I. The Legal Position

Quite by chance, I recently picked up a copy of Boris Bittker's The Case for Black Reparations, published in 1973. Its elegant text is obviously dated, but it reflects the open wound that slavery and segregation continued to inflict on American society even after Brown v. Board of Education had been on the books for almost twenty years. The memory of Plessy v. Ferguson remained stuck in the craw of this distinguished American liberal whose main area of expertise was taxation and not civil rights or race relations. (The joke at Yale when I was a student was that Bittker, with his relentless intellectual rigor, was able to make his civil rights course resemble his courses in taxation, when most people hoped for the opposite result). In his book, Bittker offers a merciless dissection of the claims for and against judicially-imposed reparations. He makes it clear that he prefers some kind of legislative program, perhaps one modeled on the German compensation program for victims of the Holocaust, which included payments to Israel. He entertains the possibility of bringing action under Section 1983 against various officials who had enforced segregation while acting under color of state law. In evaluating the remedial alternatives, Bittker is genuinely troubled about whether the distribution of the cash in a program of reparations ought to be paid to individuals for their personal grievances, or paid over to black organizations for use in promoting various social programs. He is further troubled by the charge that the introduction of a race-specific reparations program could undermine the color-blind norm of state action that animated Justice Harlan's famous dissent in Plessy. The pain of past injustices runs very deep.

I mention these materials because the passage of thirty years has not put all of these questions to rest, particularly in light of the recent flurry of action over this question. Bittker's elegant exposition of his case reveals the difficulties that have dogged the various claims for black reparations, all of which Judge Norgle firmly rejected recently in African American Slave Descendants Litigation. That case addressed the possibility of judicially created remedies, and did not discuss the legislative route that has been used, for example, in the award of limited reparations to the Japanese who were interned in the United States during the Second World War. In this regard, the most impressive feature of the Norgle opinion is that he spent very little time discussing the substantive merits of the individual cases, and instead focused much more on the bewildering array of procedural and constitutional objections to the plaintiffs' cases.
Here I shall consider three of those procedural points: standing, political question, and the statute of limitations. Under received law, Norgle was right to think that each of these obstacles could not be overcome. As a matter of principle, however, I think that the last objection is the only one that works. But in law, generally one good argument is enough, and this argument is indeed sufficient to carry the day. In the course of dealing with that last issue, I will discuss some of the substantive issues that it necessarily raises. These cluster largely about the question of what should be done when the individual perpetrators of past wrongs are beyond the reach of the law, and the plaintiff must ground its claims on a theory of vicarious liability.

A. Standing

The initial obstacle to the plaintiff's case was the doctrine of standing, which in its accepted modern form requires that any plaintiff show that his injury is separate and distinct from that of the public at large, and that the harm in question be traceable to some wrongful action of the defendant. In Norgle's view this test was not satisfied when the descendants of past slaves could only state a derivative claim for injuries rather than one personal to themselves. In rejecting a claim for historical injustice, he chided the plaintiffs for presenting a claim that was "contrary to centuries of well-settled legal principles requiring that a litigant demonstrate a personal stake in an alleged dispute." In this particular case, unlike others, I do not have any deep conceptual objections to the definitions of standing that Norgle applied here. I think that these tests of discrete injury are wholly inappropriate, however, for those claims that seek to enjoin the government from the commission of actions that are ultra vires a particular branch of the federal government. As I have argued elsewhere, the judicial power extends to cases in equity, and one standard tenet of equitable remedies, such as those crafted to deal with derivative actions against the officers of corporations and voluntary associations, is that all members of the relevant class stand in the same position to the wrongdoer, such that one individual may become the virtual champion of the entire group.

