Excerpted From: William Y. Chin, Epigenetics and Reparations: How Epigenetics Can Help Federal Plaintiffs Meet the Constitutional Article III Standing Requirements in Reparation Lawsuits, 22 Seattle Journal for Social Justice 3 (Fall, 2023) (291 Footnotes) (Full Document)

WilliamChin.jpeg“[J]ustice too long delayed is justice denied.” Reparations to Black Americans have been delayed and denied, but current reparation efforts-- including lawsuits seeking reparations--may finally begin the process to provide a measure of justice for past wrongs committed against Black Americans. Reparations are, in part, a program of redress for a “grievous injustice.” The grievous injustices against Black Americans include generations of enslavement and racial oppression.

Recent reparations lawsuits, such as the 2005 African-American Slave Descendants Litigation lawsuit, are an attempt to redress these injustices. The African-American plaintiffs alleged that slavery-connected companies engaged in past tortious conduct against the plaintiffs' slave ancestors, thus causing the plaintiffs as slave descendants to suffer current harm. But the lawsuit failed because the lower court ruled in part that the African-American plaintiffs lacked Article III standing. On appeal, the appellate court agreed that the African-American plaintiffs lacked Article III standing, declaring it was “impossible” to connect the past conduct of the defendants (various banks, insurance companies, and other private companies or their successors who profited from the slave trade and slavery) with the present financial and emotional harms of the plaintiffs (descendants of their enslavedBlackAmerican ancestors).

Admittedly, reparation plaintiffs seeking redress through the courts walk a difficult path because history shows the courts have often been a barrier to racial justice. Court-based redress is possible, though. For example, in 1878, a white jury in federal court awarded $2,500 in compensation to BlackAmerican plaintiff Henrietta Wood in her lawsuit against Zebulon Ward, a white man who had kidnapped and enslaved Wood decades prior to the jury verdict. Henrietta Wood had been sold as an enslaved person to William Cirode, but Mr. Cirode's wife, Jane Cirode, later moved to the free state of Ohio and registered Wood as a free person in 1848. But Mr. Cirode's daughter and son-in-law disagreed and connived with Zebulon Ward, a deputy sheriff, to kidnap Wood to re-enslave her, which Ward did working with “slave catchers” in 1853. Many years later, after regaining her freedom, she filed her lawsuit in 1871. Seven years later, in 1878, the jury found for Wood and compensated her for the kidnapping and re-enslavement.

Henrietta Wood's example reveals that courts can be an avenue for racial redress. Like Wood, present-day reparation plaintiffs, descendants of their BlackAmerican ancestors, can also seek redress through the courts. Recent epigenetic research can support their reparations-through-litigation effort. Researchers have identified four main mechanisms for the transfer of transgenerational trauma: (a) socialization or sociocultural, (b) psychodynamic relational, (c) family systems, and (d) genetic or biological.

This article explains how recent research on epigenetics (i.e., how environmental stimuli modify the expression of individual genes without changing the DNA itself as a pathway for transgenerational harm can aid federal reparation plaintiffs in meeting the Article III standing requirement at the pleading stage, thus making possible what the appellate court in African-American deemed “impossible.” Further, this article addresses the genetic or biological mechanism involving epigenetics to explicate how plaintiffs can file a tort lawsuit alleging present-day harm that has persisted across generations through epigenetic alterations. Section II below explains how new research on transgenerational harm through epigenetics is relevant to reparation lawsuits by helping bridge the divide between the defendants' past acts and the reparation plaintiffs' present harms. Section III delves deeper into how present-day federal reparation plaintiffs can use research on transgenerational harm through epigenetics to satisfy the constitutional threshold Article III standing requirement.

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Courts have the opportunity to be a part of the reparations efforts to provide redress to Black Americans. During the enslavement period, the Dred Scott Court supported and strengthened slavery. During the post-enslavementJimCrow period, the Plessy Court supported and strengthened racial segregation. The current period could be the era of reparations based on advances in epigenetics research allowing reparation plaintiffs to plead reparation allegations that satisfy Article III's standing requirement. Allowing reparation lawsuits to proceed beyond the threshold standing requirement is a move away from justice denied to justice delivered for Black Americans.

Professor Chin teaches Race and the Law and other courses at Lewis & Clark Law School.