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'Too Big to Remedy'?: Rethinking Mass Restitution for Slavery and Jim Crow

57 Pages Posted: 9 Oct 2013  

Kaimipono David Wenger

Thomas Jefferson School of Law

Date Written: October 8, 2013

Abstract

Just as some banks or insurance companies may be viewed as "too big to fail," are there some mass harms that are simply "too big to remedy"? This article examines that question using the lens of claims arising from the history of slavery and the "Jim Crow" system of racial segregation. Slavery and Jim Crow inflicted horrific harms on Blacks in America. Official silence aggravated that harm, as neither victims nor their descendants received any monetary restitution, nor even (until very recently) any official apology. Reparations advocates have repeatedly called for compensation to slave descendants. But how exactly does society compensate for slavery? Of course, compensation for mass injustice is always difficult to calculate and administer. Slavery puts the normal concerns of mass compensation into sharp relief and adds a whole new set of unique concerns for courts, legislators, and scholars.

This article uses slavery and Jim Crow harms as a case study to examine some of the difficult questions that arise in mass restitution cases. The article argues that some reparative action is needed in the case of slavery and Jim Crow; the longstanding lack of response only reinscribes injury. However, traditional tort compensation is inadequate. Victims cannot be truly compensated. Only symbolic restitution is possible.

Ultimately, slavery and Jim Crow seem "too big to remedy" under the legal system. Because true restitution is impossible, we must consider other options based on our ideas of justice. Thus, responding to slavery challenges us to rethink both the goals of restitution and our underlying conceptions of justice. Reparative measures, while they cannot make victims whole, can play important roles in society and benefit victims in other ways. The article examines how the goals of restitution can be advanced though various non-tort or otherwise non-traditional approaches, including restorative justice and atonement, microreparations and apology, storytelling, and the traditional Hawaiian remedy of ho'oponopono.

Keywords: slavery, Jim Crow, African Americans, segregation, reparations, restitution, restorative justice, atonement, microreparations, storytelling, Hawaiian law, ho-oponopono

JEL Classification: K19, K39

Suggested Citation

Wenger, Kaimipono David, 'Too Big to Remedy'?: Rethinking Mass Restitution for Slavery and Jim Crow (October 8, 2013). Loyola of Los Angeles Law Review, Vol. 44, No. 1, p. 177, 2010; Thomas Jefferson School of Law Research Paper No. 2337828. Available at SSRN: https://ssrn.com/abstract=2337828

Kaimipono Wenger (Contact Author)

Thomas Jefferson School of Law ( email )

1155 Island Ave
San Diego, CA 92101
United States
619-961-4347 (Phone)

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