Reparations As Law

There has been a lot of talk lately about race-based reparations, initiated by this Atlantic article. (See also here, here, here.) I’m not a lawyer, but I do teach Graduate Law & Econ, and the discussion I’ve seen on reparations has ignored key legal issues. So let me raise some of those issues here.

The argument for reparations is based on the very solid well-accepted principle that when A harms B, A should compensate B, both to help B and to discourage future A’s from acting similarly. But over the centuries we’ve collected many other legal principles which limit the scope of application of this basic legal principle.

For example, we usually require that a specific person B identify a specific person A, and offer clear evidence of a particular clear harm that B suffered, relative to some other state that B had a right to reasonably expect. We also require a clear causal path between A’s acts and B’s harm, a path that A could have reasonably foreseen. We usually require public notice about legal prohibitions, we forbid double jeopardy and retroactive rules, and we impose statutes of limitations to limit the delay between act and claim.

Each of these limitations no doubt prevents some Bs from getting compensation from some As, and thus fails to discourage related As from causing related harms. But these limitations are usually seen as net gains because they prevent fake-Bs from using the legal system to extract gains from not-actually-As, which would reduce the perceived legitimacy of the whole legal system due to a perception that such fake cases were common.

Now it is actually not obvious to me that all these limitations on law are net gains. I can see the arguments for allowing hearsay evidence, emotional harms, double jeopardy, retroactive rules, no statutes of limitation, and taking compensation from non-A folks that As care about. That is, I can imagine situations where each of these limitation violations might usefully help to discourage As from hurting Bs.

Our limitations on law have so far mostly prevented people from using the legal process to obtain race-based reparations. After all, cash reparations for US slavery would react to a broad varied pattern of centuries-old harm by transferring from folks distantly and varyingly related to As to others distantly and varyingly related to Bs. Such transfers could only very crudely track the actual pattern of cause and harm. So new policies of race-based reparations would in effect embody many new exceptions to our usual limitations on legal suits. And they would create precedents for future exceptions, making it easier to obtain further reparations based on race, gender, and many other factors.

So regarding race-based reparations, what I most want to hear is a general principled discussion about the pluses and minuses of our usual limitations on law. Yes, we may have imposed overly strict limits. And yes, the legitimacy of the legal system can also be reduced when everyone knows of big harms the law didn’t address. But still, we need to identify principles by which we could make exceptions to the usual limitations.

Yes, one simple principle might be to give big compensation whenever the chattering classes nod sagely enough and say loudly enough that yes it is the right thing to do. But it would be nice to hear concrete arguments on why this approach tends to avoid the usual problems that the limitations on law are said to be there to avoid. Might it be better to create a whole new system of reparation courts that operate according to new legal principles?

Of course in signaling terms, one’s willingness to throw out all the usual legal precautions to endorse race-based reparations can signal exceptional devotion to the race cause. But is this really a path we want to go down, competing to outdo each other in our eagerness to toss out our usual legal protections in order to signal our devotion to various causes?

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  • Sigivald

    But still, we need to identify principles by which we could make exceptions to the usual limitations.

    I can’t think of any principles that would allow such an exception.

    I think it’s quite properly the empty set.

    • Daublin

      I’m struggling on that point, as well.

      For a few centuries now, the law hasn’t even been able to punish the immediate children of criminals. When you talk about race reparations, you are talking about the children of the children of the children that were involved.

      To top it off, the perps weren’t doing anything illegal.

      • IMASBA

        Western judicial systems do allow for reparations paid by governments, but that would of course include black taxpayers as well. Then again I fail to see what the problem is with just helping needy people who are living today and who according to the reparations proponents are the ones that would receive the reparations anyway.

      • http://juridicalcoherence.blogspot.com/ Stephen Diamond

        Then again I fail to see what the problem is with just helping needy people who are living today and who according to the reparations proponents are the ones that would receive the reparations anyway.

        Well, the fact is that America (and Europe too, for that matter) isn’t about to increase their aid to “needy people” because they’re implementing austerity. What can be accomplished is a question of which political coalitions can be constructed. To be clear, I don’t see reparations as a viable strategy: it would be simultaneously too superficial and too divisive. But if there were a mass movement for reparations, I’d probably support it. The fact that some other solution is better isn’t usually an argument against a measure which would, on balance, increase social justice.

        To the common argument made by commenters–where does it stop?–I think it’s a red herring. Reparations represents a pragmatic solution to a systematic social injustice.

        I’m not sure why Robin thinks legal principles determine the contours of the law itself. Discrimination in public accommodations based on race, for instance, is illegal; yet, discrimination based on (say) income is legal. Isn’t that a kind of reparation based on race? A kind of discrimination concerning what discrimination can be based on? Why make a special issue of racial discrimination, it could be said. I’d prefer that no proprietor be allowed to exclude any customer without a court order, but I don’t complain of unfairness if I’m discriminated against legally where minorities are protected. There can be a net gain from limited reforms, even where they create minor injustices of their own. It seems Robin understands this but wants rules; but rules would make these partial, pragmatic adjustments impossible.

      • IMASBA

        Social programs are more realistically implemented than reparations, that doesn’t change in times of austerity. Social programs also don’t have to cost extra money, they could be redistributions or just improve upon existing programs (American college grants are massively inefficient because it follows tuition hikes and the government does not limit those tuition hikes).

        One hard difference between social programs and reparations is that current financial neediness is much easier to establish than a causal link between that neediness and past injustices. Social programs also broaden help to needy people who do not fit some narrow ethnic category or whose neediness does not stem from some narrow definition of injustice. It’s simply the better and less decisive way to go about it, it’s also more realistic in most countries. People like Coates should get behind social programs if they want real, permanent change.

  • Kith Pendragon

    Making any sort of reparations based on race only serves to reinforce the cultural construct of race in the first place: something we have worked very hard (and to great, though not perfect effect) for half a century or more to dissolve. As we move forward toward dissolving or repairing other social constructs like those surrounding gender and sexuality, any legal action that undoes even part of the work we’ve done so far could be detrimental.

    To come at the point from another angle, the damage done by some our ancestors to others of our ancestors is a symptom of several related cultural problems that still need a lot of attention from us in order to prevent or limit *additional* damage. When a patient is suffering from a disease, you first determine what kind of symptom management is absolutely necessary to keep the patient alive and then *treat the disease*. Failure to do so endangers the patient’s future and wastes resources that could be put to more effective use.

    • Weaver

      I really fear the last 35 years of research in genetics and human geography would horrify you. Give me a drop of blood, and I’ll tell you where your ancestors came from, and your “culturally constructed” race, with high accuracy and having never set eyes on you.

      • IMASBA

        Give me a drop of your blood and I can tell whether you can wiggle your ears or not. I guess it’s just inescapable that we should divide people up into ear wigglers and non-ear wigglers and start investigating in what other ways these two groups differ from each other, nothing personal, it’s just science.

      • oldoddjobs

        If only different groups differed along ear-wiggling lines and nothing else!

      • IMASBA

        Oh, there will definitely be other differences between ear-wigglers and ear-wigglers, coincidental correlations of course but we can choose to read meaning in them just like we do with so many differences between “Africans” and “Asians”. If you then systematically discriminate against non-ear-wigglers long enough I’m sure you’ll eventually get cultural differences and people will begin saying that non-ear wigglers obviously have lower IQs and that sort fo thing.

      • oldoddjobs

        I don’t believe that discrimination is random and arbitrary.

      • Weaver

        I don’t believe that many inter-group differences are coincidental either, there are too many evolutionary adaptions from broad physiology/limb dimensions, to lactose tolerance, haemoglobulin efficicency, cold resistance, parasite resistance, malaria resistance, vestigial hair etc…I mean even skin colour itself is obviously adaptive!

        But that’s irrelevant for this discussion, right?

