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 of reparations, 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
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 type of
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 are almost
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
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 in the
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 African American
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 for slavery 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 a conceptual 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 mélange 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 of slavery,
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,
will suffer 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 group inequalities
persist. . . .
. Northeastern University School of
Law. The essay was supported by a Northeastern University School of Law
research grant for which the author is grateful.