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James R. Hackney, Jr.

excerpted from: James R. Hackney, Jr., Ideological Conflict, African American Reparations, Tort Causation and The Case for Social Welfare Transformation , 84 Boston University Law Review 1193-1207, 1195-1206 (December, 2004) (61 footnotes omitted)

The vestiges of slavery, contemporary racism, and Jim Crow can be analogized to toxins that infect America. These contagions have in many ways disabled America, crippling its ability to live up to its democratic creed and humanistic ideals. The malady, however, has had its most direct impact on descendents of slaves and those who by virtue of their skin color are subject to similar ill treatment. In fact, the legacy of slavery has robbed African Americans, as a group, of sorely needed "race capital." This represents a Black Nationalist position, constructing a modified tort causation framework in order to make an argument for reparations.

Assuming that vestiges of slavery may be analogized to toxins in our environment, we face familiar common law tort causation issues. In this respect, the Black Nationalist position confronts fairly standard doctrinal concerns. Causation, however, is a threshold issue in any discussion ofreparations, even those that do not explicitly raise legal doctrinal concerns. Popular critics of the reparations movement, from the left and right, have raised issues regarding African American reparations, which, stripped of their rhetoric, boil down to rather technical questions of causation. These issues include questioning how we determine the beneficiaries of reparations, who bears responsibility for the slave industry, and who benefited from it. In addition, such thoughtful philosophical commentators as George Sher, Janna Thompson and Jeremy Waldron have directly raised technical issues regarding causation in reparative claims.

In his landmark article on toxic torts, Robert Rabin noted three common causation issues: identification, boundary, and source. In framing the case for African American reparations, analogous issues emerge when one attempts to form causal connections.

Identification problems in tort causation arise when no necessary connection exists between the harm and agent alleged to have caused the harm. Rabin discussed, for example, how toxins breed disease but given the time lag between exposure and contracting these diseases, it is impossible to connect a particular injury to a toxin because frequently the harm is not unique. Similarly, although some injuries suffered by African Americans are unique to the slave experience, it is difficult to trace many of the misfortunes suffered by individual African Americans to slavery with the typeof causal certainty required in tort. This is the Individualist position.

Black Nationalists seek to address the issue in group terms. Robert Westley has made an ingenious argument that the discrepancy in African American wealth, versus European American wealth, can be traced to the harms done as a result, and in the aftermath, of slavery. The problem with his analysis from a tort causation perspective is that there are background causes that may also account for wealth discrepancies. Conservatives ("Individualists"), such as Thomas Sowell, George Gilder, and more recently John McWhorter would attribute the inequalities to differing cultural values or the negative incentive effects of the welfare system. While some might chafe at these narratives as plausible explanations, it is obvious from even a cursory glance at the recent direction of public policy (particularly welfare reform) that such arguments have much currency in mainstream political thinking.

Boundary problems are raised when there is a difficulty in calculating the damages resulting from harm because its effects are felt beyond the "initial" victim. In toxic torts, Rabin identified boundary problems where in utero exposure to toxins injured succeeding generations. Common law tort was designed to settle disputes in which the harm is immediate. Therefore, it is very difficult to meet the traditional causation test when boundary issues arise.

African American reparations present obvious boundary problems. We arealmost five generations removed from slavery being formally dismantled. The vestiges of slavery have been manifest through the generations, and no obvious signs indicate that the harms will ever be fully alleviated. Moreover, the negative consequences are not limited to descendants of slaves but impact many of those with a darker hue whose ancestors immigrated to America after slavery was abolished.

Source problems arise due to the difficulty of identifying the agent who injured the aggrieved party. While at first blush it may seem as though the source issue is straightforward, simply a matter of tracing the record of slave ownership, it is actually very complex. Slavery, as an institution, constitutes many intricate relationships. Although the slave owner plays a major role, the institution is supported by other actors, including northern ship merchants who profited from the slave trade. Current litigation claiming reparations from financial institutions that funded the slave trade illustrates the interconnectedness of numerous economic and social forces.

The litigation also highlights a crucial fact regarding the source issue and slavery. It might be a relatively simple task to identify slave owners. However, since many plantations were family-owned sole proprietorships, there is no continually existing entity (such as a corporation) to answer for these claims. In this regard, the source problem is even more intractable than inthe toxic torts context where, except for bankrupt institutions, corporate perpetrators are frequently available to litigate claims.

In sum, claims for African American reparations present a mix of vexing causation issues (identification, boundary, and source). From a philosophical perspective, such causal uncertainty raises technical difficulties in dealing with very complex counterfactuals. For example, what would the lot of any individual African American be were it not for the institution of slavery? It is difficult to say with certainty. The claim of reparations based on slavery fails to satisfy Professor Sher's "automatic effect" requirement: the current harm does not necessarily flow from the initial wrong. Thus, at a minimum, extant tort doctrine would have to be expanded in an effort to do justice.

Of course, the conceptual foundation for tort causation and the philosophical positions Sher articulates rest on Individualist assumptions. Mari Matsuda has put forth one of the most extensive critiques of the Individualist position relating to causation, which she refers to as "liberal legalism." Observing that reparations fail to meet the Individualist causation standard, Matsuda argues that the locus of analysis should be groups as opposed to individuals. However, the problem she quickly runs up against is that group identification can be difficult and complex. For example, there are obvious class and other differences within the AfricanAmerican community. In order to sustain her argument for reparations, Matsuda claims that "continuing group damage engendered by past wrongs ties victim group members together." This begs, however, certain questions that an Individualist is sure to raise. Should wealthy (or even middle class) African Americans receive compensation? Do we limit reparations to those who can trace their lineage to slavery? A tort law regime provides an imperfect forum for tackling these issues.