      • IAMSBA

        broad physiology/limb ratios differ widely among Europeans and among black Africans, lactose tolerance is shared by anyone who is not European, increased hemoglobulin efficicency is shared by Tibetans, Incas and Ethiopians, etc… starting to see the problem? And yes, all these differences are irrelevant to this discussion, in addition they’re also coincidental (the population of Masai is larger than the population of pygmies so black Africans are on average rather taller than smaller and this average characteristic is pretty much coincidental, not something that absolutely has to be correlated with black skin for genetic reasons.)

      • Weaver

        Sorry, IAMSBA, I don’t.

        From your post I’m getting the impression you don’t have statistics at graduate level, and not too much aware of phylogenetic geography. Please correct me if I’m wrong, but it is kinda useful for this debate.

        Basically, you’re confusing inter with intra group varience and don’t have a good handle on what “coincidence” actually means. No one in the field, for example, would average the height for all africans! (Africa has fantastic genetic variation) You need to look at the PCA for the cluster analysis then pull your population parameters.

        http://press.princeton.edu/chapters/s5313.html

        http://www.newscientist.com/article/dn14631-human-geography-is-mapped-in-the-genes.html#.U4lGZSiiXwM

        This is all pretty standard stuff in genetics now.

      • IMASBA

        I do have (Bayesian) statistics at the graduate level, but I might have been sloppy with my wording, that’s entirely possible.

        What I’m trying to say is not that it is impossible to divide humans into groups and derive statistically significant differences between those groups, it’s that the choice of groups is arbitrary, especially the black-white-yellow choice. The choice of where you draw the line between what you call inter and what you call infra group differences is just arbitrary.

        “No one in the field, for example, would average the height for all africans!”

        That’s because no one in the field believes in the black-white-yellow distinction in the firs place, which is entirely consistent with my point.

        When I said “see the problem?” I was pointing out that all those phyiological differences would necessitate different groupings. Sure some differences would be left if you just choose a grouping but that’s really just fitting the results to your own ideas because chances are more significant differences would turn up if you chose a different grouping. There is no huge thing that separates human groups: no one lays eggs or breathes underwater or cannot procreate with members of another group. All we can do is choose insignificant details and base groupings on that to satisfy our urges to label people, but that’s ultimately pointless (unless of course it’s for medical purposes, in which case you’ll acknowledge that the grouping only makes sense for that partcular affliction). It’s a much deeper point than any one study will explore but I’m pretty sure that deep down it’s not so different from what you or geneticists believe.

        For the topic of reparations we can of course skip all the philosophy: one would just need to know the definition of race that the slaveholders used, no matter how arbitray or ridiculous that definition was. Just like if you want to save Rohingyas from the Birmese government you only need to know who the Birmese government considers to be Rohingya.

      • Weaver

        +1 for being so reasonable. Sorry I don’t have time to follow this up at the moment.

      • http://juridicalcoherence.blogspot.com/ Stephen Diamond

        You’re saying that the cluster-analytic techniques use arbitrary phenotypes, and different phenotypes would produce different clusters? If true, seems someone would have demonstrated that.

      • Weaver

        Sigh, if only….

      • Weaver

        Ah, I was just concerned with challenging the idea of race as a purely social construct. Unfortunate (perhaps) it isn’t. We’re stuck with the fact that there exist genetically distinguishable (but substantially overlapping) sub-populations of humanity, who are related, geographically concentrated, and also physiologically distinguishable.
        .

    • ShardPhoenix

      While you’re wrong that race is entirely a social construct, you’re right that race-based reparations talk unnecessarily reinforces the social importance of racial divisions.

      • Kith Pendragon

        To clarify, I was speaking strictly about the social construct of race. There are real genetic factors surrounding sexuality and gender and many others as well, but the social constructs that we have built around all of these issues contain what are, at best, large swaths of bias and misinformation that need to be stamped out so people stop getting hurt here and now.
        We know that as soon as we start to label groups, we begin to attribute certain qualities to each and every member of the groups whether we mean to or not. We need to keep a very close eye on this tendency. We need to back up our broad-swath decision with numbers. Most importantly, we need to try to stop hurting people because of it.

      • Weaver

        Fair enough. I appreciate stereotyping is dangerous, especially in this area.

        But, alas, race is no more a “social construct” than a table is.

      • Kith Pendragon

        One need only take a cursory look at racism to know that it is not based on ancestral geography. Take Haiti, where being “Black” means you don’t have as much money as the “White” population. Skin color and other genetically controlled factors don’t even enter into it. Or the USA around one century ago where you were *legally black* if you’re ancestry contained even “one drop” of “black blood” — an ill-defined term that never had any real meaning to start with, particularly no meaning that could be tested in the early twentieth century. Folks with chalky skin sometimes could not get hired for a job for no other reason than because they were “Black”. Examine racism over time, or even right now in different areas of the world, and you will see that this is something that exists “in the map” — that is, part of our own ideas of what the world is like — and divides populations based on a wide variety of features “in the territory” — what the world is *actually* like outside of our brain-boxes. Those features have little business being dividing lines, but more importantly, we have little business *drawing* dividing lines in the first place.
        You are arguing a semantic point that is only tangentially related to the thesis of my comment. My purpose was to suggest that making *any* division of the population — be that division artificial, natural, or merely perceived — affect another in such a way as “racial reparations” only serves to reinforce and legitimize that division.

        We should be striving to erase our imaginary lines, not digging them deeper.

      • Weaver

        I said “Race” was not a social construct. Not “Racism”. I’m sure you didn’t mean to strawman. I grant you have a much stronger case on the latter.

      • Kith Pendragon
      • Kith Pendragon

        Incidentally: if you take a hundred year old barrel of whiskey, turn it on end and put a chair next to it, sit in the chair and put your cup on the barrel, the barrel is suddenly (and without changing) a table. Table is not the thing, but what you do with it. When we all agree that a thing is a table, it becomes that.

        Social construct.

      • Weaver

        Ummm.

        This is why semiotics and much of the english lit department was held as a joke when I did my philosophy and language module. These are basic semantic sophistries.

        Here, you have simply elided between the verb “to be” and the verb phrase “to be used as”.

        Yes, I know you thought it was clever and crushing. Sorry. I might even point out the barrel is still a barrel, and the labels are not exclusive, and this is all rather an undergraduate level game.

      • Kith Pendragon

        I’ll connect the dots for you:
        Social Construct = an idea or mechanism created or developed by society… basically the idea that some things are only a certain way because we agree that they are
        Race *is* such a mechanism. As I pointed out one of my other comments in this part of the thread, different cultures use different aspects of individuality to define their races. While ancestral geography, skin pigmentation, and economic stability are all real things, it is our (cultural) *agreement* that “those things make us different enough to justify changing our behaviors toward each other” that is the real meat of “race”. The change (in behavior) itself is “racism”.

        Also, you’ve *entirely* missed the point of the original comment. In the end, it doesn’t matter what race and racism *are* as long as we can all agree that they hurt people. Then it seems fair to conclude that if hurting people is “wrong” we should stop doing it.

      • http://juridicalcoherence.blogspot.com/ Stephen Diamond

        I suppose you could say that, in applying the “one drop” rule, the society was misapplying the concept of race rather than engaging in the social construction of race. If that’s what you mean, I can’t see why you think the point worth making.

    • http://juridicalcoherence.blogspot.com/ Stephen Diamond

      Making any sort of reparations based on race only serves to reinforce the cultural construct of race in the first place

      But could it not also be said that failing to make reparations based on race in the face of vast and continued one-directional racial injustice serves to protect that “cultural construct” by allowing discrimination to hide behind denial. [A question worthy of a prediction market.]

      I only just read the Coates piece. Most of it (factually) is pretty much old hat for Americans, I think, but what I found interesting was the last part on German reparations to Israel. Coates presents the development as the leading edge’s of Germany’s breakout from its smug denial of any responsibility for Nazism. If we accept that as evidence, it suggests the latter effect is stronger than the reinforcement effect. Reparations made Germans less involved in a German vs. Jew mentality. Same for the Israelis.

