"Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations?" (excerpt) by Robert Westley Associate Professor, Tulane University Law School Compensation to Blacks for the injustices suffered by them must first and foremost be monetary. It must be sufficient to indicate that the United States truly wishes to make Blacks whole for the losses they have endured. Sufficient, in other words, to reflect not only the extent of unjust Black suffering, but also the need for Black economic independence from societal discrimination. No less than with the freedmen, freedom for Black people today means economic freedom and security. A basis for that freedom and security can be assured through group reparations in the form of monetary compensation, along with free provision of goods and services to Black communities across the nation. The guiding principle of reparations must be self-determination in every sphere of life in which Blacks are currently dependent. To this end, a private trust should be established for the benefit of all Black Americans. The trust should be administered by trustees popularly elected by the intended beneficiaries of the trust. The trust should be financed by funds drawn annually from the general revenue of the United States for a period not to exceed ten years. The trust funds should be expendable on any project or pursuit aimed at the educational and economic empowerment of the trust beneficiaries to be determined on the basis of need. Any trust beneficiary should have the right to submit proposals to the trustees for the expenditure of trust funds. The above is only a suggestion about how to use group reparations for the benefit of Blacks as a whole. 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. My own beliefs about what institutions Black people need most certainly will not reflect the views of all Black people, just as my belief that individual compensation is not the best way to proceed probably does not place me in the majority. Everybody who could just get a check has many reasons to believe that it would be best to get a check. On this point, I must subscribe to the wisdom that holds, if you give a man a loaf, you feed him for a day. It is for those Blacks who survive on a "breadconcern level" that the demand for reparations assumes its greatest importance. Citation: Westley, Robert. "Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations?". Boston College Law Review, December 1998, Volume XL, Number 1. "If the Shoe Fits, Wear It: An Analysis of Reparations to African Americans" (excerpt) by Vincene Verdun Associate Professor, The Ohio State University College of Law This almost constant plea for reparations over the past one hundred and thirty years appears mysterious and even irrational from the perspective of many Americans. The perception among many that reparations are threatening or ineffective is revealed in a number of contradictory arguments, for example: 1) reparations are unlikely ever to be awarded, after all, no relief has been given for the past one hundred and thirty years; 2) reparations are undeserved by African Americans since all ex-slaves have been dead for at least a generation; 3) white Americans living today have not injured African Americans and should not be required to pay for the sins of their slavemaster forbearers; 4) it is impossible to determine who should get what and how much; and 5) African Americans must become self-reliant and determine their own fate and stop waiting for relief from external sources. Opponents of reparations to African Americans are so overwhelmingly entrenched in the rightness of their position that they conceptualize the cry for reparations as frivolous, meritless, and divisive. However, the reparations movement cannot be easily dismissed or discredited, in part because so many of its supporters are part of the American mainstream. For the same reason, the movement cannot be classified as radical or extremist. A movement that has been sustained through several generations and that has won the support of knowledgeable and reputable people throughout history, including members of Congress, business people, professionals, academicians, attorneys, educators, and other hard working people cannot be dismissed as frivolous. Proponents of reparations pursue their cause with fervor equivalent to that of its opponents and stand firm in their assertion that the reparations given to Jews by Germany, and to Native Americans and Japanese Americans by the United States, set precedents for the payment of reparations to African Americans. The moral basis for reparations is simply stated: 1) slaves were not paid for their labor for more than two hundred and sixty-five years, thereby depriving the descendants of slaves of their inheritance; the descendants of the slavemasters inherited the benefit derived from slave labor, which properly belonged to the descendants of slaves; 2) the United States Government promised ex-slaves forty acres and a mule and did not make good on that promise; and 3) systematic and government-sanctioned economic and racial oppression since the abolition of slavery impeded and interfered with the self-determination of African Americans and excluded them from sharing in the growth and prosperity of the nation. Unfortunately, the proponents and opponents of reparations maintain diametrically opposed points of view, and