Do We Really Want Class-Action Lawyers Leading The Movement For Reparations?

In the past year the debate for reparations has lurched forward in dramatic fashion. For years the subject was discussed in the abstract, usually in private or all-Black settings. That all changed a year ago with the publication of Randall Robinson's book The Debt which makes the case, rather persuasively, in the eyes of many, that reparations are due to Black Americans for slavery and its legacy. The book inspired increased discussion and mobilization among Black politicians and civic groups around the formulation of an effective strategy by which Blacks would obtain reparations in cash form or otherwise.

The issue even made its way into presidential politics, if only for a month, when Robinson put his support behind Green Party presidential candidate Ralph Nader who subsequently placed reparations, which he referred to as "restitution", in his platform for president. BlackElectorate.com interviewed both men about their decision to support the call for reparations.

As Nader only managed 3% of the popular vote for president, and because Al Gore offered quiet sympathy for the issue and Bush ignored it altogether, the Black community found itself after the election, with increased popular support for the issue but with little political support to go with it. And possibly most disappointing of all - a result of the Democrats' failure to take back control of the House of Representatives was that the leading advocate of reparations in the Black political establishment, Rep. John Conyers (D-MI), was not able to assume the chairmanship of the House Judiciary Committee where his bill that would mandate a Congressional study of reparations has languished for several years.

For years, in the Black community, the issue of reparations has been seen as a political issue to be handled, eventually, and directly, by the US Congress. But in recent months the issue has begun to be viewed as one that may be best handled in the courts with a group of high-profile lawyers filing a class-action lawsuit against either the federal government, state governments, corporations that profited directly from slavery or individuals and families that accumulated and inherited wealth that derived from slave ownership and trading.

The new strategy became public knowledge when Harper's magazine ran a cover story in its November issue that was a running conversation between several class-action lawsuit lawyers who have had success with these types of lawsuits, on other issues. The participants in the conversation look like a legal all-star team. Present were Willie E. Gary who won a $500 million judgment against The Loewen Group Inc.; Alexander J. Pires Jr. who won a $1 billion settlement for Black farmers against the US Department of Agriculture; Richard F. Scruggs who won a $368.5 billion settlement against the tobacco company; and Dennis Sweet who won a $400 million settlement in the "fen-phen" diet case.

This new development and discussion has caused both reparations supporters and opponents to raise eyebrows as both sides recognize that a class-action lawsuit on behalf of Black Americans changes the dynamics of the reparations debate altogether.

We think that the latest development in the reparations drama has had a positive impact in increasing awareness of the issue and in raising the quality of the dialogue over the issue but we also have recognized a danger for those of us who think that reparations are deserved and can eventually be obtained.

The problem with moving the reparations fight out of the political arena and into the realm of the courts is that the political arena allows one to make new laws and remedies while fighting within the legal system forces one to fit one's case into legal precedents and existing statutes and laws that are ill-equipped to handle an issue as unique and vast as reparations.

Several legal questions immediately jump out as one ponders suing for reparations. And the legal "dream team" has already recognized many of these problems.

According to Brooklyn Law School Professor, Anthony J. Sebok, there are some major problems with seeking reparations through a class-action lawsuit.

Most obviously, Professor Sebok points out that the federal government has sovereign immunity and actually has to agree to allow itself to be sued. How likely is that?

Professor Sebok also believes that states are covered by sovereign immunity as well. If Sebok is correct then half of the potential categories of defendants have been eliminated.

Next on the list of potential reparations defendants would be individuals and corporations. Prof. Sebok believes that individuals make for difficult potential defendants because of the difficulty in finding and tracking the actual transfer and inheritance of wealth among slave holding families. That is not to say that such efforts cannot be successful. But how much would they yield when compared to the millions of Blacks who are descendants of slaves in this country?

Corporations make for the easiest target, Sebok believes because they have easily accessible records, huge cash reserves, are prone to public pressure and fall under successor corporation laws that make it easier to sue a company that obtained part of its wealth from slavery and which has been sold or merged numerous times.

Adding up the corporations and wealthy individuals and families that can be connected to slavery sure doesn't hold much promise for Blacks who are seeking a significant settlement for slavery and its legacy.

