Representing the Race: Standing To Sue in Reparations Lawsuits

The fundamental problem raised by reparations, and particularly reparations litigation, is the question of how to apportion responsibility for historical wrongs. The most controversial harm targeted by reparations litigation is the enslavement of Africans and African Americans and the injuries consequent to that enslavement. The task faced by such litigation, therefore, is to construct persuasive theories explaining who is to bear responsibility for this and other race-based historical wrongs; to determine how such wrongs should be compensated; and to identify who is to receive that compensation. So far, most litigants have advanced only broad descriptions of the communities injured and the harms suffered during slavery.1 Moving beyond these sweeping generalizations, however, the task of charting our mutual responsibilities becomes more complex. It is not always easy to identify with speciacity the wrong suffered or the beneat conferred, nor the link between that wrong or beneat and the responsibility for redressing it. Not every injury obliges the perpetrator to make the victim whole. Some wrongs are justiaed, and others excused, often—as in the case of slavery—by express governmental permission. A society’s willingness to tolerate, justify, or excuse wrongs such as slavery may change over time, often as a result of legislative action, but more often thanks to changing social mores. For example, where once the University of Alabama defended slavery, now it may be time for the faculty to apologize for sponsoring slavery and owning slaves.2