Causation and Attenuation in the Slavery Reparations Debate
Kaimipono David Wenger
Thomas Jefferson School of Law
University of San Francisco Law Review, 2006
TJSL Public Law Research Paper No. 05-16
The success or failure of slavery reparations will depend on causation. Many criticisms of reparations have focused on the attenuated nature of the harm, suggesting that modern claimants are not connected to slaves, that modern payers are not connected to slave owners, and that harms suffered by modern Blacks cannot be connected to slavery. This Article examines these attenuation concerns and finds that they come in three related but distinct varieties: Victim attenuation, wrongdoer attenuation, and act attenuation. These three components, defined in this Article, show themselves in a number of interrelated legal and moral arguments.
The Article then discusses how ideas about causation from the mass tort context can help address the problems of attenuation in slavery reparations. Mass tort cases have developed novel methods of showing causation, such as statistical evidence and market share liability, and these tools can be used in the reparations context. These concepts, if used within the reparations context, could help overcome attenuation.
Number of Pages in PDF File: 60
Keywords: Slavery, reparations, mass torts, causation, attenuation, statistical evidence, civil rights
JEL Classification: K10, K13
Date posted: October 13, 2005 ; Last revised: March 26, 2009