Black Farmers case not to circumvent merit, but to vindicate it