Reparation litigation: lawsuits seeking reparations for anti-Black harms
Dr Angus Nurse examines the effect of equality and diversity in litigation and human rights law
Despite the undoubted progress made by the civil rights movements in both the US and UK, and the integration of black citizens within Commonwealth countries, contemporary black and African-American citizens arguably continue to suffer disadvantage. Evidence consistently suggests black citizens are disproportionately represented in the negative aspects of criminal justice; being more likely to be stopped and searched by policing agencies; to be disproportionately represented in prison populations (see, for example the Lammy Report, 2017) and are believed to receive stiffer sentences for offending compared to their white counterparts.
Reparations litigation has emerged as a means of seeking redress as both legal and societal remedy for the legacy of slavery and continuing racial injustice. In recent decades, several lawsuits (particularly in the US) have argued for reparations on the basis slavery was “legally coded white supremacy” that created structural inequality and a system of structural racism has continued into contemporary society. Reparations lawsuits advance claims based on reparations for slavery, “Jim Crow” (legal segregation) and their legacies of anti-black racism, engaging with both historic injustices and the ongoing inequality of structural racism. Basic reparations claims seek compensation for unpaid labour costs within the transatlantic slave trade and redress is based on a calculation of this. But litigation has also sought compensation for reduced economic opportunity and social costs of African-American and black citizens as well as redress for unjust enrichment on the part of corporations.
However, most reparations litigation (and particularly slavery-based cases) fail for a variety of procedural and jurisdictional reasons, which include: standing; statutes of limitations; the political question of whether determining reparations claims is a matter for the courts or the legislature; and the question of sovereign immunity, rather than on the specific merits of the case.
The nature of reparations litigation
Numerous lawsuits were filed against American companies in the early 2000s, seeking reparations for the companies’ alleged complicity in slavery. The full extent to which the companies were complicit in, or benefited from, slavery had arguably only recently come to light – which prompted a series of lawsuits. Several cases were consolidated in federal court in Chicago, Illinois into In Re African-American Slave Descendants Litigation, 375 F. Supp. 2d 721 (N.D. Ill. 2005). A broader case, Cato v United States (1995) 70 F.3d 1103 (9th Cir) had earlier sought damages from the United States relating to the enslavement of African Americans and subsequent discrimination.
Arguably, three broad classifications of reparations litigation have been attempted in contemporary reparations cases in the United States:
- A “traditional” reparations suit against a defendant or defendants on behalf of a “plaintiff class”, usually comprised of defendants of slaves. In these cases, a familial relationship between the ancestor victim who experienced slavery and the contemporary plaintiff was the basis of standing to bring a claim.
- A “Jim Crow” claim bringing suit on behalf of a group of still-living plaintiffs who experienced the harm of post-slavery segregation. Thus, standing is established via a claim of direct harm. Reparations claims for contemporary anti-black racism based on a particular and specified harm would also fall into this category.
- The third classification includes claims brought by a private citizen on behalf of a group using a state’s “private Attorney General” doctrine, where the dictates of justice can be argued to allow this.
The “traditional” claims arguably dominate the legal landscape and are based in tort or theories of unjust enrichment. But such lawsuits are frequently met with hostility in a legal system that refuses to acknowledge the continuing effects of slavery on the black community and in the context of a political system broadly opposed to payment of compensation for historical wrongs. Analysis of cases identifies, at least as far as the courts are concerned, mere familial relationship may be insufficient both in respect of standing to bring a case and in respect of the claimed injury. Thus, such claims may be dismissed at an early stage, or fail on technical procedural grounds rather than being lost on the specific merits of the claim.
Contemporary reparations suits face the challenge of establishing present day plaintiffs have standing to bring a case. Several hurdles need to be overcome to establish this issue, not least the existence of an injury personal to the plaintiffs, rather than a “derivative harm”. Accordingly, claims made on behalf of slave descendants often struggle on the grounds the claimants are far removed from the direct injustice caused by slavery (i.e. they were not themselves unpaid labourers or subject to the disciplinary mechanisms of the slave system). Societal denial of systemic or institutional racism also provides a hurdle that needs to be overcome, where claims are situated in present day injustice arising from a historical cause. A specific articulation of the injury suffered – and by whom – emerges as a prerequisite for pursuing a claim.
A second hurdle for litigation is the statute of limitations in bringing a case. Even where plaintiffs raise a case based on twentieth century harms, where the statute of limitations may have only recently expired, or the issue of causation can be argued due to the proximity of events, courts may still reject as time-barred cases that have their basis in more recent injuries.
A third hurdle concerns the precise nature of any reparations to be paid – and questions concerning how any such calculation has been made. For example, where the claim being made is based on a conception of lost wages, these are likely to be estimated or speculative and face potential challenges to the accuracy (and legitimacy) of their accounting. Likewise, where the claims are based on a calculation of corporate profits derived from slavery, such claims may make assumptions about the extent to which such profits can be directly attributed to slavery, as well as facing challenges in establishing a causal link to the actions of predecessor companies.
