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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.
[1]. Professor of Law and Paul J. Liacos Scholar, Boston
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