both groups are deeply entrenched in the correctness of their beliefs. Reasonable people may differ on any topic, but when two groups of people from the same society assume such polar positions on an issue, the foundation of such opposition is usually traceable to some basic normative difference. For example, the underlying normative difference in the abortion debate between pro-choice and pro-life advocates is the belief by pro-life advocates that abortion is sinful or wrong - a belief that is usually grounded in religious or biblical principles so deeply imbedded in the perception of the believer that there is no room for compromise. Pro-choice advocates, who do not perceive abortion as a sin or wrong and who do not share the beliefs of the pro-life advocates, stand firm in their protection of the rights of individuals to make their own decisions. Likewise, opponents and proponents of reparations approach the issue of reparations from two distinct perspectives that are based on differences in the beliefs imbedded in the perception of each group. Opponents of reparations, who are usually white, frequently approach the issue of reparations from the dominant perspective - a system of values and perceptions common to the group that exercises economic, political, and ideological control over society. Proponents of reparations, most often African Americans, evaluate reparations on the basis of a consciousness - the African-American consciousness - spawned from generations of survival as an oppressed people in a hostile environment and rooted in the heritage of the African culture, which survived the trip across the Atlantic Ocean and the institution of slavery. The differences in these two value systems and the perspectives they engender form the foundation for the polarity between opponents and proponents of reparations. Citation: Verdun, Vincene. "If the Shoe Fits, Wear It: An Analysis of Reparations to African Americans". Tulane Law Review, February 1993, Volume 67, Number 3, p. 607-610. "FORTY ACRES AND A MULE" POSTPONED December 5, 1995 A federal appeals court has ruled that African-Americans cannot sue the government for damages resulting from slavery. The 9th U.S. Circuit Court of Appeals, in a 3-0 ruling, said that the seven plaintiffs failed to point to specific government actions that violated their rights. "The bottom line is it will be very unlikely for blacks to get the courts to look at this kind of lawsuit because it is difficult to show the nexis between damage and a particular government action," says TIME's Adam Cohen. "If the courts were to decide this case, the monetary damages would be huge and would open up the floodgates for an enormous redistribution of wealth.  Have Comments to share? Discuss this topic and more with other people. [Join the Conversation] The courts are more comfortable leaving these matters up to the legislative branch. Also, the political climate, which has low tolerance for things like affirmative action right now, isn't exactly ripe for this kind of lawsuit." The suit, which was drafted by the Reparations Committee for African Americans, sought more than $100 million. Trial Lawyers Ready Suit on Racial Reparations PALM BEACH, Fla. -- Trial attorney Willie Gary and other top legal strategists are considering legal action that could make them the most beloved -- and hated -- men in America. Potentially the biggest lawsuit in American history, it would force today's generations to pay for slavery and its aftermath. Though key questions have yet to be answered -- such as when, where, how and who -- the final chapter of America's most peculiar tragedy could be written in court, rather than Congress, with Gary and other high-octane trial lawyers playing the protagonists. "I think the nation will be better off for having dealt with this issue," said Gary, the 53-year-old son of an Indiantown sharecropper who recently won a $240 million verdict against The Walt Disney Co. "Otherwise, it's like pain without ending. It's always going to be there." If successful, the lawyers win trillions of dollars for American blacks and go a long way in making amends for slavery. But they also could inflame racial tensions -- and divide blacks who suddenly get to decide who benefits and who does not. Each lawyer has considered a racial reparations suit on his own, but now for the first time they are talking about a common strategy. They met last month in Washington, D.C., at Transafrica, a lobby that monitors U.S. policy in Africa and the Caribbean, and plan to continue meeting monthly until a strategy is formed. "We can't resolve all of the issues that will be raised at this point," said Gary, chairman and chief executive of Atlanta-based Major Broadcasting Cable Network, a TV channel that caters to black Americans. "A lot of them will have to be resolved judiciously along the way." Besides Gary, participants include Alexander Pires of Washington, who won a $1 billion settlement for black farmers in a discrimination case against the U.S. Department of Agriculture; Richard Scruggs of Pascagoula, Miss., who won the $368.5 billion settlement for states in their suit against tobacco companies three years ago; and Dennis Sweet of Jackson, Miss., who won a $400 million settlement in the fen-phen diet drug case last year. Famed Los Angeles attorney Johnnie Cochran, Harvard Law School professor Charles