And there is a remaining problem in that the crimes of slavery like false imprisonment, assault, battery and kidnapping have statute of limitations attached to them leaving the victims or their survivors only a six-year window in which to file claims. That presents a problem for the part of the reparations suit that deals with slavery from 1555 until the 19th century.

That is not to say that this tort problem cannot be gotten around. There are three possible ways to get around it.

The first would be to change the statute of limitations laws as Sebok points out California did in reference to Holocaust-related lawsuits. The other option would be to take the claims to international court where it is recognized that those who commit crimes against humanity must make reparation.

There are several cases where reparations have been made under international law. In 1952, the Federal Republic of Germany paid Israel $222 million; Japan has made payments to South Korea and of course, most recently the United Nations Security Council passed a resolution, binding in international law, requiring Iraq to pay reparations for its invasion of Kuwait. Third, the nature of the claim could be changed from a tort claim to an unjust enrichment claim. This type of claim focuses on the stolen property that was obtained through the commission of torts. It focuses on returning lost property or its financial equivalent to the rightful owner(s).

But all three options have major challenges. Changing the statute of limitations by law again returns the matter into a political affair across state lines, with no guarantees for success, that may draw the resolution of cases out for years upon years and which may result in a minority of Blacks in certain states receiving compensation before others. The international court approach has its major drawbacks in that currently there may be no international court of law in which a reparations claim could be made. This is because the International Court of Justice, for instance, is set up to hear claims by one state against another. In the case of an international reparations argument there are numerous Blacks in Africa and the Western Hemisphere in several countries who have a legitimate claim for reparations. What "state" would represent them? A possible resolution to this problem could occur if the Organization of African Unity OAU is successful in its plans to form a "United States of Africa" which would merge 54 African nations into one union. If this occurred it would be possible for all of Africa to make a claim against the US, England, France, Spain and Portugal, for example.

In America, if a group of Blacks were to separate and form a new nation, they too could have their case for reparations recognized in international court. This is what happened with Israel in 1952. At the time they were a new nation made up of survivors and the descendants of the holocaust, yet received financial compensation from Germany and receive the same today. They are a new state, that in a court of law, could represent a people seeking reparations for crimes committed before the state in which they now live was established.

The third option of an unjust enrichment is maybe the most powerful argument against a class-action strategy. By moving the argument away from the crimes of slavery and toward the property that was transferred as a result of the crimes, the suffering of the slaves and their descendants is marginalized and even trivialized. As Professor Sebok writes, "…to call the wrong of slavery a failure to pay for forced labor is to suggest that the wrong of slavery is that, after they were kidnapped, beaten, and abused, Africans and their descendants were not salaried."

And it is this argument that points to the real crux of the reparations debate.

The bottom line is that nothing can be done by any government on this earth to restore the health, heart, mind and souls of Blacks that were damaged and destroyed as the direct result of slavery.

The best that can be sought from external powers is justice, under the law, and a measure of equity.

In a very real sense there is a tremendous difference in seeking justice for reparations and equity for reparations. Blacks often claim to seek both but in this case it may not be possible to obtain both - in either US courts or international courts.

Justice under the law can be provided by the successful pursuit of class-action lawsuits, most likely filed against individuals, families and corporations but is that really fair, in the ultimate sense? Is such a lawsuit fair to the numerous Blacks who will not obtain any benefit from the limited resources that can be obtained from these few individuals, families and corporations? Is it fair to the few who are "caught" - who have to bear the burden of several generations while their "guilty" peers who profited from slavery but escaped detection by circumstance.

We believe that justice to both Black and White cannot occur under such an arrangement. While it is tempting to get whoever can be found, that is not fair or just in the sense that the word equity applies.

Justice, in this case, deals with the proper administration of laws that are on the books while equity deals with justice administered according to fairness, and even a divine standard of right and wrong, above and beyond what is on the books of national or international court.

The legal maneuvering necessary to "win" a class-action lawsuit does not ensure that atonement, reconciliation and responsibility has taken place. It only means that several Blacks will receive cash payments for their suffering and that of an entire people. While class-action lawyers focus on how to win a case, Blacks should be focusing on how to win repair, which goes far beyond simply receiving cash payments.

