If I were to report in this column that members of the Jewish faith living in the United States have sued Egypt because of the benefit that country derives from the stream of tourists to the Pyramids — built in part by Jewish slaves — readers would rightly think I'd lost my mind.
Yet, analogously, that kind of a lawsuit has recently been brought in at least four United States federal courts. Non-slaves have sued non-slaveholders because of the latter's alleged benefit from Seventeenth, Eighteenth, and Nineteenth Century slavery.
A few weeks ago, the Washington Post reported that
[D]escendants of black American slaves in New York and San Francisco filed lawsuits against several major corporations . . . contending that the companies should pay reparations for reaping profits on the backs of people who worked without pay....The complainants argue that corporations benefited from an immoral institution and conspired to continue profiting from slavery even after the practice was outlawed. They seek unspecified damages.
The cultural and political absurdity, not to mention the immorality, of these reparations lawsuits — let alone the whole idea of reparations — has been exposed with unanswerable logic by David Horowitz in his Uncivil Wars: The Controversy Over Reparations For Slavery, as well as by others in this magazine, and elsewhere. What has not been addressed, however, is the fact that these cases, legally, are baseless. Believe me — as a constitutional and appellate lawyer for some forty-three years, it is my considered judgment that these reparations cases are frivolous in the extreme. As such, those who have brought these cases, and those who would do so in the future, risk serious consequences.
Rule 11 of the Federal Rules of Civil Procedure (and comparable provisions in state law) establishes certain standards that lawyers and their clients must comply with whenever they bring a lawsuit. Most non-lawyers are unaware that Rule 11 provides for sanctions if those standards are violated.
The statutory language aimed at baseless lawsuits is clear cut: "By presenting to the court [any] paper, an attorney . . . is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, —
In sum, Section (1) requires a proper motive, Section (2) requires some basis in law, and Section (3) requires present or reasonably anticipated factual support.
it [the paper] is not being presented for any improper purpose . . . . [Rule 11(b)(1)];
the claims . . . and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law [Rule 11(b)(2)];
the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery . . . . [Rule 11(b)(3)].
If any one of these provisions are violated, the culpable lawyers, law firms, or parties can be sanctioned by the court. Subject to certain limitations, the sanctions can be monetary in order "to deter repetition of such conduct by others similarly situated." And the monetary sanctions can be substantial.
As a predicate to the analysis that follows, it needs to be understood that the purpose of civil litigation is to resolve actual disputes between individuals and/or entities arising out of conduct deemed by the law to violate recognized rights (whether those rights have been created by common law, or through the enactment of statutes). Except in actions to declare the rights of parties (e.g., who owns a disputed painting), proof of damages is essential.
In point of fact, everyone knows what civil litigation is supposed to accomplish.
Given this purpose for proper civil litigation, let's zero in on the motive for reparations litigation. For proof that reparations litigation is not properly motivated, we need only read a March 31, 2002 article in The New York Times by Harvard Law School Professor Charles J. Ogletree, Jr., co-chairman of the so-called Reparations Coordinating Committee. Among other things, Ogletree wrote that:
Bringing the government into [reparations] litigation will . . . 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.
Translation: Because Mr. Ogletree's political agenda has not been as successful as he would have liked, because his naked purpose is to subvert the proper function of civil litigation in order to stir up a national debate about slavery and reparations, he and his political bedfellows have shifted their activism from an openly political forum — where ever since 1989, Representative John Conyers has introduced a bill to study slavery reparations, only to see it die each time — to the venue of the federal courts.
This, in my considered judgment, is a clear violation of Rule 11(b)(1).
As for the Rule 11(b)(2) requirement that the complaint in a lawsuit have some basis in law, let's be clear about the statute's intention. The only relevant question is: Can what the plaintiff is complaining about be legally redressed? In other words, a jilted woman cannot sue her ex-boyfriend because the law does not recognize this as actionable conduct. On this score, then, reparations litigation complaints fail miserably — in more ways than there is space here to deal with. I'll spell out just four major deficiencies:
There are no legitimate plaintiffs. The reparations lawsuits have been bought by people who were not slaves, and thus have no grievances. Indeed, in a case brought a few weeks ago, the plaintiffs were described as descendants of slaves. Even if they could prove that allegation (which is well nigh impossible), they have no legal standing to complain about what happened to others — even relatives — over a century ago.
There is no cognizable legal claim. Apart from the undeniable fact — as reprehensible as it was — that slavery was a legal institution, not since the inception of this country has there been what we lawyers call a recognized "cause of action" (e.g. trespass, breach of contract, assault and battery) for slavery, or for anything even remotely connected with that obscene practice.
There are no legitimate defendants. The reparations movement has sued railroads, banks, insurance companies, and the like. Putting aside whether these entities or their predecessors even existed while slavery held sway, there is not, nor can there ever be, the requisite causal connection between the acts of those entities (e.g., lending money to slaveholding plantations) and today's defendants (e.g., alleged descendants of slaves).
There are no provable damages. If the concept of causality has any meaning, today's reparations plaintiffs cannot prove they suffered any damages from the conduct of companies over a century ago, let alone from the named defendants.
Given these fatal flaws in reparations litigation complaints, it is not necessary to examine other problems those cases would suffer even if they survived predictable motions to dismiss them — notably, defenses such as the legality of slavery, statutes of limitations, and the constitutionality of retroactive liability. Clearly, Rule 11(b)(2) has been violated.
Finally, Rule 11(b)(3), which is directly connected to Rule 11(b)(2), requires factual support for a complaint's allegations. Yet,
There is not a shred of factual support that any reparations litigation plaintiff has a personal stake in his case.
There is not a shred of factual support that anything legally actionable was done.
There is not a shred of factual support that any defendant did anything — actionable or not — to any plaintiff.
There is not a shred of factual support that any reparations litigation plaintiff suffered any damages.
There is not a shred of factual support that even if the plaintiff, the defendant, and the cause of action requirements of a nonfrivolous complaint were satisfied, a case would survive the statute of limitations — whatever that might be after nearly 150 years.
Rule 11(b)(3), like the other two sections, has been violated.
If ever the imposition of sanctions under Rule 11 were warranted, it is in the reparations litigation. These ersatz plaintiffs should be ordered to pay sizeable sums of money for their callous abuse of our rules of civil procedure.
It should be noted that there is much more at stake here than safeguarding the integrity of our civil justice system. It is important for us to prevent race hustlers from enlisting the judicial process in a campaign of extortion, one that has already infected our political and economic system. At stake, as well, is the integrity of our federal judges. They must recognize reparations litigation for what it is and reject the reparation movement's insidious attempt to induce, and capitalize on, collective guilt.
During the Civil War and its aftermath, in the wounds that continue to divide Americans today, our Nation has paid many times over the price that Mr. Ogletree and his comrades in the reparations movement seek to exact from us in baseless lawsuits. It is time that they be told by our courts, and by individual Americans, that enough is enough.