Ogletree and Randall Robinson, who has written a new book on racial reparations titled "The Debt," are leading discussions. "There is going to be a reparations case. It's just a matter of where it's going to go," said Sweet, who also plans to sue history book publishers that give blacks short shrift. "You're starting to get a lot of black lawyers who are in the position to do this kind of stuff," he said. Skeptics will point to other racial reparations suits that have failed and to numerous legal hurdles, including sovereign immunity for the federal government and a six-year statute of limitations on federal cases. Further, some will say the courts are the wrong place to talk about slavery. "I think this is yet another example of a very dangerous tendency to turn to the courts to solve all of our social problems," said Daniel Troy, a constitutional lawyer in Washington and a scholar at the American Enterprise Institute, a conservative think tank. "How do you even begin to address what reparations are owed to the great-great-great-grandchildren of slaves?" Troy said. "My grandfather came here in 1920. Why should I have to pay reparations for slavery? Is anyone paying reparations for discrimination he suffered in Russia? There's no end to this game." Even the lawyers are cautious. "It has to be a carefully thought-out lawsuit," said Scruggs, who's now busy building a class-action suit against HMOs in Miami and is undecided on his role in the racial reparations suit. "Using the wrong theory and the wrong logic, you open the door for any minority group to bring similar action: The Irish could do it, the Jews could do it. "Like it or not, it's a huge political issue." Indeed, but the nation's politicians have refused to deal with racial reparations, said Jack Hitt, a contributing editor for Harper's Magazine who organized an August meeting in Washington with Gary, Scruggs, Sweet and Pires. Their conversation on racial reparations is included in the November issue of Harper's. Because proposals in Congress to apologize for slavery or to create a commission to study reparations have failed, a class action lawsuit might be the only way to bring the issue to the forefront, Hitt said. "We are a nation of litigators. That's what we do. We go to court," he said. "Maybe it's fitting in the end that slavery should wash up on the shores of a judge's bench." When or if the lawsuit is filed, black Americans would not be the only ones seeking reparations for past wrongs. Jews are suing Germany's government for slave labor reparations dating to the 1930s and Nazi power, and former American prisoners of war who were forced to work in mines during World War II are suing Japan's government for wages, plus interest. The racial reparations lawyers have not decided how far back in time they'll go, who they'll sue, how much money they'll seek, and who benefits if they win. They say they probably won't file just one suit, but a series of suits against the U.S. government, states, corporations and individuals who continue to benefit from slavery's aftermath. They say they'd also make the case that while slavery ended in 1865, its effects lingered long afterward through sharecropping schemes, housing discrimination, racial segregation and peonage laws. "No one can disagree that black people have suffered the most in this country," Gary said. "This is not about money. It's about stepping up to the plate and reaching out to a group of people that on this issue have been left behind." As for legal strategy, Gary has proposed a breach-of-contract suit, in which a class of plaintiffs would sue the federal government for breaking its post-Civil War promise of 40 acres and a mule for each freed slave. Getting the public to support racial reparations also would be a key component, Gary said, adding that black and white politicians and celebrities would need to be rallied. "This country has taken steps to make a lot of wrongs right, and this rates at the top," said Gary, who won a $500 million verdict in 1995 against funeral home operator The Loewen Group and now represents four plaintiffs in a racial discrimination suit against Coca-Cola. "I feel there will be more white people supporting this than you think. I think you will see the right thing done," Gary said. "We still have a lot of racial problems in this country, but we've come a long way." Do We Really Want Class-Action Lawyers Leading The Movement For Reparations? Do We Really Want Class-Action Lawyers Leading The Movement For Reparations? In the past year the debate for reparations has lurched forward in dramatic fashion. For years the subject was discussed in the abstract, usually in private or all-Black settings. That all changed a year ago with the publication of Randall Robinson's book The Debt which makes the case, rather persuasively, in the eyes of many, that reparations are due to Black Americans for slavery and its legacy. The book inspired increased discussion and mobilization among Black politicians and civic groups around the formulation of an effective strategy by which Blacks would obtain reparations in cash form or otherwise. The issue even made its way into presidential politics, if only for a month, when Robinson put his support behind Green Party presidential candidate Ralph Nader who subsequently placed reparations, which he referred to as "restitution", in his platform for