Chapter IX: The Case for Reparation
D. Post-Holocaust
9.3 The Causation and Attenuation Argument of Reparations
This sub-section will deal with causation and various attenuations arguments for reparations.
9.3.1 Causation in Tort Liability
Causation in tout liability demands an evidence of proximate causation.806 Claimants must prove not only conceptual “but-for” causation; that “but for” a party’s actions, the harm would not have occurred – but must also establish legally actionable “proximate cause.”807 In reparations cases, the attenuated nature of the harm makes it difficult to show proximate cause.808 Attenuation is diminished causation.809 Attenuation is seen as a conceptual separation between two actors, events, a dilution and weakening of the conceptual connection between the two. Therefore, attenuation severe theoretical “but-for” causation from legally actionable proximate cause. Attenuation arguments, as propagated in the debate for reparations, can be divided into three parts, namely: victim attenuation, wrongdoer attenuation, and act attenuation.
805 Brooks, Roy L., Getting Reparations for Slavery Right: A Response to Posner and Vermeule, in The Notre Dame Law Review, 1982, 2004, p. 275,.
806 Wright, Richard W., Causation in Tort Law, 73 Cal. L. Rev., 1985, pp. 1735, 1737-1739; Calabresi, Guido, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U. Chi. L. Rev., 1975, pp. 69-72.
807 Price, Elisabeth C., Toward a unified Theory of Products Liability: Reviving the Causative Concept of Legal Fault, 61 Tenn. L. Rev., 1994, pp. 1277, 1347; Forde-Mazrui, Kim, Taking Conservatives Seriously: A Moral Justification for Affirmative Action and Reparations, 92 Cal. L. Rev., 2003, pp. 683, 727; Keeton, W. Page et al, Prosser and Keeton on Law of Torts, West 5th ed., 1984, pp. 264, 301-308; See 57A AM. JUR. 2D Negligence § 491 (2004). “For such consequences the original wrongdoer is responsible, even though he or she could not have foreseen the particular results which did follow or results of a similar nature”; Gray, Oscar S., The Law of Torts, (Aspen 2nd ed.) 1986, pp. 86-87.
808 Massey, Calvin, Some Thoughts on the Law and Politic of Reparations for Slavery, 24 Boston College Third World L.J., 2004, pp. 157, 166; Hackney, James R., Jr., Ideological Conflict, African American Reparations, Tort Causation and the case for Social Welfare Transformation, 84 B.U. L. Rev., 2004, p. 1193; Alcausin, Hall, Art, There is a lot to be repaired before we get to Reparations: A critique of the underlying issues of race that impact the fate of African American Reparations, 2 Scholar 1, 2004, pp. 42, 52; Posner, E. & Vermuele, A., Reparations for Slavery and Other Historical Injustices, 103 Columbia. Law Review, 2003, pp. 689, 708.
809 Spadola v. N.Y.City Transit Auth., 242 F. Supp. 2Nd, (S.D.N.Y. 2003), pp. 284, 294; see 57 AM. JUR. 2D Negligence
§§ 465, 491 (1989 & Supp. 2000).
Victim attenuation is advanced in the argument that modern African Americans have no direct connection to slaves; wrongdoer attenuation argues that modern Americans tend to lack specific individual connection to slave holders; and act attenuation articulates the idea that modern injury to African Americans is unrelated to the harms of slavery.810 And above all, the concepts from mass tort jurisprudence that may apply to reparations debate shall also be the object of analysis here.811
However, claims for slavery reparations consist of two major constituents of tort law, i.e. tort and unjust enrichment.812 Historically African American slaves went through many deprivations that could potentially ignite tort liability.813 They suffered harms, physical injury, loss of property, lost wages, loss of liberty, loss of family and family relations, loss of consortium and mental anguish.814 And also their descendants suffered and are still suffering today from residual racism, a consequence of slavery. 815 It is difficult to put this concept in a water tight compartment claims arising from slavery because it is unclear whether slave owners hold a legal duty to slaves, or whether they hold any duty to slave descendants.816 Nevertheless, it could be argued that slave owners indeed hold a duty to slaves or their descendants, or that they ought to know that the regime of slavery was legally dubious in a way that they should be held responsible to have owed a duty to slaves or their descendants.817 I shall work on the hypothesis, in order to focus on causation concept, that slave owners owed the duty either to slaves or to their descendants and tort compensability of slavery is not negated by its legality at the time.818 Conversely, unjust enrichment claims defer from tort claims.
810 Brophy, Alfred L., Some Conceptual and Legal Problems in Reparations for Slavery, 58 N.Y.U. Ann. Surv. Am. L., 2002, pp. 497, 505-509; Posner, E. & Vermeule, A., Reparations for Slavery and Other Historical Injustices, 103 Colum.
L. Rev., 2003, pp. 698-699; Hylton, Keith, N., A Framework for Reparations Claims, 24 B.C. Third World L.J., 2004, pp.
39-40; Robinson, Alfreda, Corporate Social Responsibility and African American Reparations: Jubilee, 55 Rutgers L.
Rev., 2003, pp. 309, 365; Hackney, James R., Jr., Ideological Conflict, African American Reparations, Tort Causation and the case for Social Welfare Transformation, 84 B.U. L. Rev., 2004, pp. 1195-1197.