As 1998 Nobel Prize Winner Amartya Sen has written, income does not equate to freedom. As he points out, for all of the financial income that Blacks in America have - more than those in developing countries and Blacks in other countries throughout the world, they have an absolutely lower life expectancy than these supposedly "poorer" nations and people. Certainly a reparations check isn't going to address that problem in the black community. An unjust enrichment argument ignores the real losses of slavery - identity, health and life.

The proper place for the reparations debate, in America, at this point, is on the grassroots level in Black America's civil society in the efforts that a reparations agenda, far beyond a simple cash payment, is placed before the United States Congress.

Through the presentation of a program with the proper policies, Blacks can obtain much of the repair from slavery that they are looking for. All that Black organizations have to do is form a coalition across partisan and ideological lines that places a reparations agenda before Congress.

We think that such an agenda should include an apology from the United States government, income, payroll and capital gains-tax exemption for Blacks, for a period of time, monetary payments in the form of cash and gold, increased funding made available to community and faith-based institutions for prisoner reform and education programs and the bargain sale or granting of pollution- free and arable government land that currently sits idle.

Even conservative commentator Walter Williams says that the idea of providing such land to Blacks is the most tempting aspect of reparations for him.

In a recent column he wrote: " There is one condition where I might fall prey to the reparations temptation. The federal government owns up to 90 percent of the land in western states such as Alaska, Nevada, New Mexico, and California. Turning that land over to blacks, and hence private hands, might not be a bad idea"

On this point Minister Farrakhan and Walter Williams are in agreement as the Minister has long-advocated that land be included in any reparations settlement, as long as the land is toxin-free and able to be used for agribusiness.

In addition, as part of a reparations agenda, Blacks should lobby for total debt relief, the removal of sanctions and increased foreign aid to Black countries throughout in Africa and the Diaspora.

And Blacks in America should support an international case coming from Black countries in the Diaspora against European nations.

Importantly, the reparations agenda should be complimented by the advocacy of economic growth policies that will sustain an environment where repair takes place and poverty is eliminated. To that end we believe that America should return to a gold standard, to promote trust and honesty in economic transactions; criminal justice laws should be reformed to end disparities in drug sentencing and the wholesale incarceration of non-violent drug offenders; and public education must either be fixed, or sufficient funding should be provided to enable students to leave failing schools while at the same time the public school system receives the exact amount of funding necessary to replace the amount that followed the children who have accepted vouchers.

Surely, America would not have to be forced to pick between saving public schools and vouchers, if its spending priorities were in order. Surely corporate welfare and unnecessary defense programs can provide enough funding for our proposal. And surely, Blacks who were denied education while in slavery, should not be forced to accept a ridiculous partisan dichotomy that forces them to pick between public schools and vouchers to attend private schools. Maybe White America can afford such limited education options and budget constraints but Black America cannot.

In the final analysis we do not believe that a comprehensive reparations package can result from a class-action lawsuit. Furthermore, to give such lawyers the lead in the movement for reparations represents a hijacking of sorts in that Black grassroots organizations, civic organizations, mosques, churches and Black local, state and national political leaders are left out of the development of the strategy.

Instead of class-action lawyers leading the movement, they should be lead by the movement and their services should only be utilized to the extent that they contribute to the repair of the Black community. We recommend that if class-action lawyers are to be involved they should begin by crafting a class-action suit against the Federal Bureau of Investigation (FBI) and US Government for its actions in the FBI's Counter Intelligence Program (COINTELPRO). Surely, the surviving members of the NAACP, SCLC, SNCC, Black Panthers and Nation of Islam, who were victims of COINTELPRO, can unite to present a devastating case against the US government in this regard, and we are sure that the case would be worth the while of the lawyers, financially-speaking.

Such a case against the government for the illegal actions of the government for COINTELPRO can also be included in the larger argument made to justify reparations and to win popular support for it.

We think that such a case should be a litmus test of the sincerity, effectiveness and intentions of class-action lawyers who no doubt see fame and fortune for themselves, as a direct and indirect result of any reparations lawsuit.

This handful of lawyers should not be excluded but they also should not dominate the formulation of a strategy that affects over 40 million people, in America and hundreds of millions across the planet.

Cedric Muhammad

Monday, February 5, 2001