Consider Reparations

First … ally of President Trump’s. “We are in a civil war,” he said. “The suggestion that there’s ever going to be civil discourse in this country for the foreseeable future is over. . . . It’s going to be total war.” The next day … Trump critic … agreed with him — although she placed the blame squarely on the president. Trump, she said, “greenlit a war in this country around race. (more) 

Frequently in human history, one party has complained about how they’ve been treated by another. Typically, the first party suggests that the issue be resolved in particular ways, and the second party tries to avoid giving in to such demands. To pressure the other party to give in, such parties often act less cooperatively toward one another, and try to enlist allies to assist in this stance. Such conflicting coalitions can grow large, and the resulting feuds can be quite destructive, sometimes escalating into full scale war.

The larger society has an interest in resolving such disputes fairly, as the expectation of fair future resolutions can encourage better behavior. But that larger society has an even stronger interest in just resolving disputes somehow, anyhow, to prevent the accumulation of destructive feuds. So for roughly a million years, humans have used informal group norm enforcement. If a forager had a complaint about someone else, they could tell their band, and that band would discuss it and come to a consensus on how to resolve the issue. The band would then apply increasing pressures to get the disputing parties to abide by their decision, and to stop any feud.  

During the farming era, we formalized this practice as law, which lowered costs of making and enforcing group decisions on how to resolve particular conflicts. But the key idea remains: prevent escalating feuds via having relatively independent judges declare resolutions, and pressuring parties to respect them. Hopefully fair resolutions, but more importantly clear and widely accepted ones. Pressure parties and their allies not only to do what resolutions say, but also to publicly accept such decisions as resolving their conflicts. 

That is, we want people who have been loudly declaring their dispute to publicly put it behind them. For example, by treating ex-cons as “having paid their debt to society”. We’d like these legal resolutions to be reliable and predictable, to give people incentives to behave well and not do things that cause disputes. And when disputable events happen, we want the involved parties to have incentives to quietly make a deal to resolve them, so as to avoid larger social conflict and the need for a formal legal resolution. 

For a very long time, most legal conflicts have been resolved via cash transfers. Not always, of course; crimes often need more punishment than fines can produce. (At least without selling people into slavery or requiring crime insurance.) But cash makes many things easier, including trade and charity. Yes, cash doesn’t always make the best symbolic statement. Even so, law usually uses cash because it is an admirably robust measure of value across a wide range of groups and social contexts.  

Which brings me to the current US political conflict, and the topic of reparations for slavery and racism. Our political climate seems today to be drifting toward a war-like lack of restraint. And “grievances” seem an important part of this conflict. One side at least claims to represent wronged parties, parties whose wrongs have not been adequately addressed. And one especially big and long-lasting grievance has been about our history of raced-based slavery, and related racism. Many say that we have not adequately addressed this complaint. 

My main point here is that cash reparations for past slavery and racism harms make a lot of sense in the context of the general history and purpose of law. We have been suffering from a costly long-standing political feud, a law-like resolution could help us resolve and get past that feud, and cash transfers are our standard go-to way to resolve law-like conflicts.

I’m not going to argue for any particular level of compensation, nor for any particular interpretation of particular cases of precedent. I can believe that precedent isn’t clear here, and that many issues and complexities are in play. But complexity needn’t prevent resolution; we rely on law all the time to resolve complex disputes. In fact, in terms of avoiding wider social conflict, law is probably more socially valuable in more complex cases. 

Yes, reparations today for wrongs from long ago does require some form of vicarious liability, wherein the people who lose and those who gain from a cash transfer aren’t the same as those who did wrongs and who were harmed. But we actually use many forms of vicarious liability in law today, and ancient societies used it a lot more.  

Some fear that even after paying reparations, racism-complaint-based conflict would persist unabated. Others fear the opposite, that many would feel that we could cut back on other responses to racism, such as affirmative action, and “put the issue behind us”, risking complacency on future problems. Here I must come down strongly in favor of risking complacency. 