Let us take up one of Rabin's questions: "Does it still make sense to rely on a tattered version of the traditional [tort] system?" Rabin replies to his own query by stating that it does not make sense to rely on the traditional system, and that we should at least explore alternatives. I reach the same conclusion regarding Black reparations. Moreover, given the nebulous nature of the harm stemming from American slavery and its vestiges, even the mixture of non-tort compensation schemes Rabin suggests seems to fall short. The various no-fault compensation schemes all presuppose a readily identifiable harm, such as asbestosis, which a claimant can present to an administrator. In addition, the harm's source can be traced to a pool of similarly situated actors. It is just not that simple in the case of African American reparations. The harm of racism is both too great and too amorphous to count. Regarding perpetrators, Matsuda attempts to address this issue by arguing that, although individual whites may not be responsible forslavery and its legacy, they (as members of the group) benefit from a regime of white privilege. Matsuda in effect makes a Nationalist (group-based) claim for reparations. Like Matsuda, reparationists almost invariably turn to group-based approaches to deal with the boundary, source, and identification problems associated with Black reparations, thus suggesting that a social remedy is the preferred policy prescription (as opposed to payments to individual claimants). It is useful to tease out the logic and policy implications.

An economic and cultural development program funded by the federal government would provide a level of group justice to victims, while eliding vexing causation problems. The logic is as follows: (1) Africans, as a group, suffered a unique harm in becoming part of America - enslavement; (2) the United States government played a crucial role in upholding the institution of slavery; (3) the United States government owes a debt to descendents of African slaves and African Americans, as a people, who are subject to the racist legacy of slavery; and (4) payment should take the form of community economic and cultural development. The balance of this section will focus on expanding these four points, while integrating the previous causation analysis.

The harm to African Americans as a group may be conceptualized as a depletion of "race capital," expanding on the group focus Professor Matsuda articulates. The idea of race capital, which has been discussed as aconceptual category, builds on the notions of economic, cultural, social and symbolic capital articulated by the French philosopher, Pierre Bourdieu. We can take the race capital of any particular ethnic group to be an amalgam of all four forms of capital set forth by Bourdieu. Westley has made a persuasive case that the vestiges of slavery have depleted the "economic" capital of Blacks. In which case, a strong argument can be made that the institution of slavery has severely decimated African Americans' race capital. I take this to be the strong claim made by Randall Robinson and other Black Nationalists in the reparations movement.
The unique nature of the United States' role in the depletion of race capital cannot be fully understood unless one appreciates a central fact about slavery, which Professor Keith Hylton has so aptly described: The institution of slavery cannot exist without the absence of law. What makes the institution of slavery unique is that the relationship between master and slave is unregulated. To the extent that the government does intervene in this relationship, it acts to protect the "property" interest of slave owners. There could not have been any legal slave ownership without government sanction - it was prior and necessary. While, a mange of institutions were morally culpable for supporting the slave industry, the brunt of responsibility falls squarely on the United States government. In taking no action against slavery, it effectively acted for it. As such, it is not only the primary source ofslavery, but of the legacy of slavery that came in its wake.

Historically, the United States government has been faced with specific choices regarding the fate of African Americans - beginning with their enslavement, but also continuing after the official abolition of slavery. Faced with these choices, Professor David Lyons chronicles a pattern of malign neglect: failure to live up to the promise of Reconstruction, acquiescence to the system of Jim Crow, and an all too tepid commitment to post-World War II social welfare programs (including those associated with the so-called "war on poverty"). From this perspective, we are dealing with a continuing wrong and its automatic effects do not seem so attenuated.

The idea that a reparations argument should not be limited to the initial wrong, slavery, but also account for the action (and inaction) of government post-abolition is hardly novel. In fact, it formed the basis for the first sustained treatment of the subject, Boris Bittker's The Case for Black Reparations. As the frame of reference moves further away from slavery, however, the argument begins to look more like a standard social welfare claim as opposed to reparations.

Implementing a social welfare remedy, as that term is broadly defined, helps us address the boundary problems. Institutions established to enhance victim communities attend to the needs of not only the current generation but also others to follow, which, if history repeats itself, willsuffer the same affliction. In this regard, the group form of reparations called for by advocates, such as Robinson and Westley, has merit. If the monies of the United States government are directed towards developing impoverished African American communities (including direct funding for public schools and basic infrastructure), supporting African American institutions (such as historically Black colleges, and cultural institutions), and creating new institutions (for example, a national museum chronicling African American history or creating a slave memorial), it would be a boon not only to present descendents of slaves, but to future generations as well. In addition, others harmed by the stain of racism based on skin color prejudice would also benefit.

The social form of reparations also helps address the identification problem. While it may be difficult to lay the problems of any one descendent of African slaves on the doorstep of slavery's legacy, there is a strong case to be made that, as a people, African Americans suffer particular harms due to this unique chapter in their history, such as the loss of race capital. Under almost every significant indicator of economic and social progress African Americans lag behind others, particularly those of European descent. This is not to ignore, as Individualists would note, significant economic gains in the African American community, particularly the burgeoning middle class in post-Civil Rights America. Nevertheless, the continuing groupinequalities persist. . . .

[1]. Northeastern University School of Law. The essay was supported by a Northeastern University School of Law research grant for which the author is grateful.