811 ibid. n. 810 Brophy, Alfred L., p. 519; ibid. n. 810 Posner, E. & Vermeule, A., p. 739; ibid. n. 810 Hackney, J. R., Jr., pp. 1195-1197; ibid. n. 810 Hylton, Keith, N., pp. 31, 43; see also Brophy, Alfred L., Reconstructing the Dreamland:
The Tulsa Riot of 1921, 2002.
812 ibid. n.810 Brophy, Alfred L., p. 516; Robinson, Randall, quoted in Winbush, Raymond A., Should America Pay?
Slavery and the Raging Debate on Reparations, New York: HarperCollins, 2003, p. 33; Wenger, David, Slavery as a Takings Clause Violation, 53 Am. U.L. Rev., 2003, pp.191, 193.
813 Sebok, Anthony J., Two Concepts of Injustice in Restitution for Slavery, 84 B.U. L. Rev., 2004pp. 1405, 1417.
814 Hylton, Keith, N., Slavery and Tort Law, 84 B.U. L. Rev., 2004, pp. 1209, 1213-1237; ibid. n 813, p. 1417; Hopkins, Kevin, Forgive U.S. Our Debts?, Righting the Wrongs of Slavery, 89 Geo. L.J., 2001, pp. 2531, 2534.
815 ibid. n. 812 Wenger, D., pp. 224-226.
816 Keeton, W. P. et al, Prosser and Keeton on Law of Torts, 1984, pp. 301-320; ibid. n. 810 Brophy, A. L., p. 516
817 ibid. n. 814 Hylton, Keith, N., p. 1212.
818 ibid.
While a tort claim is a claim at law arising from a breach of duty or negligent or intentional harm, and unjust enrichment claim is a hybrid claim in law and equity and requires therefore, a claimant to show only that a defendant unjustly obtained some benefits from the claimant that should be refunded.819 The measure of damages are the amount of unjust claims.820 These concepts have been used successfully in Holocaust and Tobacco cases that shall be expanded in subsequent discussions.821
Academics are divided on the appropriateness of these concept in reparations.822 While some have suggested that economic laws should be treated as non discernible,823 others suggested that economic law claims ought to be viewed as discernible,824 and one scholar also argued that unjust enrichment is the only viable strategy remaining for reparations quagmire.825 That means in de facto that successful litigation of an unjust enrichment claim will result in defendants paying unjust enrichment damages and based on whatever amount of unjust enrichment they received from their acts. Thereafter, slave descendants will recover the amount of enrichment that the defendants gained through involvement in slave labour or the slave trade. There is also the problem of reparations between ancestor-based and descendants-based theories. The two theories have their own advantages and disadvantages. While the ancestor-based approach will have no problem showing harm because the harms done to the slaves are historically and adequately documented.826 However, “since no slaves are currently alive, ancestor-based approach encounters difficulties on remedy: should a slave descendant receive remedies for harms done to an ancestor?”827 A descendant-based approach omits that difficulty but encounters another problem. The descendants may have less problem in establishing the claimants remedy since they can prove that a harm has been done to them.
819 Sebok, Anthony J., Two Concepts of Injustice in Restitution for Slavery, 84 B.U. L. Rev., 2004, p. 1427; see also Sebok, Anthony J., Reparations, Unjust Enrichment, and the Importance of Knowing the Difference Between the Two, 58 N.Y.U. Ann. Surv. Am. L., 2003, pp. 651, 654-655; Brophy, Alfred L., Some Conceptual and Legal Problems in Reparations for Slavery, 58 N.Y.U. Ann. Surv. Am. L., 2002, p. 521.
820 Sebok, Anthony J., Prosaic Justice, Legal Aff., 2002, pp. 51-52; Sherwin, Emily, Reparations and Unjust Enrichment, 84 B.U. L. Rev., 2004pp. 1443, 1447-1449.
821 Sebok, Anthony J., Reparations, Unjust Enrichment, and the Importance of Knowing the Difference Between the Two, 58 N.Y.U. Ann. Surv. Am. L., 2003, pp. 653, 655; ibid. n.820 Sebok, Anthony J., pp. 52-53; ibid. n.820 Sherwin, Emily, pp. 1449-1451; ibid. n. 819, Sebok, Anthony J., Two Concepts, pp. 1407, 1418.
822 ibid. n.819, Sebok, Anthony J., Two Concepts, pp. 1440-1442; ibid. n.820, Sherwin, Emily, p. 1454-1465; Dagan, Hanoch, Restitution and Slavery: On Incomplete Commodification, Intergenerational Justice, And Legal Transitions, 84 B.U.L. Rev., pp. 1139, 1158-1163.
823 ibid. n. 819 Sebok, A. J., Two Concepts, pp. 1431-1441.
824 ibid. n. 822 Dagan, H., pp. 1158-1164.
825 ibid. n. 820, Sebok, A. J., p. 52.
826 Knull, Andrew, Restitution in Favour of Former Slaves, 84 B.U. L. Rev., 2004, p. 1277.
827 Wenger, Kaimipono David, Causation and Attenuation in the Slavery Reparations Debate, in University of San Francisco Law Review, 1967, p. 286 (2006).