president. BlackElectorate.com interviewed both men about their decision to support the call for reparations. As Nader only managed 3% of the popular vote for president, and because Al Gore offered quiet sympathy for the issue and Bush ignored it altogether, the Black community found itself after the election, with increased popular support for the issue but with little political support to go with it. And possibly most disappointing of all - a result of the Democrats' failure to take back control of the House of Representatives was that the leading advocate of reparations in the Black political establishment, Rep. John Conyers (D-MI), was not able to assume the chairmanship of the House Judiciary Committee where his bill that would mandate a Congressional study of reparations has languished for several years. For years, in the Black community, the issue of reparations has been seen as a political issue to be handled, eventually, and directly, by the US Congress. But in recent months the issue has begun to be viewed as one that may be best handled in the courts with a group of high-profile lawyers filing a class-action lawsuit against either the federal government, state governments, corporations that profited directly from slavery or individuals and families that accumulated and inherited wealth that derived from slave ownership and trading. The new strategy became public knowledge when Harper's magazine ran a cover story in its November issue that was a running conversation between several class-action lawsuit lawyers who have had success with these types of lawsuits, on other issues. The participants in the conversation look like a legal all-star team. Present were Wille E. Gary who won a $500 million judgment against The Loewen Group Inc.; Alexander J. Pires Jr. who won a $1 billion settlement for Black farmers against the US Department of Agriculture; Richard F. Scruggs who won a $368.5 billion settlement against the tobacco company; and Dennis Sweet who won a $400 million settlement in the "fen-phen" diet case. This new development and discussion has caused both reparations supporters and opponents to raise eyebrows as both sides recognize that a class-action lawsuit on behalf of Black Americans changes the dynamics of the reparations debate altogether. We think that the latest development in the reparations drama has had a positive impact in increasing awareness of the issue and in raising the quality of the dialogue over the issue but we also have recognized a danger for those of us who think that reparations are deserved and can eventually be obtained. The problem with moving the reparations fight out of the political arena and into the realm of the courts is that the political arena allows one to make new laws and remedies while fighting within the legal system forces one to fit one's case into legal precedents and existing statutes and laws that are ill-equipped to handle an issue as unique and vast as reparations. Several legal questions immediately jump out as one ponders suing for reparations. And the legal "dream team" has already recognized many of these problems. According to Brooklyn Law School Professor, Anthony J. Sebok, there are some major problems with seeking reparations through a class-action lawsuit. Most obviously, Professor Sebok points out that the federal government has sovereign immunity and actually has to agree to allow itself to be sued. How likely is that? Professor Sebok also believes that states are covered by sovereign immunity as well. If Sebok is correct then half of the potential categories of defendants have been eliminated. Next on the list of potential reparations defendants would be individuals and corporations. Prof. Sebok believes that individuals make for difficult potential defendants because of the difficulty in finding and tracking the actual transfer and inheritance of wealth among slave holding families. That is not to say that such efforts cannot be successful. But how much would they yield when compared to the millions of Blacks who are descendants of slaves in this country? Corporations make for the easiest target, Sebok believes because they have easily accessible records, huge cash reserves, are prone to public pressure and fall under successor corporation laws that make it easier to sue a company that obtained part of its wealth from slavery and which has been sold or merged numerous times. Adding up the corporations and wealthy individuals and families that can be connected to slavery sure doesn't hold much promise for Blacks who are seeking a significant settlement for slavery and its legacy. And there is a remaining problem in that the crimes of slavery like false imprisonment, assault, battery and kidnapping have statute of limitations attached to them leaving the victims or their survivors only a six-year window in which to file claims. That presents a problem for the part of the reparations suit that deals with slavery from 1555 until the 19th century. That is not to say that this tort problem cannot be gotten around. There are three possible ways to get around it. The first would be to change the statute of limitations laws as Sebok points out California did in reference to Holocaust-related lawsuits. The other option would be to take the claims to international court where it is recognized that those who commit crimes against humanity must make