      (Let me add that I’m not actually satisfied with the arrangement where Israel was rewarded for its arrogant claim to represent all Jews (and to set up a state based on a religion.) Nor do I believe the (new) myth that the average German was a Nazi or that many Germans didn’t hate the Nazis. And then you come to the question of what reparations are owed by the Israelis to the Arab they forcibly displaced.)

  • IMASBA

    Reparations, even those having nothing to do with race are always problematic, which is why many judicial systems limit them to a minimum. The United States are an exception. This is really a one of those times where the US should just get over itself and look at what other countries are doing. The answer is very clear: give aid to struggling kids, all of them. Reign in the cost of (higher) education, leveling the quality (by diverting more of the resources to inner city schools for example) and support the pporest kids, whether they’re black, white or purple. Those groups who have suffered the most (economically) in the past would automatically benefit the most from such a system and the money would go to something productive at the same time. All the while you avoid endless debate about how far back one should look for suffering, which groups should include, what to do with all those people who are descendants from both victim and perp, what would be an appropriate amount of compensation, what kinds of suffering should count, etc…

    • http://juridicalcoherence.blogspot.com/ Stephen Diamond

      Is there any ethnic or national group in Europe that people think might be entitled to reparations? Hasn’t Germany paid reparations to Jewish families?

      America is kind of unique in having widespread slavery just yesterday.

      • IMASBA

        Yes, but reparations for the Jews were mostly paid out soon after the war. Occasionally some art is still returned to Jewish families but they have to provide proof of being a relative of the deceased owner (the relatives then get to divide the property among themselves) and there’s no need to determine appropriate damages because it’s simply the returning of an existing piece of art.

        To pay reparations among racial lines for events that go back centuries is considered ridiculous by most people in Europe: “everybody would owe everybody else and when it’s about slavery only a few families benefitted from it while the rest were dirt poor laborers or peasants” seems to be the opinion. It’s different in America but not by much, after all there has been so much mixing of ethnic groups and so much immigration after the end of slavery and for many southern families what fortune they had remaining from slavery vanished into thin air during one of the economic crises between then and now.

      • Weaver

        Yes! All of them!

        Personally I wish to claim compensation from the Danish for their brutal invasion of my Yorkshire homeland circa 800 AD. The compound interest alone should make the reparations substantial

        But seriously, once you start on this nonsense, there’s no stopping. There are literally hundreds of arguable A vs B harms in Europe in the last 250 years. And beyond that…well…all of human history is group A behaving badly to group B.

      • Weaver

        You realise widespread slavery and indentured labour is still practised in large parts of the world? Now, today?

      • RoyMix

        Only because you don’t consider serfs to be slaves.

  • Sam Dangremond

    “is this really a path we want to go down, competing to outdo each other in our eagerness to toss out our usual legal protections in order to signal our devotion to various causes?”

    Go down?

    Hasn’t that ship already sailed?

    Name pretty much any cause…

  • Peter

    You need to fix your use of “A” and “B” to be consistent.

    • http://overcomingbias.com RobinHanson

      I’ve tried to fix my usage; let me know if mistakes remain.

      • Tyrrell_McAllister

        A and B seem switched here: “After all, cash reparations for US slavery would react to a broad varied pattern of centuries-old harm by transferring from folks distantly and varyingly related to Bs to others distantly and varyingly related to As.”

      • http://overcomingbias.com RobinHanson

        Yup, fixed.

  • Thomas_L_Holaday

    How about the principle, that when A has used the justice system itself to harm B: criminalizing B’s efforts to escape from kidnaperers, criminalizing literacy, denying standing in court, making it the law that B has no rights that A has an obligation to recognize, decriminalizing A’s homicide of B on the grounds that B is A’s property, denying B the right to vote, passing voter identification laws which make voting difficult for B, refusing to provide adequate vote-recording capacity in neighborhoods where B voters are plentiful, nominating candidates who describe A as “real Americans,” etc; then, since A has used the justice system historically and in the present to harm B, the limitations of that justice system that shield A from B’s claims are dubious?

    • IMASBA

      The fact that both your A and B are long dead makes it dubious. I guess the road to hell is paved with oversimplified analogies.

    • Weaver

      Everyone accepts that A did great harm to B historically, and rather less harm in the recent past.

      But none of this addresses Robin’s points.

      • Thomas_L_Holaday

        It addresses Robin’s points exactly. Robin asked for principles to apply when deciding whether to make exceptions to the usual limitations. This proposes the principle “A harmed B by using the justice system” and cited general examples. Using the justice system is a tactic for As who wish to harm Bs, in part because it makes identifying a particular A who harmed B difficult. Using the justice system is a tactic for As who wish to harm Bs, in part because it uses a deathless institution to commit the harm over generations, allowing As intended and unintended beneficiaries the “long dead” cavil.

      • Weaver

        Sorry, perhaps I was being unfair.

        It read less as a generic set of principles for exceptional action than a rather specific list of grievances….

    • Silent Cal

      If you’re going to put your money on this principle, you’d better expect it to be correct across cases. That is, you should expect that if I convince you that the English used the justice system against the Irish or WASPS against Italians or what have you, that will convince you there should be reparations in that case. And conversely, if I produce evidence that Mississippi mostly relied on vigilante slavecatching and never really invoked the justice system, that should be evidence that Mississippi should be off the hook. I’m not as dismissive of the search for principles as the other commenters here, but I’m not sure this one cuts it.

      • http://juridicalcoherence.blogspot.com/ Stephen Diamond

        A practicable principle would necessarily have an element of vagueness. There would (perhaps) need to be language requiring extreme, systematic, and prolonged state action. If that seems overly subjective, consider that other tort laws have this subjective character.

        For instance, there’s a tort called “the intentional infliction of emotional distress.” Obviously, most things I do to another that they might find distressing aren’t actionable. The common law (and many jurisdictions today) say that the distressing act must be one that would reasonably cause a citizen to exclaim “that’s outrageous.” Not a very precise or elegant solution! But it’s widely employed; I haven’t even come across fundamental criticisms.

        On a different but related topic, I wonder why everyone is convinced that slavery and its continuing aftermath are in no way exceptional, yet people commonly acquiesce to calling the Nazi Holocaust an exceptional crime. Personally, at least, I think slavery and what followed was worse than the Jewish genocide. Is it because (we) Ashkenazi, compared at least to blacks, are relatively high status?

        Nobody (else) has even expressed an opinion on Coates’s ultimate argument that German reparations to Israel (despite being theoretically unjust–Germany having been a dictatorship) benefited both countries.

    • http://juridicalcoherence.blogspot.com/ Stephen Diamond

      I think that’s a promising answer. But I’d parse it a little differently. The main problem people seem to have with reparations is not wanting to suffer the loss of status entailed by admitting guilt for something they’re not personally guilty for. I don’t much like that aspect either. But by making the crux of the matter use of the justice system, the reparation to be paid can be by the Government for allowing the abuse of its justice system.

      Maybe Robin’s question is answerable after all: a present for his faux birthday. Reparations are obtainable only where the state has systematically submitted itself for invidious misuse. They are obtainable from the state, not from individuals.

      • IMASBA

        “The main problem people seem to have with reparations is not wanting to suffer the loss of status entailed by admitting guilt for something they’re not personally guilty for.”

        They also don’t want to be punished for something they’re not personally guilty of nor do they want to open the floodgates for litigation by an endless parade of groups who feel disenfranchised, leaving the group that’s the most modest to pay for it all.

        Many people feel as I do that legal claim culture is a blight in general. It should be kept to a bare minimum: compensation for proven medical costs and proven loss of personal income, not a dime beyond that, not a dime for “emotional damages” or any of that, if someone causes demonstrable harm you put them in jail or let them pick up trash for a few months. Thank god I live in a country with a more sane judicial system.

        “They are obtainable from the state, not from individuals.”

        You mean the taxpayers?