In Cato, two groups of plaintiffs (collectively “Cato”) filed complaints against the United States for damages due to the enslavement of African Americans and subsequent discrimination against them. The claims sought an acknowledgment of discrimination, an apology, and compensation of $100 million for forced, ancestral indoctrination into a foreign society; kidnapping of ancestors from Africa; forced labour; breakup of families; removal of traditional values; deprivations of freedom; and imposition of oppression, intimidation, miseducation and lack of information about various aspects of their indigenous character. In dismissing the case, the court concluded Cato had not met the required burden of showing a waiver of sovereign immunity, but also noted the claim raised a policy question that fell outside of the judiciary’s authority to address. The appellant Court held:
“Discrimination and bigotry of any type is intolerable, and the enslavement of Africans by this Country is inexcusable. This Court, however, is unable to identify any legally cognizable basis upon which plaintiff’s claims may proceed against the United States. While plaintiff may be justified in seeking redress for past and present injustices, it is not within the jurisdiction of this Court to grant the requested relief. The legislature, rather than the judiciary, is the appropriate forum for plaintiff’s grievances.” (Cato v. United States, 9th Circuit 1995 at 1105)
In 2002, Deadria Farmer-Paelmann filed suit in New York federal court for reparations seeking “compensatory damages, punitive damages, restitution, and an accounting of profits from American slavery”. Nine lawsuits consolidated as In Re African-American Slave Descendants Litigation (2005) were subsequently filed, seeking monetary relief under both federal and state law for harms stemming from the enslavement of black people in America. The plaintiffs brought suit against eighteen companies whose predecessors were alleged to have been unjustly enriched – and to have facilitated crimes against humanity through the transatlantic slave trade and slavery in the United States. The core issue alleged was the various named American corporations had profited from slavery, either by insuring slaves, lending to owners, or, in some cases, being slave owners themselves – and thus, those who were descended from slaves had various civil claims arising from the corporate involvement in slavery. The lawsuits essentially asked the courts to hold various corporate defendants liable for the commercial activities of their (alleged) predecessor companies, before during and after the American Civil War. The court in this case concluded a litigant was required to have “standing” to invoke the power of a federal court and the Supreme Court, in Raines v. Byrd (1997) 521 U.S. 811, had expressed the view that a plaintiff's complaint must establish he has a: “‘personal stake’ in the alleged dispute, and the alleged injury suffered is particularized as to him”. Thus, the court held the claims were barred by the statute of limitations –questioning whether the plaintiffs’ claim to the economic wealth of their ancestors’ labour was conjectural rather than specific – and concluded the speculation claimants would have inherited the claimed lost pay was insufficient to establish a personal injury requiring a remedy. Referring to the decision in Cato and the other slavery reparations cases decided after Cato, the court concluded the allegations of continuing harm did establish a concrete and particularized injury-in-fact.
Themes arising from litigation
Key themes arising from contemporary litigation include issues of standing and denial of injury; denial of responsibility; denial of victims; and condemnation of the condemners. In Farmer-Paellmann v FleetBoston, the courts concluded the plaintiffs had failed to establish they were personally injured by slavery. In the Slave Descendants litigation, the court reached a similar conclusion, noting the plaintiffs could not establish “a personal injury sufficient to confer standing by merely alleging some genealogical relationship to African Americans held in slavery over one hundred, two hundred, or three hundred years ago”. Crucially, the courts have not denied the harms of slavery – and indeed, analysis of both legal commentary and court documents identifies this is acknowledged and largely unopposed within trial discussion. However, what is often disputed is whether a particular plaintiff can establish their direct connection to the injury such that a remedy is required. From a legal perspective, the issues of standing and the “personal” injury claimed, are highly relevant – and set the bar high for cases based primarily on slavery as the cause of the injury.
In Farmer-Paellmann v FleetBoston, Judge Norgle is cited as arguing “present day Americans are not morally or legally liable for historical injustices, that the debt to African Americans has already been paid, and that reparations talk is divisive, immersing African Americans in a culture of victimhood”. the question of whether a clear link can be established between the harms of slavery and a present-day “perpetrator” is a valid one. What the slavery reparations cases consistently show is the courts broadly deny a notion present-day society is responsible for the harms caused by its predecessors.
Victim criticism is also a factor in the dismissal of cases. The Court’s decision in Cato arguably cast doubt on the plaintiffs’ status as victims, while also raising questions about whether there was an injury the judiciary rather than the legislature should redress. The conclusion in Farmer-Paellmann v FleetBoston contested the notion there remained a debt to be paid, and its suggestion the debt to African Americans had already been paid also amounts to a denial of victimhood.
Reparations litigation does not fall into a single homogenous category – but instead incorporates several categories of litigation. While reparations litigation often has slavery as its basis, the object of litigation is often to address ongoing anti-Black discrimination through the identification or appropriate remedies that compensate for continuing disadvantage. Analysis of reparations litigation arguably identifies wider class actions, based on the claims of slave descendants, are unlikely to succeed and have generally failed. But cases situated within “Jim Crow”-era harms, or more contemporary notions of personal harm where anti-Black racism can be demonstrated, have greater chance of success.
Dr Angus Nurse is Head of the Department of Criminology and Criminal Justice at Nottingham Trent University: ntu.ac.uk