reparation. There are several cases where reparations have been made under international law. In 1952, the Federal Republic of Germany paid Israel $222 million; Japan has made payments to South Korea and of course, most recently the United Nations Security Council passed a resolution, binding in international law, requiring Iraq to pay reparations for its invasion of Kuwait. Third, the nature of the claim could be changed from a tort claim to an unjust enrichment claim. This type of claim focuses on the stolen property that was obtained through the commission of torts. It focuses on returning lost property or its financial equivalent to the rightful owner(s). But all three options have major challenges. Changing the statute of limitations by law again returns the matter into a political affair across state lines, with no guarantees for success, that may draw the resolution of cases out for years upon years and which may result in a minority of Blacks in certain states receiving compensation before others. The international court approach has its major drawbacks in that currently there may be no international court of law in which a reparations claim could be made. This is because the International Court of Justice, for instance, is set up to hear claims by one state against another. In the case of an international reparations argument there are numerous Blacks in Africa and the Western Hemisphere in several countries who have a legitimate claim for reparations. What "state" would represent them? A possible resolution to this problem could occur if the Organization of African Unity OAU is successful in its plans to form a "United States of Africa" which would merge 54 African nations into one union. If this occurred it would be possible for all of Africa to make a claim against the US, England, France, Spain and Portugal, for example. In America, if a group of Blacks were to separate and form a new nation, they too could have their case for reparations recognized in international court. This is what happened with Israel in 1952. At the time they were a new nation made up of survivors and the descendants of the holocaust, yet received financial compensation from Germany and receive the same today. They are a new state, that in a court of law, could represent a people seeking reparations for crimes committed before the state in which they now live was established. The third option of an unjust enrichment is maybe the most powerful argument against a class-action strategy. By moving the argument away from the crimes of slavery and toward the property that was transferred as a result of the crimes, the suffering of the slaves and their descendants is marginalized and even trivialized. As Professor Sebok writes, "…to call the wrong of slavery a failure to pay for forced labor is to suggest that the wrong of slavery is that, after they were kidnapped, beaten, and abused, Africans and their descendants were not salaried." And it is this argument that points to the real crux of the reparations debate. The bottom line is that nothing can be done by any government on this earth to restore the health, heart, mind and souls of Blacks that were damaged and destroyed as the direct result of slavery. The best that can be sought from external powers is justice, under the law, and a measure of equity. In a very real sense there is a tremendous difference in seeking justice for reparations and equity for reparations. Blacks often claim to seek both but in this case it may not be possible to obtain both - in either US courts or international courts. Justice under the law can be provided by the successful pursuit of class-action lawsuits, most likely filed against individuals, families and corporations but is that really fair, in the ultimate sense? Is such a lawsuit fair to the numerous Blacks who will not obtain any benefit from the limited resources that can be obtained from these few individuals, families and corporations? Is it fair to the few who are "caught" - who have to bear the burden of several generations while their "guilty" peers who profited from slavery but escaped detection by circumstance. We believe that justice to both Black and White cannot occur under such an arrangement. While it is tempting to get whoever can be found, that is not fair or just in the sense that the word equity applies. Justice, in this case, deals with the proper administration of laws that are on the books while equity deals with justice administered according to fairness, and even a divine standard of right and wrong, above and beyond what is on the books of national or international court. The legal maneuvering necessary to "win" a class-action lawsuit does not ensure that atonement, reconciliation and responsibility has taken place. It only means that several Blacks will receive cash payments for their suffering and that of an entire people. While class-action lawyers focus on how to win a case, Blacks should be focusing on how to win repair, which goes far beyond simply receiving cash payments. As 1998 Nobel Prize Winner Amartya Sen has written, income does not equate to freedom. As he points out, for all of the financial income that Blacks in America have - more than those in developing countries and Blacks in other countries throughout the world, they have an absolutely lower life expectancy than these supposedly "poorer" nations and people. Certainly