Keith N. Hylton
Abstract of: Keith N. Hylton, Slavery and Tort Law, 84 Boston University Law Review 1209- 1255, 1209-1213 (December, 2004) (186 Footnotes Omitted)
On March 26, 2002, a class action complaint seeking reparations for slavery was filed in the federal district court for the Eastern District of New York under the name Farmer-Paellman v. FleetBoston. The complaint named as defendants FleetBoston Financial Corporation (a bank), Aetna (an insurance company), CSX (a railroad) and a large number of unnamed corporations described as "Corporate Does Numbers 1- 1000." The complaint asked for restitution, compensatory damages, punitive damages, and an accounting of the profits earned by the predecessors of these firms from slavery.
The FleetBoston complaint transformed a long-discussed theoretical matter into a living animal with the potential to bite someone. For up until the date of the complaint, the reparations debate had been conducted largely among friends and receptive audiences. Anyone who objected to the notion of paying reparations for slavery could ignore the issue, and most people did just that. One member of Congress, John Conyers, introduced a bill seeking slavery reparations twelve years in a row, each time meeting a lopsided defeat and a collective yawn from his colleagues. The class action suit, though a long shot from the start for the plaintiffs, represented a significant change in the terms of the debate.
This paper evaluates the claim for slavery reparations from a torts perspective. I start with an examination of the injuries inflicted on slaves, and the extent to which tort law provides a vehicle for redressing these injuries. Next, I address the question of "derivative claims," claims brought by someone other than the direct victim. This category of claims covers the reparations complaint. As I will explain, tort law, for the most part, has not been receptive to derivative claims. Lastly, I discuss the accounting demand by the reparations plaintiffs.
Tort doctrine appears to be inadequate as a means of converting the injuries to slaves into claims for damages. Slavery involves some obvious torts, such as assault and battery, conversion, and wrongful confinement. A person held as a slave today could surely collect damages. Slavery also involves a category of "social torts," however, that are equally if not more harmful, for which tort law appears to be an inadequate means of seeking compensation. Among these social torts are the slave marriage, the deprivation of status, and the denial of religious freedom. Traditional tort doctrine does not have any readily available "forms of action" for these injuries. And yet it is the social torts that are potentially most damaging to slave descendants because, like a constantly mutating virus, they have the capacity to injure successive generations.
Of course, reparations claims are derivative in the sense that they are not brought by direct victims, and thus the fact that a person held as a slave today could collect damages does not tell us whether descendants of slaves should be able to seek compensation through the tort system. The derivative status of reparations claims presents special obstacles for plaintiffs. However, the fact that slavery was entirely within the law when it was practiced should not be viewed as a substantial obstacle. The slaveholder sought a regime in which the law would not constrain him in his dealings with slaves. Applying today's law to that relationship should be viewed as bringing law to a regime from which it had been entirely displaced, not as a retroactive application of a different set of rules.
The more troubling problem for plaintiffs is the passage of time. After enough time has passed, tort doctrine shuts the door on compensation claims based on old and distant injuries. The FleetBoston complaint and its progeny are clearly vulnerable to this argument.
The only component of the new reparations claims that has the potential for social gain is the demand for an accounting. Information on slavery's victims and how they were hurt has been readily available for a long time. Information on slavery's beneficiaries and precisely how they profited should also be in the public's hands, for it has the potential to clarify perceptions on the social costs of slavery, bring about a more honest exchange on racial issues, and reduce incentives to discriminate in the present. I would prefer to see the scope of the demand expanded to include information not only on profits from slavery, but also profits from the oppressive and discriminatory regimes that appeared in its wake.
. Professor of Law and Paul J. Liacos Scholar, Boston University,