INTRODUCTION

Affirmative action for Black Americans as a form of remediation for perpetuation of past injustice is almost dead. Due to a string of Supreme Court decisions beginning with Bakke and leading up to Adarand, the future possibility of using affirmative action to redressthe perpetuation of past wrongs against Blacks is now in serious doubt. Whereas some believe that the arguments supporting affirmative action as a remedy or even a tool of social policy are still sound, affirmative action programs continue to encounter strong political headwinds and judicial disapprobation.

At the same time as the battle over the end of affirmative action has been underway, nothing less than a sea-change has been occurring within the legal academy regarding the proper evaluation of the anti-racist agenda set by the Civil Rights Movement. That agenda, which relied on the rhetoric of equality rights and a commitment to binary racial integration, is now widely seen as lacking transformative appeal for those who continue to be racially subordinated in American society. Yet, given the ambivalence among Blacks both inside and outside the academy towards the old guard civil rights agenda, and with thedemise of affirmative action clearly on the horizon, a new mass-based antisubordination agenda has not emerged.

This article suggests that legal theorists concerned about racial subordination of Blacks reconsider and revitalize the discussion of reparations as a critical legalism. A critical legalism, as Professor Matsuda explains, is a legal norm reflecting and reinforcing the interests and perspectives of the subordinated. To the extent that many Black Americans believe some form of remedial action by the government in response to white racism continues to be justified, reparations is a critical legalism derived from "looking to the bottom."

As a critical legalism, however, Black reparations, unlike affirmative action, is a norm that has never been enforced. What its enforcementwould require in the first instance is a committed, concerted, and visionary appeal to a norm that, while no stranger to the law, nevertheless lies outside of the dominant legal imagination. Professor Matsuda has already canvassed and effectively rebutted some of the standard doctrinal objections to reparations that may be raised in a liberal legal framework that fails to consider the experience of victims. The task of mapping a legal path to enforcement of Black reparations, however, remains a challenge for legal theorists and policymakers attempting to pursue alternative routes to social justice because of the increasingly cramped space provided by litigation for remediation of injustice.

This article will argue that a program of reparations, in addition to being a critical legalism, benefits subordinated communities in ways that avoid some of the pitfalls and drawbacks of affirmative action. Moreover, a glimmer of promise can be taken from the recent revival of the reparations principle in the case of Holocaust survivors whose assets were illegally confiscated by Swiss banks in the wake of World War II. Through legislation, the positive law of some countries has slowly and painfully evolved towards recognition of reparations claims in extreme cases of group injustice, casting aside judicially imposeddoctrinal limits such as time bar, sovereign immunity, and denial of jurisdiction. This evolving position, which has been taken in some cases, may serve as an enforceable norm for all subordinated groups under which Blacks may seek reparations. The fact that reparations have been more effectively obtained through legislation than through litigation offers an opportunity to circumvent a court system grown hostile to the remedial claims of Blacks arising under the very constitutional provisions enacted to protect Black rights.

