Is There A Moral Justification For Redressing Historical Injustices?

In recent years, there have been lively popular and academic debates in the United States and elsewhere about whether injustices committed decades or even centuries ago should be redressed through official apologies, commissions of inquiry, reparations, and restitution. In the American context, the historical injustices for which redress has been pursued, and in some cases granted, include the internment of Japanese Americans during World War II, the Holocaust, and the mistreatment of Native Americans. Recently, the most prominent debate in the United States has been about whether federal and state governments and corporations should pay reparations to African Americans for slavery and subsequent discrimination. Indeed, in the past few years, several major books have been published advocating reparations for African Americans, numerous law reviews have held symposia on the idea, and many stories have appeared on the subject in print and television media. This Article examines whether there is a moral justification for redressing historical injustices, focusing on debates in the American context. Perhaps because the legal case for redressing historical injustices is often weak, many supporters of redress advance moral arguments. For example, proponents argue that redressing historical injustices is necessary to deter future wrongdoing or to promote a more just distribution of societal resources. More frequently, they emphasize the injustice of the original wrong and argue that there is a continuing obligation to correct it. I argue that notwithstanding the prominent role that moral arguments play in these claims, it is difficult to justify redress for historical injustices in moral terms. This does not mean that redress never is morally warranted. But the difficulty of making a strong moral argument for redressing historical injustices is instructive. In particular, it helps to explain why redress has not been implemented in many instances notwithstanding extensive public debate and why, when redress has been implemented, it often has been on a relatively limited scale. In addition, the moral complexity of claims for redressing historical injustices raises a fundamental question about the value of the time and resources that have been devoted to debating the redress of historical wrongs. This Article proceeds as follows. Part I provides some background for analyzing the moral justifiability of redressing historical injustices. It attempts to define what a historical injustice is by specifying the characteristics shared by many of the events to which the term is applied. in the United States. In addition, it discusses how claims for redressing historical injustices are advanced and the range of motivations for bringing claims and remedies requested

Unilateral Steps to End High Seas Fishing

In discussions about the overexploitation of the vast oceans that lie beyond national jurisdiction, one bold proposal is to close fishing entirely on the high seas. Existing research suggests that converting the high seas into a giant reserve for fish might increase overall global fish catches by boosting fish catches within the adjoining areas of the oceans under national control. This conversion also might help to protect marine biological diversity, which is particularly important in an era of climate change. This Essay identifies the potential that the United States—a significant importer of high seas fish—might unilaterally take steps to end fishing on the high seas, using its market leverage. This Essay then analyzes the advantages and disadvantages of taking unilateral steps to end fishing on the high seas and the conditions under which the United States might take such steps

Problematic Private Property: The Case of New York Taxicab Medallions

Yellow taxicabs are an iconic symbol of New York City. Almost as well-known as the City\u27s yellow taxis are the valuable licenses that vehicles must have in order to be used as taxis. Often called medallions, these licenses constitute a form of private property. They are routinely bought and sold, leased, used as collateral for loans, and count as assets in bankruptcy. This Article emphasizes the political character of property rights in the modern state through a case study of why New York taxi medallions continue to exist. Prominent explanations of the evolution of property rights imply that they are a distinct category of rights that emerge organically within society because their benefits exceed their costs. This Article takes a decidedly more regulatory view of property rights as top-down creations of the state. As instruments of the state, property rights arise and persist from political decision-making processes influenced by interest group pressures. This avowedly regulatory conception of property rights suggests that we likely have both efficient and inefficient property rights because there is no necessary correspondence between what is cost-beneficial for society as a whole and the outcomes of political decision-making processes. This Article argues that New York taxicab licenses are an instance of inefficient private property rights sustained by political decision-making processes subject to pressures from powerful interest groups

In Defense of the Fee Simple

Prominent economically oriented legal academics are currently arguing that the fee simple, the dominant form of private landownership in the United States, is an inefficient way for society to allocate land. They maintain that the fee simple blocks transfers of land to higher value uses because it provides property owners with a perpetual monopoly. The critics propose that landownership be reformulated to enable private actors to forcibly purchase land from other private owners, similar to the way that governments can expropriate land for public uses using eminent domain. While recognizing the significance of the critique, this Article takes issue with it and defends the fee simple. The Article makes two main points in defense of the fee simple. First, addressing the critique on its own economic terms, the Article argues that the critics have not established that there is a robust economic argument for dispensing with the fee simple. The critique that the fee simple leads to the misallocation of land rests on three empirical premises for which the critics have yet to provide much evidence. The critique also downplays or overlooks important economic benefits of the fee simple. Second, departing from the economic discourse of the critics, the Article argues that the fee simple is valuable because it gives landowners a perpetual right to choose, free from the dictates of others, whether to transfer their land. Thus the fee simple expands the choices of landowners and promotes their independence and autonomy. Eliminating the fee simple would leave landowners vulnerable to the whims of others, and less free and autonomous. Landownership is not only about efficiency, but also about individual freedom

Limiting the National Right to Exclude

This essay argues that the robust right to exclude that nation states currently enjoy will be harder to justify in an era of climate change. Similar to landowners, nation states have virtual monopolies over portions of the earth. However, the right of landowners to control who enters their land is considerably more constrained than the right of nation states to control who enters their territory. Climate change will alter the areas of the earth suitable for human habitation and the broad right of nation states to exclude will be more difficult to justify in this new environment

Migrating Boundaries

The boundaries between land parcels usually are assumed to be static and unchanging. However, not all land borders are stable. An important land boundary that routinely ambulates is the border between what is publicly and privately owned along U.S. coastal shores. This coastal boundary recently has been the subject of renewed attention from the courts, scholars, and even the popular press in the wake of Hurricane Sandy. This Article offers an economic analysis of why the boundary generally ambulates, rather than remaining perpetually fixed as land borders usually are assumed to do. It also considers whether the legal border generally should continue to migrate in an era of sea level rise due to climate change

Migrating Boundaries

The boundaries between land parcels usually are assumed to be static and unchanging. However, not all land borders are stable. An important land boundary that routinely ambulates is the border between what is publicly and privately owned along U.S. coastal shores. This coastal boundary recently has been the subject of renewed attention from the courts, scholars, and even the popular press in the wake of Hurricane Sandy. This Article offers an economic analysis of why the boundary generally ambulates, rather than remaining perpetually fixed as land borders usually are assumed to do. It also considers whether the legal border generally should continue to migrate in an era of sea level rise due to climate change