a reparations check isn't going to address that problem in the black community. An unjust enrichment aargument ignores the reall losses of slavery - identity, health and life. The proper place for the reparations debate, in America, at this point, is on the grassroots level in Black America's civil society in the efforts that a reparations agenda, far beyond a simple cash payment, is placed before the United States Congress. Through the presentation of a program with the proper policies, Blacks can obtain much of the repair from slavery that they are looking for. All that Black organizations have to do is form a coalition across partisan and ideological lines that places a reparations agenda before Congress. We think that such an agenda should include an apology from the United States government, income, payroll and capital gains-tax exemption for Blacks, for a period of time, monetary payments in the form of cash and gold, increased funding made available to community and faith-based institutions for prisoner reform and education programs and the bargain sale or granting of pollution- free and arable government land that currently sits idle. Even conservative commentator Walter Williams says that the idea of providing such land to Blacks is the most tempting aspect of reparations for him. In a recent column he wrote: " There is one condition where I might fall prey to the reparations temptation. The federal government owns up to 90 percent of the land in western states such as Alaska, Nevada, New Mexico, and California. Turning that land over to blacks, and hence private hands, might not be a bad idea" On this point Minister Farrakhan and Walter Williams are in agreement as the Minister has long-advocated that land be included in any reparations settlement, as long as the land is toxin-free and able to be used for agribusiness. In addition, as part of a reparations agenda, Blacks should lobby for total debt relief, the removal of sanctions and increased foreign aid to Black countries throughout in Africa and the diaspora. And Blacks in America should support an international case coming from Black countries in the diaspora against European nations. Importantly, the reparations agenda should be complimented by the advocacy of economic growth policies that will sustain an environment where repair takes place and poverty is eliminated. To that end we believe that America should return to a gold standard, to promote trust and honesty in economic transactions; criminal justice laws should be reformed to end disparities in drug sentencing and the wholesale incarceration of non-violent drug offenders; and public education must either be fixed, or sufficient funding should be provided to enable students to leave failing schools while at the same time the public school system receives the exact amount of funding necessary to replace the amount that followed the children who have accepted vouchers. Surely, America would not have to be forced to pick between saving public schools and vouchers, if its spending priorities were in order. Surely corporate welfare and unnecessary defense programs can provide enough funding for our proposal. And surely, Blacks who were denied education while in slavery, should not be forced to accept a ridiculous partisan dichotomy that forces them to pick between public schools and vouchers to attend private schools. Maybe White America can afford such limited education options and budget constraints but Black America cannot. In the final analysis we do not believe that a comprehensive reparations package can result from a class-action lawsuit. Furthermore, to give such lawyers the lead in the movement for reparations represents a hijacking of sorts in that Black grassroots organizations, civic organizations, mosques, churches and Black local, state and national political leaders are left out of the development of the strategy. Instead of class-action lawyers leading the movement, they should be lead by the movement and their services should only be utilized to the extent that they contribute to the repair of the Black community. We recommend that if class-action lawyers are to be involved they should begin by crafting a class-action suit against the Federal Bureau of Investigation (FBI) and US Government for its actions in the FBI's Counter Intelligence Program (COINTELPRO). Surely, the surviving members of the NAACP, SCLC, SNCC, Black Panthers and Nation of Islam, who were victims of COINTELPRO, can unite to present a devastating case against the US government in this regard, and we are sure that the case would be worth the while of the lawyers, financially-speaking. Such a case against the government for the illegal actions of the government for COINTELPRO can also be included in the larger argument made to justify reparations and to win popular support for it. We think that such a case should be a litmus test of the sincerity, effectiveness and intentions of class-action lawyers who no doubt see fame and fortune for themselves, as a direct and indirect result of any reparations lawsuit. This handful of lawyers should not be excluded but they also should not dominate the formulation of a strategy that affects over 40 million people, in America and hundreds of millions across the planet. *Commission *Legal Arguments *More Legal Arguments *Resolutions *Father of Reparations *Commentaries