  • http://juridicalcoherence.blogspot.com/ Stephen Diamond

    Since the white persons discriminated against didn’t necessarily have any responsibility for or derive any benefit from slavery and subsequent oppression, affirmative action is a kind of reparation. Any objections to reparations apply to affirmative action, the only difference being that reparations is in cash and affirmative action in opportunity. (With you economists usually preferring cash benefits.)

    But reparations would be merely insulting unless they really repair, and the cheap white men who run America would never pay out.

  • Weaver

    Mischeiviously; could the US legitimately bill African Americans for the cost of (partly) fighting a war for their emancipation?

    I mean, if I rescue someone, might I reasonably charge them for the service, if the charge was lower than their discounted cost of not being rescued?

  • Weaver

    I don’t think anyone has pointed out the principle of harm requires B to be worse off than would otherwise have happened without A’s action. If I break your arm by pushing you out of the path of a train…even it I’m robbing you at the time….

    In the case of black Americans, the alternative to slavery was not freedom in America, but a life in West Africa. This would be with all the attendant mortality risks, lower incomes, and lives in, at best colonial states (in the 19th century) and at worst despotic hell-holes (in the late 20th).

    Now, a lot of the blacks who suffered greatest from slavery died (related issue – can you compensate the living for the dead?) . But it’s not immediately clear to me that, in harm terms, discounted to the present, surviving blacks, on average, did worse out of slavery than they would have done remaining in West Africa.

    I’d be open to some crude numbers on this.

    • Nancy Lebovitz

      I’ve seen a claim that part of what’s wrong with West Africa is a result of slave-taking– both the effects of removing productive adults from the community, and the destruction of trust (the only way you can protect your own people is by kidnapping and selling people from other groups) which made large scale organization difficult.

      • Weaver

        Yeah, I’ve seen that claim…not sure how much I can credit it though….

        I’d find it more plausible if the West African experience with slavery was unusually intense or long compared to other regions, or at least africa. Most slavery was internal, of course, and conducted long before the white man / Arabs / Tourag / Bedouin showed up.

        Now the West Africans did occasionally build / part of significant kingdoms (notably, Empire of Mali), but the region labours under several climatic and geographical disadvantages, and has never been a significant part of human history for those reasons. I don’t feel the need to go digging in slavery for an explanation for their relative failure. I mean; they don’t do notably worse than East Africa or the Great Lakes, despite practising slavery since prehistoric times.

      • Karlus Hannaway

        you sir, are the typical example of a white supremacist. West Africa has never been a significant park of human history. In actuality you mean to say they have never been a significant part of your intellect. How would one explain the Nok culture, or Eredo the largest city ‘ever’ built from ancient times. You did mention the Great empire of Mali and brushed over this ide stepping the fact that Mansa Musa was credited as the richest man to have ever lived. And so on. Your attempt to minimize African history is disgusting but not suprising. There is a wealth of information on the effects that Europe from slavery + colonisation has done to Africa as a whole. You mentioned no difference in economy from West to East, could that be because the SAME coloniser owned West and East; who also were primarily the same traders of slaves: Europe. Walter Rodneys book ‘How Europe underdeveloped Africa’ is another one you clearly haven’t and probably won’t care to read.

      • http://entitledtoanopinion.wordpress.com TGGP

        Could you give a cite on the discovery of the Americas? It would be particularly surprising since Madagascar is regarded as being first colonized by asians.

        In numerical terms, my understanding is that most slave traders were not Europeans. More slaves were sent east than west, toward the Ottoman empire.

      • Karlus Hannaway

        Abu Bakhr II. There were Chinese, African, and Asian before Columbus. More than 20 million slaves were sent through the middle passage its them I am concerned with. Most slave traders were not European? Don’t know where your sourcing that from but it is a fact Europe/the US were the main beneficiaries. De Beers, Brown (&Brown University), the list is endless and long made public. I suggest you look into it.

      • http://entitledtoanopinion.wordpress.com TGGP

        His expedition never returned, and according to wikipedia the conscensus of scholars is that there’s no evidence he ever reached the Americas. You might have a different view, but it’s hard to assert it as established fact.

      • Karlus Hannaway

        You deny the possibility of African contact and even influence in the americas pre columbus? According to which scholars? You mean according to European scholarship written at a time when it was essential to the economy to see Africans as subhuman certainly un capable of such heights. This your source without bias? Try balancing all of the sources of information Regarding such topics. If you were looking into Indian history I would expext you also to sourxr indian sxholars as well as European. This is no different. Cheikh anta Diop and ivan van sertima mag be good start s

      • http://entitledtoanopinion.wordpress.com TGGP

        I never denied the possibility. I said right now most scholars disagree with Van Sertima. I myself have not gone in depth, so I’m curious what evidence there is on what happened to Abu Bakhr, since his expedition didn’t return.

      • Karlus Hannaway

        They didnt return because they settled. The rebuttals to van sertima are 30 years too late, and most of his claims have been refined bythenewwer generation. Il share some links when I get o my computer

      • http://entitledtoanopinion.wordpress.com TGGP

        I was going to reply that most settlers keep in touch with their motherland, but it occurs to me that’s generalizing from a subset of history. I really don’t know if the polynesians did, people today are still stunned by what they accomplished with such limited technology. Due to the lack of writing, neither departures nor returns are recorded and we rely on genetic evidence to trace population history.

        I’m not sure what you mean by “too late”. Do you mean not up to date with the latest scholarship?

      • IMASBA

        The Polynesians did not always stay in contact with their homelands. The Abu Bakr II story is a crackpot theory. There are no islands to hop in the southern Atlantic Ocean (except ones that are way off course for someone going from West-Africa to South America), the Pacific Ocean is also much calmer and warmer so what the Polynesians did in the Pacific would have been much harder in the southern Atlantic, one would need large, sturdy ships and there is no evidence in Africa, Europe and Asia of ships large and sturdy enough to survive the voyage. There is also no archealogical evidence in South America (while an actual Norse settlement has been found in Canada).

      • http://entitledtoanopinion.wordpress.com TGGP

        The Polynesians were indeed island hoppers, but they traveled large distances in some rather primitive boats. The Abu Bakr story may indeed be crackpot (and since I haven’t heard any evidence in favor of it, I don’t buy it), but the society he lived in seemed more capable of supporting large-scale endeavors than the Polynesians were. He was roughly two centuries from Columbus, which is much closer than the Polynesians.

      • Weaver

        Indeed.

        We don’t have any wreckage, trade goods, geneological evidence, settled sites, or technological transfer. Apparently our bold African ocean-faring pioneers didn’t even think to introduce the wheel to their new homeland.

        Even the Polynesians had the decency to leave such an audit trail. I call “crackpot” on this one.

      • IMASBA

        300-400 years before Columbus the Norse (vikings) discovered America. The Chinese could have discovered America 70 years before Columbus (with Zheng He’s fleet), but chose to sail westward instead of eastward. 300-400 years before Columbus there was not a single civilization on the planet that could have made the voyage from Africa to America: nobody built ships capable of that, the Norse only made it because they could rest in Iceland and Greenland.

        Eredo was not a city but a defensive fortification (and much smaller and built much later than the Great Wall of China and also built much later than and on the same order of length as several Roman walls).

        As to the measuring of suffering. Weaver is probably correct in pointing out that so much of the suffering was “absorbed” by people who are now dead that a modern black person in America is better off than one in West-Africa. Of course that does not mean slavery was not a crime: slavers did not plan on emancipation, they even resisted it and black people alive in America at the time did have it worse than West-Africans at the time. If there were any slavers alive today they should face punishment.

        Btw, estimates say that 12 million West-African slaves were shipped across the Atlantic ( that includes destinations such as the Caribbean and Brazil). The number of East-African slaves taken by Turkish and Arab traders to their own kingdom as well as China is estimated to be very similar to that 12 million. At least in the West-African case almost no slaves were captured by Europeans, instead they were captured by indigenuous rulers to trade for European gold, salt and firearms.