In cases that take this form, the object of the lawsuit is to protect against actions - such as the appointment of a national bishop or the refusal to publish the budgets of our intelligence agencies - that may be conducted in violation of structural limitations contained in the Constitution. These violations will go largely unredressed unless one person can bring the case for everyone. The insistence on a separate and discrete injury in these cases necessarily results in an odd truncation of the doctrine of judicial review established in Marbury v. Madison. Hence I think that there is a strong case for citizen or taxpayer standing, which means that the chief task for the court is to decide which case should be allowed to go forward when multiple challenges are made.
None of the plaintiffs' claims in African American Slave Descendents Litigation fall into this class. These actions sought damages for conversion and restitution against private corporations who allegedly profited from the forced labor of black slaves, or from insurance or lending businesses relating to the slave trade. These are not claims for citizen standing which I would allow, even if the current law allowed for citizen or taxpayer standing. Rather, these claims are straight claims for compensation for past wrongs, or for the performance of particular acts, such as opening corporate books to inspection or for an accounting. Whatever the merits of these suits, their form is far from exotic.

Regarding a different justification for denying standing, the damage claims should not be dismissed solely because they are not brought by the persons directly injured but by their descendants. Derivative actions are routinely allowed in other contexts. For instance, the normal action for loss of consortium when brought by the disappointed spouse or child is actually a derivative action because the real victim in the case is the party who was physically injured in the accident. The same could be said about any action for wrongful death brought by a descendant under a tort theory that would have been available to the decedent had he lived.
The plaintiff's cases are sharply distinguishable, moreover, from the full range of tort cases in which standing doctrine does bar actions that might be allowed if the only tools in the defendant's war chest were duty of care and proximate cause. I refer here to situations in which the pollution of public waters is said to generate a cause of action for fishermen, but not for the packers who are dependent on their catch. The defense of the result in these cases is that the inner tier of plaintiffs will satisfy the need for deterrence, so that the huge administrative costs associated with the second tier of actions can be safely avoided. In reparations cases, on the other hand, there is no inner circle of claims that are allowed: all actions for reparations fail even if the standing objection is allowed.

In light of these considerations, it is therefore a real puzzle why standing should be such an obstacle when the case is so similar to those where standing is routinely allowed and so different from those where it is routinely denied. A finding of standing does not announce to the world that the claim is sound. It only signals that the plaintiffs should have the opportunity to show that it is sound, both on the law and the facts. What has happened in this case is little more than a disguised ruling on the merits.

B. Political Question Doctrine

The court also dismissed African American Slave Descendants for running afoul of the political question doctrine. The court conceived of the doctrine in the standard formulation of Baker v. Carr, and reasoned that judicial power is restricted because the entire matter of reparations had been committed to the legislative branch. The basic elements of the political question doctrine have been expressed as follows:

[1] A textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

I confess a genuine difficulty in seeing how this doctrine should apply. Starting from the top, there is little reason to think that reparations are committed to any other branch of government apart from the judiciary. The usual cases in which the political question doctrine has real legs arise in connection with claims brought by foreign individuals in the United States, when the executive branch, often with Congressional backing, has sought to work out some accommodation with foreign governments and foreign nationals. The argument in these cases is that the domestic litigation works at cross purposes with our diplomatic objectives. Exactly how these two goals should be reconciled is an issue far beyond the scope of this short essay. Regardless of the right resolution, however, I do not think that we should express the political question doctrine as a limitation on the judicial power. If we do, then it is hard to see how that power could ever be conferred, even if the executive branch waived objections to the suit on the ground that the suit did not impede the nation's own diplomatic initiatives. The better way to think of the doctrine is as an exercise of inter-branch comity, which recognizes that international problems are often better solved by political rather than judicial means, even if it results in the loss of individual claims.
Many of the claims for reparations in which the political question doctrine has been used take place in international contexts. With respect to domestic situations, I am again hard pressed to understand why an ordinary claim for restitution or conversion should be thought of as raising the political question doctrine simply because the matter is politically explosive. No one raised such an objection in Brown v. Board of Education, and I see no reason why the reparations issue should be bounced out of court on the ground that it is too hot to handle. One might as well say that all current asbestos litigation should be brought to a halt because Congress is hard at work in a quixotic endeavor to fashion some claim facility that will deal with these issues. Nor is there any difficulty in discovering the underlying legal principles to govern these cases. After all, it is quite permissible at common law to deny a cause of action on the ground that it has been barred by the statute of limitations or that the plaintiff has not pleaded or proven sufficient acts that will allow for a definitive determination of damages. The entire body of law that relates to the indefiniteness of certain promises proceeds on exactly these grounds. It is not as though a court is asked to rule on a declaration of war, or even to act to undermine a compensation scheme already in place. Here again the political question evasion seems to make little sense, and indeed has the appearance of being an opportunistic doctrine used to put aside political hot potatoes that raise standard legal issues.

