Reparations and the Law

Claims for reparations raise several legal issues. Given that slavery ended in 1865, there is some question as to whether such claims are allowed by the statute of limitations, which limits the period during which a suit may be brought. In New York, where activists recently filed a class-action suit against companies that allegedly profited from slavery, the statute of limitations depends on the type of suit. In this case, the plaintiffs allege that the defendants’ predecessor companies misappropriated the value of slave labor and the profits that resulted from it. Any reparations suit is also likely to claim that forced labor, torture, rape, starvation, etc. were part of a system from which whites knowingly benefited.

If a suit is for replevin (the return of personal property wrongfully taken) then New York has a three-year statute of limitations that begins when the owner demands that the property be returned. If a suit is for wrongful death the statute of limitations is generally two years from the date of death. If the suit is brought for an intentional tort, such as assault, battery, or false imprisonment, the statute of limitations is one year. The statute of limitations would appear to have expired on reparations claims of this kind, though a plaintiff may appeal for suspension of the statute, claiming that time was needed to research family or corporate records.

As Professor Michael Levin has pointed out, today’s blacks do not have standing to sue for compensation because they were not, themselves, harmed by slavery. A person has a compensatory-justice claim only if he has been unjustly harmed. The notion of harm involves a comparison of the claimant’s condition in the actual world in which the injustice occurred, with what his condition would have been had the injustice not occurred. No such comparison can be made in the case of the descendants of slaves, because if there had never been slavery, the reproduction pattern among blacks would have been far different, and today’s descendants would not exist. They can hardly claim to be harmed by slavery, since it caused them to exist.

There is another obstacle to reparations suits, in that redress is sought not for slaves themselves but for descendants many generations removed. The descendants might claim to have inherited slaves’ claims to compensation, but claims do not automatically pass from one generation to another. They have to be recognized to exist, and must be formally passed on just like an uncollected debt. If slaves or their children thought they had a valid claim for compensation they could have sold it at a discount like a bond in default, donated it to the Baptist Church, or used it to pay rent. The current descendants have no substantiated claims in a legal sense, so inheritance is a weak basis on which to ask for compensation years later. In any case, while these inherited claims could conceivably give rise to a moral obligation to pay damages, it is doubtful they could be a legal obligation. This is why claims of this kind should be thrown out of court and handled — if at all — in the political arena.

These legal claims are likely to fail. They probably run afoul of statute-of-limitations requirements. More important, the descendants lack standing by which to bring suit since they were not harmed by slavery, and were probably not denied their inheritance. Their case ought to fare no better in the political arena, but given the widespread black support for reparations (55 percent support it according to a CNN/USA Today/Gallup poll taken in February) and the importance of blacks to the Democratic Party, reparations proposals are likely to reappear in Congress and state legislatures.