Some Conceptual and Legal Problems in Reparations for Slavery

Abstract

Now that reparations talk is being taken seriously, it is time to address reparations plans more fully. After discussing why reparations talk has become popular, the paper turns to conceptual problems associated with claims for reparations for slavery: whether courts are the appropriate place to look and whether American law is even equipped to deal with such claims. It addresses three problems in particular: the use of unjust enrichment analogies in reparations talk; the constitutionality of race-based remedies, such as reparations; and the types of remedies for harms where the most directly affected people are no longer alive. A final section places reparations talk into the context of the cultural war over redistribution of property on the basis of race.

Keywords: reparations, slavery, unjust enrichment, affimative action, Jim Crow, riots