C. Statute of Limitations

The statute of limitations defense, however, seems to be impregnable in these cases. These statutes can raise individual issues of immense complexity, but the basic outlines are tolerably clear. As a basic matter, a statute of limitations has two major purposes. The first purpose is to make sure that the cause of action is brought when the evidence is fresh so that a trial can conclude with tolerable accuracy. Second, and equally laudable, these statutes allow parties to bring to closure past disputes so that everyone can get on with the business of life. These considerations also rationalize the doctrines of adverse possession and prescription developed in connection with claims for real property. In general, the statute of limitations starts to run when the cause of action accrues, that is, when plaintiff suffers the harm.
As a first approximation, therefore, the individual causes of action for slavery and segregation accrued when the injuries were inflicted, so that the statutes in question have long run unless some tolling exception applies. Tolling refers to those equitable circumstances that "toll," or stop, the statute of limitation from running. In the simplest case, the statute is tolled during the minority of an individual who lacks the capacity to bring suit on his own behalf. It takes little imagination to accept that the statute should be tolled when the injured person is prohibited by law from bringing any legal action at all, which occurs when a slave is a nonperson. But even if we allow this tolling defense, it only gets us up to around 1865. Much of the wrongs inflicted in the United States took place after the civil war during the period of official segregation. But segregation does not toll the statute of limitations because segregation did not limit the right to bring suit, even if the climate of opinion made it impossible to win on these cases. That happens in countless areas of life. For example, the privity limitation relevant to product liability law once made it impossible for an injured person to sue a remote supplier of goods in New York unless certain limited exceptions applied. Although MacPherson v. Buick undid this limitation in 1916, a tort cause of action barred in New York in 1866 could still not be revived fifty years later. The same is true with reparations. The hostile legal climate surrounding a cause of action for reparations, or for anything else, does not prevent the statute from running.

Furthermore, this case is not one where the individual plaintiff does not suffer an injury until years after the defendant has acted. In contrast, in cases where someone inhales asbestos fibers in 2004, under traditional law the plaintiff has a cause of action against the manufacturer who made the fiberboard fifty years earlier. A statute of repose could bar actions based on the number of years since the defendant has parted with possession of the dangerous product. This bar, however, is wholly without regard to the time of the plaintiff's injury. Nor is this a case of concealment or of a continuing wrong, apart from the want of redress of the older wrong, which if allowed in any case always makes the statute a dead letter. I think that the statute of limitations defense should be allowed, and that the case should turn on that ground alone, not that of standing or political question.

This result is consistent with the basic theory of the statute of limitations because the passage of time is, in general, a reliable proxy for the increased complexity of events. The correct view of the substantive law allows for the descent of the action to take place on both sides of the case. On the plaintiff's side, each passing year results in the multiplication of the number of descendants to whom some fractional interests have passed. The analogous problem in connection with the possibilities of reverter and determinable fees has resulted in a number of legislative and private initiatives whose purpose is to cut down these actions because of the huge number of parties involved. Thus a legislature could require that individuals reregister their interests to keep their interests alive, or the legislature could require the creation of trustees who are allowed to proceed on behalf of all parties. But no such mechanism is available here, so that we see with each passing year the numbing difficulties of trying to figure out who is a descendant of whom, and to what fraction.

