Thursday, April 04, 2002

Remember the Harvard Black Afro-American Studies department? While Cornel West still considers decamping for Princeton, his colleague Charles Ogletree has turned from the narrow pursuit of personal career goals to the more noble cause of slavery reparations.

But a few things about the quest are puzzling. Like the choice of plaintiffs. Says Ogletree, "Brown University, Yale University and Harvard Law School have made headlines recently as the beneficiaries of grants and endowments traced back to slavery and are probable targets." Brown, in fact, was originally endowed by a family which (like quite a few New England grandees of the time) made their money on the slave trade. But the University that bears their name is not accused of slave trading itself, just of taking their money. If it can be sued, how about all the other recipients of their tainted cash? Their descendants? Their shipbuilders? The descendants of the shipbuilders? (If the ships were purpose built, it's at least as strong a case).

And then there's the question of where the cash will go. Says Ogletree:

The reparations movement should not, I believe, focus on payments to individuals. The damage has been done to a group - African-American slaves and their descendants - but it has not been done equally within the group. The reparations movement must aim at undoing the damage where that damage has been most severe and where the history of race in America has left its most telling evidence. The legacy of slavery and racial discrimination in America is seen in well-documented racial disparities in access to education, health care, housing, insurance, employment and other social goods. The reparations movement must therefore focus on the poorest of the poor - it must finance social recovery for the bottom-stuck, providing an opportunity to address comprehensively the problems of those who have not substantially benefited from integration or affirmative action.

But the government, which Ogletree plans to include as a plaintiff, and which has more money than the rest of them put together, already is disbursing funds targeted at that class of individuals --- welfare programs among others. So, in effect, Ogletree isn't proposing so much to rectify specific damages to specific individuals (well-off blacks, he says, don't need to get much), as to take an entire class of social programs out of the hands of Congress, and give them to the courts. Would the courts also get taxing authority to raise funds for the government programs they would create as part of the reparations process? (And by the way, do funds already disbursed through those programs count against reparation damages?)

Lastly, there's the question of motive. You'd think a lawsuit would be narrowly aimed at discovering the appropriate damages for a specific tort. But Ogletree casts a wider net:

Bringing the government into litigation will also generate a public debate on slavery and the role its legacy continues to play in our society. The opportunity to use expert witnesses and conduct extensive discovery, to get facts and documentation, makes the courtroom an ideal venue for this debate.

A full and deep conversation on slavery and its legacy has never taken place in America; reparations litigation will show what slavery meant, how it was profitable and how it has continued to affect the opportunities of millions of black Americans.

Litigation is required to promote this discussion because political accountability has not been forthcoming. ...

So Ogletree thinks that just about the entire experience of blacks in America is grist for assessing the damages. I guess he wants to be the first academic ever granted the power of subpoena to further his social research.

Civil courts do not exist to "generate public debate". They exist to adjudiciate disputes on narrowly considered factual situations, according to relevant law. In fact, they have rules of evidence which are designed to exclude facts which are not directly relevant to the legal issues at hand. This is not a process which lends itself to "full and deep conversation". The land claims of the Sioux, the damages done to interned Japanese during World War II, the discriminatory loan policies of the Agriculture department --- precedents which Ogletree cites (well, not the Sioux, but he should have) --- were all cases designed at redress of grievances for specific government acts, not everything that has ever happened to Indians, Japanese, or Blacks in America. "A full and deep conversation on slavery and its legacy" might be a good thing, but a civil court is not the right venue.

This seems to be an outbreak of one of the nastier infectious memes that infests the United States: "If you don't like what you're getting out of life --- your house, your job, the tenor of public debate on your pet issue --- find someone to sue." But this is a new strain. Fortunately, it doesn't seem virulent. At least not yet.


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