One of the main goals of law, and of humanity’s more ancient norm enforcement, has been to try to get disputes resolved, to give them a better chance of fading away. Yes, it remains possible that past wrongs will be repeated in the future. But to always presume that is to never allow disputes to be resolved, and to instead accumulate escalating complaints and feuds until war becomes nearly inevitable. 

If our national legal system isn’t up to the task of resolving this conflict, or isn’t seen as neutral enough by important audiences, I have a simple proposal: randomly pick 13 adults from the whole world, let them each pick one legal advisor, then isolate them all in a room and have them work together as a jury to pick a resolution. When they must pick a number, let them just use a median vote (each submits a number, the median of which is the answer). Finally, let the whole world apply social pressure to get everyone to accept this as the most neutral and independent resolution likely to be available anytime soon. Accept it, implement it, and then let it go. (If you worry about one side betraying the resolution later, consider spreading cash payments out over a long time period.) 

When conflict appears in a marriage, the couple sometimes seeks a counselor, who often offers neutral independent advice on how to resolve their conflict. Which is helpful when partners actually do want to resolve a conflict. But sometimes they prefer war, and the marriage ends. Similarly an independent reparations recommendation can’t force us to resolve our conflict over racism and slavery, if what we really want is all out war. But as with a feuding couple, if we think there’s still a chance that we’ll want to stay together, we might still give the independent counselor thing a try.  

Yes, like you I hear of many who seem eager for all-out war, as they feel confident they will win. For example, some intend to crush all opposition within the elite professions that they expect to dominate, such as journalism, academia, government, social media tech, and even law. But while such people do exist, social media exaggerates their numbers. It is not yet too late to step back from the brink, and reconcile. Via something like law. 

In a recent Twitter poll, I found that 800 respondents favored cash reparations (CR) 4-1 over affirmative action (AA) as a way to deal with past and present racism, including race-based slavery:

My 73 facebook poll respondents favored CR over AA 87% to 13%. Yes, there are reasons to doubt a wider public shares this judgment, but three different polls find at least that majorities of blacks favor cash reparations. The idea isn’t crazy.

Added 3pm: Over the weekend, I paid for nationally representative surveys via Google Surveys. When I asked the above question except with “just show results” replaced by “I don’t know” (IDK), then out of 220, IDK got 77%, AA 14%, and CR 9%. I initially paid for a much bigger survey, but bailed when I saw so many IDK. I tried again without the IDK option, and out of 1154, AA got 53% and CR 47%. I agree that these stats aren’t very supportive of a majority favoring CR over AA.

I interpret these stats as Google Survey respondents trying to answer as fast as they can to get paid more faster, and so only giving accurate opinions when such can be generated very quickly. If the question looks at all complex, then they pick an IDK or “none of the above” if they see one, and otherwise pick randomly. I’d pay a lot more for surveys where the same person is asked the same question a week apart, and only gets paid if their answers match.

Added 6Mar: Almost all responses are critical, from folks who apparently don’t want any reparations. They mainly complain that this case would be difficult to judge from a legal precedent point of view. But we almost never refuse to have a legal proceeding on the basis of difficulty of judging. If it seems plausible that a judge might find for the plaintiff, the case goes forward. A judge might then rule for the defendant because it seems too hard to find a clear enough reason to rule otherwise. But that’s after a proceeding, not before. I’m okay if the jury of 13 that I suggested picks, after much deliberation, a median compensation of zero; no reparations.

Added 8Mar: David Brooks comes out in favor of reparations:

Reparations are a drastic policy and hard to execute, but the very act of talking about and designing them heals a wound and opens a new story.

George Will opposes reparations because they’d be complicated.

Added 10Mar: A Postily poll of 283 finds 28% prefer AA, 36% prefer CR, 36% say IDK. Non-whites like CR more across the board, but even whites favor it 33% to 27%. Masters degrees & higher prefer AA. Democrats prefer AA over CR 45% to 26%. Oddly, all regions but the South preferred AA over CR.

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