This seems to make the class action approach difficult if we were to aggregate the individual claims, where each claim is dubious in itself and differs in some particulars from the others. In the years since 1865 we have had at least seven generations, so that a direct descendant of a slave is 127 parts not slave descendant, unless there is another slave somewhere else in his or her line of ascent. The truncation worked by the statute of limitations prevents these reparations actions from lasting for more than a single generation. To circumvent this problem, we have to contrive of some class-wide payment that goes to no one in particular, but to entities who are said to represent these individuals. But at this point, why think of the claim as one for reparations when the program looks far more like some legislative initiative that does not have to observe the standard constraints of corrective justice, but simply has to command sufficient political support to pass.
Similar difficulties exist on the side of the defendant. Let us assume that the claim really does ask for an accounting of profits that were achieved by using black labor, by selling insurance on slaves, or by making loans to purchase slaves. We have no idea how much of that profit (assuming that it could be calibrated) actually descended to the next generation. The ordinary business will reinvest some fraction of its profits, but will declare some as dividends and pay some out in salaries to its employees. Dividends and wages do not descend to the next generation. Hence it becomes necessary to figure out just how much of the current worth of any firm is related to these distant events, as opposed to those of more recent vintage that were conducted on a far larger scale. Any calculation that takes interest at just 2% of the full profits, or even some fraction thereof, improperly ignores the distributions and consumption that cause this action to fail.
The numbers generated by faulty calculations are orders of magnitude too high. Think of the matter this way: $100 invested in 1865 at 2% interest compounded annually equals $1600 140 years later. But if one allows a bit for inflation and does the calculations at 5%, then we are at $92,500. Those numbers increase exponentially to $11,589 for profits invested in 1765 at 2%, and to $12,173,957 for that same $100 invested at 5% interest. These calculations would suggest that huge fractions of the net worth of the targeted firms, if not their entire value, is attributable to the slave trade, until it is remembered that the same dubious calculations could be used to attribute the full net worth of the firm to virtually all of its other activities as well. None of these calculations are accurate because they all assume that all earnings were retained and invested, which does not happen anywhere. The use of a statute of limitations truncates these inquiries to a smaller number of years where it is possible to actually trace the dollars in question through specific transactions, instead of relying on some general statement that X institution was engaged in some activity that allowed it to profit from slavery.

In this regard, it is instructive to note that the most common cases in which the statute of limitations is tolled are those that seek the return of specific works of art taken from their owners during the Holocaust or some other cataclysmic event. But these claims present none of the difficulties associated with the claims for reparations. First, with art claims there is a genuine case for denying the operation of the statute of limitations, for even though the plaintiff knows that a wrong is committed, it may be impossible to figure out by whom, especially for art not on public display. Second, there is no valuation problem involved in these cases because the art work remains (precisely because it is art) in its original condition, give or take a few levels of dirt or varnish. And third, the plaintiffs almost always seek only the restoration of the art in question, not recovery for the fair rental value of the art work for the many years that it was in the hands of others. These underlying claims are much more focused than those for reparations, and the remedy demanded is far more limited.

In sum, the decision in African American Slave Descendants offers a full range of reasons for denying claims for reparations. As a descriptive matter, I think that courts will eagerly embrace all of the reasoning in that decision in order to rid themselves of cases from which they can see no good coming. As a normative matter, I think that the case is rightly decided on the prosaic grounds of the statute of limitations. I would prefer to see the matter left right there on the ground that we could then avoid making bad law on other issues that could spill over into cases that have little or nothing to do with reparations, or which do not present any major time issue. That said, recall that the statute of limitations only bars a legal right of action. It does not determine that no right has ever existed; it is thus hornbook law that money owed which is paid over voluntarily after the expiration of the statute of limitations cannot be recovered, even if a suit for that same sum could be effectively resisted. For the same reason, the running of the statute of limitations does not block nonjudicial responses to the underlying problem. The view that I have taken of the case therefore fairly invites consideration of how these matters ought to proceed once litigation against all public and private defendants is out of bounds. It is to that question that I next turn.