Reparations Talk: Reparations for Slavery and the Tort Law Analogy

Abstract

There are two ways of viewing tort law in the debate over reparations for racial crimes. First - and most commonly - tort law is seen as a way of providing relief through courts. So Reparations Talk begins by exploring the requirements for lawsuits for reparations for slavery and for the Jim Crow era. It suggests some instances where lawsuits might be appropriate, such as riots, lynchings, and segregated libraries, and limited cases involving slavery. Tort doctrine also offers, however, a way of framing discussions of moral culpability. Reparations Talk, thus, moves beyond lawsuits to discuss some ways that tort law and unjust enrichment doctrine might be used to think about issues in reparations, such as how should claims by descendants of slaves be evaluated? How do we treat issues of causation across generations? It suggests several damages formulas as starting points for contemplating legislative reparations. Reparations talk concludes that, although it may be difficult to compute the exact amount of harm or to figure out where current generations would be without the crimes of slavery and Jim Crow, that discussion of reparations may benefit from the clarity that contemporary legal doctrine can bring to the subject, even as we struggle to define the precise goals of reparations.

Keywords: reparations, slavery, Jim Crow, unjust enrichment