      • Karlus Hannaway

        Who are you trying to teach sir? Very eurocentric your textbook references must be quite old. Abu Bakhr II is one of the more famous africans to reach the americas before columbus. I will give you that one for free. If you knew anything of the ocean currents between west africa and the Americas or of the many great kingdoms of west Africa perhaps you wouldn’t be so ignorant. And theres an overwhelming argument that more ancient african civilisations had reached america from a time when Europe was recovering in a cave from its ice age recovery. But I won’t divulge. ‘There were no african civilisations capable’ make you never speak this again. And as for eredo, it was an enclosed city. And couldn’t have been constructed by an incapable society of tarzan like bushmen much to your displeasure

      • Weaver

        Karlus,

        Respectfully, extraodinary claims demand extraordinary evidence. I’m sure we’d be interested in any good links you could post in support of Abu Bakhr II. With the best will in the world I couldn’t find anything that looked like a mainstream history site that was supportive…”could have / should have” is not a substitute for “did”.

        Discovery implies recognising what you find and coming back to tell the tale. That’s why Colombus usually gets credit rather than the vikings. And with the vikings we have actual archeological sites, rather than oral legend.

      • Weaver

        Karlus,

        It’s not polite to call people racist merely because you disagree with them. If I may, this blog isn’t a student union debate, and you’ll find your experience more productive if you hold back the ad hominem.

        You example of West African civilisational acheivements are good. (I liked the Eredo one – I wasn’t familiar with that – but to be fair it seems to have been a system of interlinked settlement fortification rather than a single urban enclosure). But how do they compare with Wu? The Roman Empire? Or the Harrapan Civilisation? All of which predate them. Honestly?

        The large majority of economic historians, (who are nearly all critical of colonialism, as am I btw), don’t think Africa would have done notably better without colonialism. My view is closest to Jared Diamond / David Landes; (sub Saharan) Africa labours under several climatic, biodiversity, and geographical difficulties, which makes it difficult (but not impossible) to build a civilisation there in the pre-modern period. Nothing to do with the people there; they just have a diffiult environment to work with.

    • Karlus Hannaway

      This is one of your most retarded comments. You make the ridiculous claim that West Africa would be no better off had slavery, colonisation and neocolonisation not taken place. Right…… You then also assume many ‘blacks’ would have not preferred to stay even in an impoverised West Africa and keep their culturual heritage, family ties, last name etc than be subjugated to 400 years of slavery on the plantation and 50+ years of Jim Crow just so they could ‘enjoy’ the West as it is today. Big assumptions from a group of people you clearly have no connection with. Bad science. But from a man who states ‘a lot of the blacks who suffered greatest from slavery died’ what can I expect. The construct of transgenerational trauma would suggest otherwise. Your in denial, i’m beginning to think your last name is De Beer?

      • http://entitledtoanopinion.wordpress.com TGGP

        He didn’t say anything about colonization being a benefit, life in a colony was his alternative to slavery!
        On the actual subject of colonization, Ethiopia and Thailand would seem to be useful contrasts for their neighbors and I’ve always found it strange they weren’t more closely examined. Acemoglu even includes Ethiopia as a colony (which it was only quite briefly) on his paper using death-rates as a proxy for colonial institutions.

        “But from a man who states ‘a lot of the blacks who suffered greatest
        from slavery died’ what can I expect. The construct of
        transgenerational trauma would suggest otherwise.”
        His statement doesn’t seem strange to me. Slavery is worse than Jim Crow, which in turn is worse than the current situation of blacks in America. He’s not saying present generations aren’t harmed, just that most of the harm was done to people who are dead and can’t be compensated.

      • Karlus Hannaway

        what the hell are you even saying? Im sure your friend can answer for himself. “I don’t think anyone has pointed out the principle of harm requires B to be worse off than would otherwise have happened without A’s action.” I do posses the power of comprehension and don’t need you to interpret this statement.

      • Karlus Hannaway

        What are you talking about? Do you posses the power of comprehension because its really not that difficult….. “I don’t think anyone has pointed out the principle of harm requires B to be worse off than would otherwise have happened without A’s action.” Now ask yourself who is A and who is B? Whats was A’s action(/s) toward B? Are you suggesting slavery as the action of A, was a separate and unrelated to the action of colonisation and Western rule within Africa? Fail. On the simplest of terms to suggest B would be no worse off had A not intervened the way it did is ignorant, no matter how you dress it up. Thanks for defending your brother but I am sure he can answer for himself.
        Now who on earth has Ethiopia ever been a colony of? Whats your source?

      • http://entitledtoanopinion.wordpress.com TGGP

        Yes, he was treating slavery and colonization as completely separate things. You might think I failed to comprehend, but my guess is he’ll say I interpreted his comment more accurately. It is not my aim to defend his claim (he is certainly not my “brother), just to clarify the nature of said claim.

      • Weaver

        Indeed, you did.

      • http://entitledtoanopinion.wordpress.com TGGP

        Ethiopia not being colonized was precisely my point! It was invaded by Italy but kept its political institutuons, emperor and al. I’m complaining about Acemoglu recording it as a colony.

      • Karlus Hannaway

        Forgive me. Misunderstood. Ethiopia’s solitary role as being free from colonisation remains a significant and sentimental part of African histoy.

      • http://entitledtoanopinion.wordpress.com TGGP

        Yes, I would like if scholars of colonialism paid more attention to it!

      • Weaver

        Karlus,

        Politely, this is an econ/philosophy/rationalist blog, and the general tone is discursive rather than combative. Most contributors have a general level of competence in econonomics and/or history. You might want to bear that in mind if you reply.

        I think you’re quite right to assume that most Africans would have preferred to stay in West Africa rather than be subject to the horrors of slavery. I know I would in their position. But I don’t believe their current day descendents would have been materially better off in the long run had they done so. The point is relevant to the measure of actual harm as a case for reparations, under general concept of tort.

        I think you also misunderstand my comment “a lot of the blacks who suffered greatest from slavery died”. I don’t mean they the ones who suffered most died. I mean death is the greatest sufferring/loss. Hence those who suffered most and might have the greatest claim for any restitution aren’t with us. Hope that clarifies.

  • Tim Brownawell

    http://slatestarcodex.com/2014/05/26/compound-interest-is-the-least-powerful-force-in-the-universe/

    Given what’s at that link, “reparations” for something a generation or more ago would seem pretty much bogus. Neither the benefit nor the harm is sustained across generations very strongly, or at least not consistently across varied examples.

    It seems much more sensible to help those who need help now, regardless of why they need that help, rather than help those who can best argue the were harmed in the distant past regardless of whether they need any help.

    If I need help for some reason, whether I get that help shouldn’t depend on how well I can argue that it’s due to some nebulous far-past act of malice rather than time and chance.

    If harms and benefits from far-past acts really do persist across generations, then a standard tax-funded social safety net will have the effect of redistributing from those who benefited (they’ll be richer and pay more taxes) to those who were harmed (they’ll use the safety net more).

    Race-based reparations have no benefit other than the ability to feel superior to those receiving the reparations. (I’m good because I’m helping you; you’re inferior because you’re dependent on my help.) They’re the currently-politically-correct form of racism.

  • http://juridicalcoherence.blogspot.com/ Stephen Diamond

    Lawsuits, surely, wouldn’t be the way reparations would occur. The principles limiting this kind of compensation arose necessarily, if for no other reason but judicial efficiency.

    Black reparations would have to be based on the exceptional character of black oppression in America. It would be a legislative solution; actually, it would probably require a constitutional amendment for a one-time wealth transfer. Otherwise, it would just become another legislative tug of war. If there were a society-wide agreement that reparations are in order, a constitutional amendment would insure that the issue is over and done.

    • oldoddjobs

      I don’t think there has ever been a “society-wide agreement” on anything, ever. Perhaps you mean “majority” or “majority of politicians”?

