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Causation and Attenuation in the Slavery Reparations Debate

60 Pages Posted: 13 Oct 2005 Last revised: 26 Mar 2009

Kaimipono David Wenger

Thomas Jefferson School of Law

Abstract

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.

Keywords: Slavery, reparations, mass torts, causation, attenuation, statistical evidence, civil rights

JEL Classification: K10, K13

Suggested Citation

Wenger, Kaimipono David, Causation and Attenuation in the Slavery Reparations Debate. University of San Francisco Law Review, 2006; TJSL Public Law Research Paper No. 05-16. Available at SSRN: https://ssrn.com/abstract=600021 or http://dx.doi.org/10.2139/ssrn.600021

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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