The Jurisprudence of Slavery

BC Third World LJ, 2004

Abstract: This Article exanshies the current landscape of reparations for slavery. identifihig the contotuts of reparations lawsuits and exploring the ability of tort law to help apportion moral culal) bility hi tile reparations context. It first exambies several possibilities for ...

The revised and published edition of this Bepress Submission Draft can be found at: “Restorative Justice, Slavery and the American Soul,” Thurgood Marshall Law Review, Volume 31, No. 2, pp. 253-322, Spring, 2006. https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=31+T.+Marshall+L.+Rev.+253&srctype=smi&srcid=3B15&key=aebcda52899b17c51a49f3ff2d790842

Roma Tre Law Review, 2019

Within the wider phenomenon of so-called ‘juridification’ of historical wrongs, the paper examines the role of private law as a tool for restorative justice. Whereas the use of private law and its remedies (such as contract, tort, unjust enrichment) as instruments for “reparation” may appear to be at odds with the functions of restorative justice, the paper assesses extensive litigation that was brought forth in different legal systems especially as of the end of the XXth Century, and which though based on claims in private law, poses a series of specific problems that deserve attention.

SSRN Electronic Journal, 2011

This Article was part of a symposium on the rise of civil recourse theory. It contributes to this debate by defending a simple but counterintuitive claim: There is no duty to pay damages in either tort or contract law. The absence of such a duty provides a reason for believing that civil recourse provides a better account of private law than does corrective justice. Corrective justice is committed to interpreting private law as creating duties for wrongdoers to compensate their victims. In contrast, civil recourse sees the law as empowering plaintiffs against defendants. My argument is that a careful analysis of the doctrines surrounding pleading, payment of damages, accord and satisfaction, and judgments reveals that our law gives plaintiffs the power to extract wealth from defendants but does not impose duties on defendants to compensate those that they have wronged. The structure of my argument is borrowed from a much older exchange between Oliver Wendell Holmes, Jr., who thought that contract law imposed a duty to perform or pay damages, and Frederick Pollock, who denied that the payment of damages was part of the duty to keep a contract. I side with Pollock against Holmes and think that the Englishman's argument provides a useful model in the debate between corrective justice and civil recourse. * Associate Professor, William & Mary Law School. This Article grew out of a series of exchanges with Curtis Bridgeman, John Goldberg, and Benjamin Zipursky, for which I am grateful. Neal Devins, Andrew Gold, and Stephen A. Smith provided extensive and helpful comments. All errors, of course, remain my sole responsibility. As always I thank Heather. 1. Rather than defend my use of the term private law or the coherence of talking about private law as a unique field, for purposes of this Article I am using the term to refer to torts and contracts. The civil law of obligations also includes what we would call the law of unjust enrichment or quasi-contract. In this Article I do not purport to be opining on the theorization of unjust enrichment.

37 Washburn L.J. 249, 1998

2002

Discrimination and bigotry of any type is intolerable, and the enslavement of Africans by this Country is inexcusable. This Court, however, is unable to identify any legally cognizable basis upon which plaintiff’s claims may proceed against the United States. While plaintiff may be justified in seeking redress for past and present injustices, it is not within the jurisdiction of this Court to grant the requested relief. The legislature, rather than the judiciary, is the appropriate forum for plaintiff’s grievances.

Journal of Law and Politics, 2006

I. Introduction "We will have to repent. .. not only for the vitriolic words and actions of the bad people, but for the appalling silence of the good people." [FN1][FN1] The twentieth century ended with the vindication of many of its most mistreated victims' cries for reparation. [FN2][FN2] Holocaust survivors retrieved over $8 billion in assets frozen in bank accounts or looted by the Nazis; [FN3][FN3] Japanese Americans interned during World War II received compensation from the U.S. government; [FN4][FN4] Chile compensated descendants of Pinochet's victims; [FN5][FN5] Japan redressed Korean "comfort women"; [FN6][FN6] and Canada paid damages to Aboriginals for forced assimilation of their children. [FN7][FN7] Absent from the list was the longest suffering and most visible of groups seeking repair-African Americans. [FN8][FN8] *184 Embarrassed by the satisfaction of these other victims' claims, opponents of Black reparations are left to find a legitimate ground upon which to distinguish the claims of contemporary African Americans. To this end, they construe the 140-year-long failure to offer repair not as the egregiously lengthy omission that it is, but instead as the feature that would render moot any entitlement to redress. [FN9][FN9] Thus, the common rejoinder to pleas for Black reparations has opponents protesting that they never owned slaves, and so they should not be made to pay for those who did. [FN10][FN10] *185 Besides, they continue, the slaves are long dead and the effects of slavery now nonexistent, [FN11][FN11] so there would not be anyone who could legitimately claim compensation anyway. [FN12][FN12] The opposition to Black reparations thus focuses on the temporal dislocation between slavery and the present, but the argument loses none of its force when applied to more recent injustices. After all, "righteous gentiles" in Germany did not exterminate Jews; [FN13][FN13] most Japanese never availed themselves of the "comfort" of Korean prostitutes; [FN14][FN14] and many Chileans ardently resisted Pinochet's rule. [FN15][FN15] If opponents of Black *186 reparations are correct to insist that an individual may be held responsible, and hence liable, only for transgressions in which he participated directly, then none of these reparations programs is justifiable. Supporters of Black reparations, or "reparationists," [FN16][FN16] have largely remained silent in the face of this challenge to their campaign. [FN17][FN17] Instead, the recent reparations literature is rife with internal debates regarding whether legal claims should be framed in the language of compensation or restitution;

2012

Abstract: In the past decade, civil recourse theory has emerged as an important way of thinking about tort law as individual justice, and private law more broadly. But it has also been criticized as lacking an adequate normative foundation. On its face, the right to civil ...

2006

The growing body of literature on reparations consists primarily of articles showing that black reparations are consistent with various legal theories, promote racial justice, or further broader societal goals like eliminating poverty and promoting education. This article takes the distinct position of challenging reparations supporters to justify their conªdence in the legal system to deliver meaningful reparations for slavery and segregation in light of the historic use of law as a means of instantiating white racial supremacy and the prospective individualistic approach to race adopted by contemporary judges and legislators. The article also challenges those who oppose reparations based on its supposed unfairness to contemporary citizens to explain how their position differs from that of past generations who opposed reparations and related legal efforts to redress racial injustices as unfair at that time. To support the challenge to reparations commentators, the article examines the historical framework of blacks' relationship to the law through legislation and court rulings from 1619-1963. The article closes by presenting an alternative approach to reparations focused on building and strengthening black political, economic, and educational institutions.