  • Kith Pendragon

    Let’s assume a world where we do decide on some form of reparations for one or another of the groups who feels historically/systematically oppressed. What then?
    Does every group deserve reparations from their oppressors? How far back do we go in deciding both who gets paid and how much?
    What about going forward? When women or gays or transgendered/transexual people finally become fully free as (let us say) white cisgendered men currently enjoy, do we have to pay them for the harm we’ve done them?

    What motivation, then, to continue working toward social reform?

    • http://overcomingbias.com RobinHanson

      Having a set of principles re reparations could go a long way to giving us a clearer idea of “what then”.

      • Kith Pendragon

        I’m not convinced any such principles or guidelines wouldn’t
        -undermine our current system and
        -leave us fearful of future reparations and therefore reluctant to fix the problems we currently face.

        Our current system strives to make individuals responsible for their actions. The principles you propose would make populations responsible for the actions of *other* populations (from the past). Those two ideas are contradictory.

        *Edited for grammar

      • silent cal

        Robin is more proposing that there be a set of principles than proposing any particular set.

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  • Trimegistus

    How about we deduct the trillions of dollars spent on social programs aimed at minorities since the Johnson administration from any reparations, and then send the bill to current minority Americans?

    • http://juridicalcoherence.blogspot.com/ Stephen Diamond

      Would you not have any shame about billing someone for that which you believe gave them no benefit?

  • oldoddjobs

    As an Irishman I demand reparations from Englishmen for centuries of oppression, the Great Famine etc,. Ha! As if. No, thank you. The idea is insulting.

    • Maximum Liberty

      That is what my Northern Irish wife said when some progressive told her that she bore responsibility for white nationalism and slavery in America. “Because my ancestors were too busy being oppressed by the English?”
      Max

    • http://juridicalcoherence.blogspot.com/ Stephen Diamond

      You’re comparing a 7-year famine with hundreds of years of enslavement followed a century of half-measures and retrogression.

      Blacks in American are not regarded as truly human by most of white population. (See, for example, http://www.scienceagogo.com/news/20080110221353data_trunc_sys.shtml There’s better research to look for, didn’t have time myself to cite it.) The police regard an unknown black man as a criminal.

      Whether racial rage will be tamed is an open question, but I don’t think anyone has reason to be sure it’s possible given the depths of grievance.

      Ultimately, “reparations” may be the only solution. Hopefully not, but possibly. But what form would such reparations take? When two peoples simply cannot live together, the solution is self-determination, that is, secession as a separate nation state. (As when the Crimean Russians found themselves unable to continue in Ukraine under a government spearheaded by Right Sector fascists.)

      If black and white can’t coexist, American blacks are owed a large swatch of land in North America to establish a separate country, with the necessary aid to get it established. That’s would really be the only decisive reparation.

      You’ve also questioned whether blacks were harmed by being enslaved–after all, their annual incomes are higher today than they would be if left in Africa.

      A foul position for a so-called libertarian.

      • oldoddjobs

        Someone else on this thread questioned whether blacks were harmed on net by slavery – it wasn’t me! Anyway, it would only be “foul” if it were posited as some sort of justification for slavery, which of course it wasn’t.

        As for secession for incompatible (for whatever reason) groups, I agree with you.

        Lastly, do you honestly think the “subliminal experiments” you cite justify your extraordinary claim that “Blacks in American are not regarded as truly human by most of white population.” I’m not buying it. Imagine another experiment in which you ask a sufficiently large sample of white Americans “Are black people fully human?”. I’ll wager 99% would say yes. I suppose might respond by claiming that not only are most white Americans horribly racist, but also liars and/or racist against their will and against their own beliefs. The burden of proof is on you, though.

      • Weaver

        “Blacks in American are not regarded as truly human by most of white population”

        There’s a point where everyone else starts rolling their eyes. The inference you draw from the linked research is tendentious. Can’t prove racist behaviours or thoughts? No matter – they’re just subconcious and influencing you in ways we can’t detect! The whole thing is a ridiculous exercise in priming.

        I bet if I flashed images of pears at people then they would be faster identifying Scarlet Johansen’s ass. It doesn’t mean we think she’s a soft fruit.

  • Floccina

    Reparations already exist in the form of AA and some other programs and they like a very inefficient way to do reparations. More explicit reparations of say $200,000/adult descendants of USA slaves might allow us to end AA.

    • VV

      Interesting. Would somebody like Michelle Obama get “reparations” as well. What about her children? Would they get only $100,000 each since they are only of half slave descent?

  • Daublin

    The A’s and B’s make it hard to read. You might try nouns, for example, victims and perps. If that’s too colorful, then maybe plaintiffs and defendants.

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  • hopleyyeaton

    Once reparations are paid are we all willing to say that now it is even, it is settled, it is over, no more affirmative action, and not another word about it?

    • Jim C

      If we were to pay reparations, the process would open floodgates to endless claims by almost everybody. No matter what we paid out, nobody would be happy with the process.

    • Stu

      The presumption is that, if not for slavery and subsequent racism, there would be no significant socio-economic disparities between blacks and whites. Therefore, reparations, both monetary and legal, should continue until socio-economic parity between blacks and whites is established. Whether this involves pushing blacks up or pulling whites down doesn’t especially matter, because it’s the relative status of the two tribes which is important. Once parity is established, then we can talk about maybe ending reparations, or perhaps we’ll discover that true reparations require that whites take a turn being the subjugated tribe.

  • Loquetis_of_Gorb

    I’d like to ask a question – anyone can answer, but I’m particularly interested in what black people think on this matter:

    Keeping in mind the many ramifications associated with a “yes” answer, If you could somehow go back in time and stop slavery from ever occurring, would you?

    FWIW – though I have strong, mixed emotions, I wouldn’t.

    I would miss my black friends, and the countless contributions blacks have made to our culture and the fabric of our country.

    Having said that, it sickens me to see that a great many blacks seem content with remaining nothing more than perpetually angry antagonists.

    What a shameful waste of a life.

    • http://juridicalcoherence.blogspot.com/ Stephen Diamond

      I would miss my black friends

      Would they remain your friends if they knew your position? (And slavery harmed not only the slaves but also white workers who couldn’t compete with slave labor. That is why the nascent labor movement opposed slavery.)

      Why are black men so angry? The most important reason is that there’s much to anger them (see the Coates piece).

      The second reason (in my half-baked contrarian view), the slaveholders bred slaves for docility, which meant fearfulness. That involved amplifying the fight-flight reflex. Relax the terror leading to flight and you get fight.

      The third reason is that they are given “permission” to be angry as part of a very damaged form of “reparations” called political correctness.

      • Loquetis_of_Gorb

        I see you have conveniently declined to respond to my “question”.

        Perhaps you are afraid your answer will expose your intellectual dishonesty?

        Here’s the bottom line: If you could go back in time and – somehow – STOP slavery , we wouldn’t be having this conversation because YOU WOULDN’T BE HERE. You and the vast majority of black people would still be in Africa.

        Funny, with all of the anger that is endemic to the American black population, you N E V E R hear even a WORD about going BACK to Africa.

        Why?

        Because it is and always has been a FREAKING HELL HOLE – and YOU know it.

        In spite of the HORRORS that was slavery – YOU – are fortunate as HELL that it happened, because you are HERE, and NOT in Africa!

        Equally, it’s pathetic as hell that you should CHOOSE to waste your one and only life – consumed in pointless, perpetual anger at people who had NO part in the matter, and resign yourself to being NOTHING more than an ANTAGONIST.

        Reparations?

        I owe you NOTHING.
        You DESERVE NOTHING.

        Having said that, I’d agree to a taxpayer funded one way ticket back to Africa for any and all who are interested, so long as those who remain, pull the stick out of their collective @ss and shut the eff up, and start behaving like reasonable AMERICANS.

  • PeteRR

    Everyone living in former Roman Republic/Empire lands better prepare to pay up for the destruction of Jerusalem in 70 CE.

