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?