Legislatures, it may be argued, provide a friendlier forum for racial redress for both formal and substantive reasons. Formally, although their actions may be subject to judicial review, they are not constrained by judicial doctrines of standing, deference, timing or res judicata. Each of these doctrines might impact negatively any lawsuit seeking Black reparations. The claim of reparations, although constructively taking the form of a traditional lawsuit, e.g., Victims of Racism v. The Government that Failed to Protect Them, inevitably presents issues, some of them political, that many courts would find difficult, if not impossible, to resolve. By contrast, legislatures may hold hearings, make findings, and pass resolutions or laws on any matter affecting the public interest and within the scope of constitutional power. Substantively, legislatures provide a friendlier forum than courts for racial remedies, even during periods of backlash, because of their ability to enact comprehensive solutions to diffuse social ills, such as racial discrimination, and the inherent susceptibility of legislators notonly to constituent pressure but also to trading votes. Moreover, historically it has been legislatures, not courts, that have in fact initiated the most comprehensive remedies to racial subordination, Brown v. Board of Education and its progeny notwithstanding. Therefore, this article suggests that the Warren Court, despite its rulings favorable to the interests of the Civil Rights community, may have merely served to lull that community into a misplaced sense of reliance on litigation and federal courts. It is Congress, and perhaps the legislatures of former slave states, that must be persuaded to enact reparations. Reparations are worth fighting for even if such a campaign is unlikely to be successful, due to the intellectual benefit of racial dialogue. No matter how unjustly, affirmative action has been pigeonholed in popular consciousness as an "undeserved racial preference." Therefore, it seems easy for the majority to dismiss the demands of women and people of color for affirmative action and at the same time feel sympathy for the claim of reparations by Jewish Holocaust survivors. Unlike affirmative action, however, belief in the fairness of reparations does not require a strong commitment to the value of diversity nor a critical view of meritocracy. On the contrary, belief in the fairness of reparations requires at the intellectual level acceptance of the principle that the victims of unjust enrichment should be compensated. Under reparations, Blacks more readily may position themselves as creditors seeking payment of an overdue debt, rather than as racial supplicants seeking an undeserved preference.

In arguing the case for Black reparations, this article does not suggest that Blacks should receive reparations either exclusively or even first. In all justice, indigenous peoples should probably be compensated ahead of any others. I believe that the way to avoid the "everyone's been harmed" hierarchy of oppressions game is to coalesce as communities affirming real equality around development of a legal norm in the United States that mandates reparations to groups victimized by racism that is not group specific. Such a norm would apply to any group that could show the requisite degree of harm from racism, linked to an international standard of human rights, plus a reliable estimate of damages.

What follows are some comparative and historical arguments for Black reparations that should have some relevance to grassroots activists and the traditional civil rights community, but my hope is to reinvigorate discussion of reparations among the intellectual community of legal theorists, philosophers, political scientists, economists, etc. My hope is to reap the intellectual benefit of starting to talk more seriously about the relationship between race and class, even if actual material compensation remains the baseless fabric of a vision. To some extent, questions such as the basis for the claim for group reparations, what will they look like, how much is owed, who should be the recipients, and whether reparations are regressive in the sense that they entrench biological fictions of race, cannot at this point be definitively determined, but only put forward as issues ripe for critical examination and re-examination.

It is worth emphasizing, however, that my comparative study of the payment of reparations to groups other than Blacks is meant to establish a moral principle that should be embodied in American law and perhaps a legal model for groups yet to be adequately compensated, such as Blacks. It is not meant to inflame or contribute to a competitive spirit among people of color or others who should be the natural allies of social justice for Blacks and all people of color. The variety of reparative remedies within the legislative power is more than adequate to compensate appropriately all victims of racism, if that should become a political priority.

Reparations include compensations such as return of sovereignty or political authority, group entitlements, and money or property transfers, or some combination of these, due to the wrongdoing of the grantor. It is obvious, then, that the form reparations will take depends on, among other things, the particular demands of the victimized group and the nature of the wrong committed. In arguing for Black reparations, this article supports the idea of compensation through money transfers and group entitlements because I believe that reparations present an opportunity for institution-building that is badly needed, and should not be squandered in the consumer market. Nevertheless, I also believe that the poorest among us should be compensated first and through meaningful (not symbolic) monetary transfers.

Part I of this article discusses the socioeconomic indicia of Black disadvantage in relation to whites, thus establishing the first predicate of a Black reparations claim, perpetuation of Black subordination. Part I further delineates the ways in which the new post-civil rights norms of race relations continue to reflect anti-Black racism, foreclosing a neutral spin on the statistical disparities between Black and whitewell-being.

Part II offers a comparative review of the reparations principle as applied in the case of Japanese Americans, European Jews, and the failure to apply that principle in the case of Black Americans in Reconstruction era legislation.

Part III concludes with an evaluation favoring the benefits of a campaign for group reparations over the continued struggle to maintain affirmative action as the exclusive and primary tool for remedying Black subordination in American society.