  • Ronald Pires

    For the record, Coates doesn’t really talk about reparations in his article. He merely suggests that it is something we should talk about. The rest of his quite lengthy article is about the harms caused by housing discrimination during the 20th century. This is important, because by narrowing his discussion to this, we can see real actions taken by living persons against living persons. While I think reparations as a concept would be impossible to address via the court system (but not via Congress), what Coates talks about certainly could be.

    • http://overcomingbias.com RobinHanson

      Coates recommends that an official commission should study the matter. But once formed, it would be politically hard for such a commission not to propose financial reparations.

      • Lydia Laurenson

        That may be true. But even if it is true, the commission wouldn’t necessarily propose financial reparations from citizens whose ancestors participated in the institution of slavery, which seems to be what you’re arguing against in your blog post.

      • http://overcomingbias.com RobinHanson

        But most of the same issues would apply for any reparations which are to be relevant for most of the harms that Coates reviews.

      • Lydia Laurenson

        What makes you sure about that? (this is a real question) Also, I think that if your argument is that “it would be hard to study reparations without actually giving reparations in a way that would be negative for society,” then you might consider specifying that in the OP. Currently, it comes off as ignoring Coates’s real argument….

      • http://overcomingbias.com RobinHanson

        If the ordinary legal processes could be used here people would be using them. So the whole point is to consider special unusual processes. Which directly raises the question of what exceptions to make and if there is a principled way to make them. I’m not saying reparations would be negative but I am worried about unprincipled exceptions to our usual legal principles.

      • Lydia Laurenson

        The primary point of Coates’s original essay was not the question of reparations themselves, but the fact that we aren’t dealing with a level playing field due to wide-ranging historical circumstances. If society decides that this is worth making reparations for, then there are lots of ways to do that besides forcing individuals to pay money/land/whatever.

        In the OP, Robin, you say that you’d like to see principles developed and identified. Coates is also arguing that he would also like to see principles developed and identified (via a commission); yet you are implying here that you do not support Coates’ argument.

        Additionally, you suggest that if a commission studied this problem, then the main principle people would come up with is “big compensation.” I’m not sure that’s true. In the comments above, you suggest that you don’t support a commission because you think that the commission would find it “politically hard” not to propose financial reparations. I’m not sure that’s true, either. But even if a hypothetical commission were to propose financial reparations, then it’s not necessarily true that the proposition would involve direct reparations from descendants of slaveowners.

      • http://overcomingbias.com RobinHanson

        I don’t see much ambiguity in Coate’s article. Reparations is in the title and is mentioned very frequently in the text, and usually in the context of material compensation. That is also the usual understanding of most folks who use the word in the academic literature. So if an official commission is formed with “reparations” in its title or mandate, that is what people will expect, and therefore what there would be political pressure to provide.

  • Jim Smith

    I never owned a slave, never discriminated against anyone…now how am i responsible for reparations? I am owed for all the bastards I supported thru taxes. And for the crime they committed.

  • VV

    Reparations for what harm, exactly?

    Slavery? Well, by any objective standards, the standard of living of the average descendent of African slaves in the Europe and North America are significantly better than the standard of living in West Africa, where they ancestors come from.

    Maybe B(lack)s should be the ones to pay Whites a reward for the having lifted them through slavery, shouldn’t they?

    Or maybe, this whole business of race-based collective responsibility for facts that happened before anybody currently alive was born, is just morally indefensible. Reverse racism is racism.

    • http://juridicalcoherence.blogspot.com/ Stephen Diamond

      The huge reparations imposed on Germany after WW I were very unfortunate, setting the stage for the second war. But why didn’t people argue then–on principle– against collective responsibility?

      Why do we pay or demand reparations from various countries? Is this not collective responsibility for harms without any link to individual responsibility? Yet, they may be preferable to far greater evils. A modicum of reverse-injustice isn’t the moral equivalent of the original injustice.

      • IMASBA

        I wouldn’t support such reparations today, especially since the German Empire was not a democracy. It is unfair to pretend like some past version of me did support those reparations. The same probably goes for the general populace since 90+ years have passed with many societal changes.

        In any case at least in the time of those WWI reparations the perceived “perps” were alive, instead of descendants being punished for the sins of the father.

      • http://juridicalcoherence.blogspot.com/ Stephen Diamond

        The reparations discussed by Coates aren’t for sins of the fathers but their perpetuation by the present population.

      • IMASBA

        The majority of what he writes about is stuff from the past, the most important being slavery and Jim Crow. Nobody would support reparations based on current events alone. This is very much about making the descendants of racists pay to the descendants of the victims of racism and it’s an incredibly feat of American exceptionalism to not even consider social programs based on income rather than ancestry to fix any current problems regardless of whether they’re the result of racism. Apparently it’s more important to make a gesture about the past than to fix existing problems. Class is the new race.

      • http://juridicalcoherence.blogspot.com/ Stephen Diamond

        I’d say his main grievance is the housing rip-off that blacks continue to be victimized by. Slavery and Jim Crow is what made this possible. The subordinate position of blacks was leveraged into new forms of oppression that continue today.

        I think class was always more fundamental than race. But America remains a deeply racist society.

      • IMASBA

        Reforming educational funding alleviates the negative results of ghetto formation, plus it will allow more people from ethnic minorities to have wealth levels closer to the average, which increasingly becomes the only thing that matters in American society. You also prevent the emergence of the next great social injustice (heritable marginalization among poor people from any ethnicity). America might become more like ancient Rome: were class was everything and ethnicity didn’t matter. That brings its own problems and those can be alleviated with social programs.

  • Jim C

    The idea or reparations is preposterous – where would it end? At some point in history, most ethnic groups (tribes, nations, races, whatever) have been either slaves of slaveholders and most have been both. I am white and of French ancestry. Under a reparations plan would I be able to look to the descendants of the Roman Empire who enslaves some of my ancestors?

    Even if we try to limit reparations to American blacks, should they look to descendants of the African blacks who sold other blacks into slavery? Should we apportion reparations payments based upon the percentage of black ancestry in each person?

    A far better idea would be for everybody involved to recognize that black slavery in the US was not a unique experience, it was just another page in a long, sordid history of exploitation. It’s time to move on.

  • http://juridicalcoherence.blogspot.com/ Stephen Diamond

    Several posters have asked what blacks would be compensated for, since the living descendents of slaves are “better off” than they would have been but for slavery.

    But this ignores that we’re talking about tort, not breach of contract, and tort remedies include “restitution for unjust enrichment.” If you trespass on my property (had I any), I can sue you for restitution of any profit you made from using that property, even if I lost nothing; even if I ended up benefiting from the trespass.

    • VV

      > But this ignores that we’re talking about tort

      We aren’t.

      • http://juridicalcoherence.blogspot.com/ Stephen Diamond

        Tort means breach of duty that isn’t contractual. Are you denying there was a breach of duty or claiming the duty was contractual.

        But my basic point is only that in law, compensation isn’t the only metric for damages. Another metric, involved in some contract matters but more commonly in tort, is “unjust enrichment.” (Also called “disgorgement.”)

      • Weaver

        +1 for interesting point about tort. Made me revise an opinion.

  • http://juridicalcoherence.blogspot.com/ Stephen Diamond

    So regarding race-based reparations, what I most want to hear is a general principled discussion about the pluses and minuses of our usual limitations on law. Yes, we may have imposed overly strict limits. And yes, the legitimacy of the legal system can also be reduced when everyone knows of big harms the law didn’t address. But still, we need to identify principles by which we could make exceptions to the usual limitations.

    It’s taken a while for what you’re getting at to sink in. It seems that you are envisioning a system where one might be subject to personal lawsuits for the deeds of one’s forebears. Obviously, this would be completely intolerable.

    But it wouldn’t be so out of the ordinary to create a Government tort that allowed recovery for state action systematically detrimental to the rights of any group, even by their descendents. (All sorts of new bases for recovery are invented.)

    Would it be desirable? That depends on how much citizens would be deterred from using the state for the illegitimate benefit of their group knowing that the benefit would have to be disgorged by their descendents. That conclusion would require a rather compelling argument.

