Slave reparations are once again in the news. For a change, the news is good and offers some hope that the federal judiciary can – once in a while – do the sensible thing. In an opinion released just last week, U.S. District Judge Charles Ronald Norgle dismissed a consolidated lawsuit seeking reparations from corporate America for its role in the perpetuation of slavery in the United States. (In re African-American Slave Descendants Litigation, 2004 U.S. Dist. LEXIS 872 (N.D. Ill. Jan. 26, 2004)).
The named Plaintiffs in this class action sought dollars on behalf of “descendants of formerly enslaved Africans” as well as all living “formerly enslaved African-Americans.” That’s right – former slaves who are still living. Though the Thirteenth Amendment ended slavery in the United States in 1865, several of the Plaintiffs claimed to have been held as slaves until the 1960s. Plaintiff C. Doe alleged that through the 1960s he and his family “were forced to live on the slave quarters of a plantation that grew numerous agricultural crops” and that the corporate Defendants “had reason to know of the construction of forms of slavery yet failed to take steps to eliminate the same, while they continue to inure benefits form [sic] the illegal, but sanctioned system of servitude Post-Emancipation.” Quite an interesting allegation. If C. Doe was involved in agriculture in the 1960s, he was likely raising and smoking things prohibited by the federal Controlled Substances Act.
Along with alleged ties to the slavery, all corporate Defendants in the suit also happened to have very deep pockets. The Defendants were a who's who of the Fortune 500. (Although we all know that social justice rather than greenbacks was the motivating force behind the lawsuit.)
For example, Brown Brothers Harriman was target because its predecessor corporations “loaned millions directly to planters, merchants and cotton brokers throughout the South.” New York Life earned the Plaintiffs’ vitriol because its predecessor corporation “earned premiums from its sale of life insurance to slave owners.” Westpoint Stevens, the successor-in-interest to Pepperell Manufacturing, was sued because it “utilized cotton from Southern planters farmed by enslaved Africans.” In addition to these companies, Plaintiffs also sued FleetBoston Financial Corporation, CSX Corporation, Aetna Inc., Lloyd’s of London, JP Morgan Chase Manhattan Bank, and RJ Reynolds Tobacco Company, just to name a few.
The Defendants raised four defenses to Plaintiffs’ suit: (1) Plaintiffs had no standing to bring suit against them, (2) Plaintiffs’ claims were non-justiciable political questions left to the representative branches of government, (3) Plaintiffs failed to state a proper claim, and (4) Plaintiff’s claims were time-barred. Though the Court agreed with the Defendants on all four points, the standing issue best illustrates the ridiculousness of Plaintiffs’ suit.
When courts say that a litigant must have standing, they mean that he must have a significant stake in the controversy to merit being the party to litigate it. First, courts require that a plaintiff must have suffered an injury in fact – a concrete and particularized injury, and not a speculative or conjectural injury. Second, there must be a causal connection between the injury and the allegedly harmful conduct. Finally, the injury must be addressable by a favorable decision from the court.
In the reparations case, the Plaintiffs argued that slaves suffered a concrete injury and that the descendants of slaves were injured because they were denied the economic wealth of their ancestors’ labor which would have been passed to them via inheritance. They also argued that blacks in America “still endure daily indignities from the legacy of slavery, including . . . racial profiling, racial slurs, and improper and hurtful assumptions regarding their overall status.” Plaintiffs then linked to slavery shorter black life expectancies, black-on-black crime, and a high incidence of incarceration.
Judge Norgle began by noting that the Plaintiffs’ injuries were based on pure speculation. The supposed injuries were clearly derivative of the injury inflicted upon enslaved blacks. The corporate Defendants, even if they had been involved in African slavery, had done nothing to the Plaintiffs. As for the slave ancestors, the Plaintiffs had also failed to establish that any corporate Defendant had any a connection to the ancestors. The fact that Brown Brothers, for example, loaned money to Southern planters and merchants was insufficient to establish a logical nexus between the ancestors and the injury.
The judge also pointed out the broad assumptions made by Plaintiffs in bringing suit. For instance, while we all would like to believe that we will be the recipients of our ancestors’ bounty upon their demise, this is a mere assumption. There is no guarantee that our ancestors will have wealth to pass on to us or that they will choose to pass it to us. And this flimsy expectation of some bequest is not enough on which to base a lawsuit.
The “stigmatic injury” also fell short of a concrete and particularized injury. Plaintiffs simply highlighted perceived social ills and demanded dollars from the corporations. While this might work when Jesse Jackson shakes down a corporation for failing to have sufficient numbers of blacks in the workforce or in management, the legal system imposes a more rigorous requirement.
Judge Norgle dismissed the suit “without prejudice,” meaning that the Plaintiffs’ attorneys can file another complaint. He gave them two weeks to decide whether to refile or to appeal the dismissal. Rather than being so generous, Judge Norgle should have sanctioned the Plaintiffs’ for filing a frivolous lawsuit and dismissed the case “with prejudice.”
It’s bad enough that slave reparations are a serious topic of discussion in political circles, but at least Congress, in theory, could appropriate money to dole out to the descendants of slaves. There would, of course, be various difficulties encountered, such as deciding whether to pay the descendants of the 3000 black slave owners in the ante-bellum United States, but Congress could spend the money.
That courts are plagued with reparations suits is but more evidence that our justice system is looked on as a political branch. Unfortunately, judges today make public policy all the time, whether it is sanctioning gay marriage or creating some other new “right” out of whole cloth. We can at least be thankful that Judge Norgle made the right call in this matter, but who knows what will happen if the Plaintiffs refile or appeal? The quest reparations (along with sizeable attorneys’ fees) is not over yet.William J. Watkins, Jr., is an attorney practicing in Greenville, South Carolina, a research fellow at the Independent Institute, and the author of the recently released Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and their Legacy (Palgrave MacMillan, 2004).