    (But, again, these general considerations don’t do justice to the exceptional character of black oppression in America.)

    So
    regarding race-based reparations, what I most want to hear is a general
    principled discussion about the pluses and minuses of our usual
    limitations on law. Yes, we may have imposed overly strict limits. And
    yes, the legitimacy of the legal system can also be reduced when
    everyone knows of big harms the law didn’t address. But still, we need
    to identify principles by which we could make exceptions to the usual
    limitations. – See more at:
    http://www.overcomingbias.com/#sthash.WWL08DyV.dpuf

    • IMASBA

      How would it be a deterrence? It can’t be a deterrence because it’s a prime example of privatized profits and socialized losses since the state spreads the burden of the reparations over all the taxpayers and that’s assuming the perps are still alive at the time of the reparations.

      • http://juridicalcoherence.blogspot.com/ Stephen Diamond

        Privatized profits and socialized losses aren’t incompatible with deterrence as long as the resulting redistribution advantages the harmed group and disadvantages the harming group.

        Ethnicity A uses the state to harm ethnicity B in A’s group interest. It’s A’s investment in its ethnic interests that motivates the harm to B. Thus, As are concerned about the status of As in the future. Then, they would be deterred to the extent that future As would be losers in the remedial future redistribution. (This loss would probably not only be financial but would entail some measure of ethnic humiliation.)

        Not a pretty way to run a society, to be sure, but it just possibly beats Political Correctness. Maybe a matter of taste: I’d rather have a litigious society than a conformist society.

      • IMASBA

        “Ethnicity A uses the state to harm ethnicity B in A’s group interest.”

        Which is a heavy accusation to prove. Much more likely is a subset of A abusing the state, perhaps even intentionally making it look like the affair benefits A as a whole to increase support among A and/or to spread out the losses in case of reparations.

        “Thus, As are concerned about the status of As in the future.”

        Why the “thus”? They can simply be concerned about their own wealth.

        “Privatized profits and socialized losses aren’t incompatible with deterrence as long as the resulting redistribution advantages the harmed group and disadvantages the harming group.”

        If I can steal $2 million and get fined $1 million for it I’m seeing a $1 million profit, not a $1 million fine. Even if I have to pay back the full $2 million but all my competitors who didn’t steal also have to pay $2 million because I made it look as if I stole the money for our group then I just hurt my competitors for $2 million each.

      • http://juridicalcoherence.blogspot.com/ Stephen Diamond

        I don’t think it matters whether it’s A, a subset of A, or even C pretending to be A. The assumptions are only that A) the *government* should not lend itself to ethnic oppression and B) an ethnic group historically subject to such oppression has a cause of action against the *government*. (Probably a class action.) The government violated a duty owed an ethnicity and must pay damages–that’s the basic idea.

        The reason for the “thus” is I assume ethnic identification/motivation. That is, their existence is the rationale for the Government tort. White supremacists have been concerned with their descendents. But my point is only that, to the extent there is this ethnic motivation, the tort will deter. (Which isn’t to say it will deter enough to justify it.)

  • nkallen

    Coates makes the argument specifically in terms of redlining, not slavery or jim crow. There are many still-living victims of redlining, including one who is the focus of his article. Coates structures his argument this way so that there are living victims who can be objectively identified; his arguments don’t fall prey to “what if I am 1/8th black?” and “but where will the slippery slope end?”

    He implies elsewhere (Twitter and various interviews) that reparations may be justified for the descendants of slaves and victims of jim crow, etc. He is quite clear that he expects this to only apply to direct descendants of victims who can prove via genealogy that they have ancestor-victims.

    I mention these points because it’s important to understand his argument rather than attack straw men, as most of the anti-reparations people in these comments are doing.

    Coates has done a good job showing that those arguing that, those of Irish descent or whatever, though not descendants of slave owners are still liable for the crimes and debts of the nation. His argument is pretty simple: even a brand new immigrant, via his tax burden, is liable for debts incurred by the nation before his immigration. Since Coates premise is that the nation itself is liable for the injustice (redlining was a government policy; slavery and jim crow were laws), his argument is obviously correct. We’re all liable.
    Here is an older essay by Tyler Cowen https://www.gmu.edu/centers/publicchoice/faculty%20pages/Tyler/Restitution.pdf about reparations and it considers a lot of the arguments voiced here. The people arguing that slavery is a net-benefit to african americans, they would be worse-off if left in Africa, are using the counterfactual-welfare argument which Cowen shows is pretty useless. Punitive damages are obviously justified for the harm done: murder, rape, the various horrors of slavery. The only question is whether descendants of victims are entitled to restitution, what the discount rate is, etc. Cowen argues the discount rate is such that descendants are not entitled to restitution.

    Yglesias responds to Coates http://www.vox.com/2014/5/23/5741294/slavery-reparations-are-workable-and-affordable by proposing to print money. Implicit in Yglesias argument is the idea if you look at the average wealth of african american households and compare them to whites, you can quantify the damages and thus value of reparations without using counterfactual arguments. I don’t think Cowen considers this argument, and it seems to be correct independently of the discount rate. It also seems to be independent of slippery slop arguments, since for any alleged victimized group (e.g., Native Americans) you can look at their net wealth and we could rectify all injustices with simple redistribution (or money printing). It does end somewhere, it doesn’t go back to the Romans.

    To address the actual question of Robin’s original article, I can only speculate what might be an established legal process for dealing with reparation suits. But, perhaps allow class action suits against the government for policies which contradict the constitution or the current interpretation of the constitution (per the supreme court), without a statute of limitations. Use discount rates or egalitarian-outcome arguments like that of Yglesias to calculate damages. This would presumably be a new kind of court?

    • IMASBA

      You cant just act like it’s somehow natural to throw all white people together and even if you did you’d see you’d see Asian-Americans are on average more wealthy and that’s just assuming you can keep track of “whiteness” with all the intermingling of the past and with all the rebranding of millions of fair-skinned people as “latino”. It really can go back to Roman times if an advocacy group was successful in convincing people that several groups of European ancestry should also be treated separately and if you want a direct link to slavery you have to exclude Afro-Americans immigrants (which will probably decrease the income gap). Also, it is hard to trace damage from past injustices to today (there are cultural components to poverty and you can debate for all eternity how much guilt for that falls on other ethic groups). Lastly it would be unfair to not include per capita government support. The truth is enormous reparations probably have already been paid but have not proven fully effective (because of cultural reasons but also because of systemic reasons that affect all non-rich, regardless of ethnicity, this cannot be ignored unless you want to set the US up for future claims by white trash descendants that the government left their needy ancestors to die to redirect funds towards reparations for rich Afro-Americans). Existing and future social programs keep contributing, with reforms to the programs and the economy in general effective reparations can eventually be achieved for ALL those who were born at a (financial) disadvantage.

      So, no, the points of the opponents have not been refuted and cannot be without fundamental changes to the way society views justice and regarding those changes I’d say be careful what you wish for: you might not want to live in a society where the son pays for the sins of the father and the government has an agency that officially divides people into ethnicities and runs social program based on ethnicity rather than needyness.

      • nkallen

        Coates claims the government is liable not “whites”. You can think of the reparations as merely a debt owed by the government, like a treasury bond. Just as all citizens are liable for such bonds, all citizens would be liable for the reparation debt. Even african americans are liable.

        As you say, and as does Coates, recent african immigrants should not be beneficiaries of reparations. There has to be actual harm done and proven. The case for reparations for descendants of victims is less strong than the case for living victims, eg, those of redlining, which is why Coates frames his argument in this way.

  • Brent Dill

    > But is this really a path we want to go down, competing to outdo each other in our eagerness to toss out our usual legal protections in order to signal our devotion to various causes?

    Apparently, yes.

    Or wait, did you mean “is this really a path we want to go down” in the sense of “is this a path that we want to live with the consequences of having gone down?” Because I’m not sure that’s a thing people really think about when they pick these sorts of directions
    .