Reparations and Net Benefit
posted by Kaimipono D. Wenger
As reported in outlets like the National Law Journal, Connecticut professor Robert L. Birmingham has taken a leave of absence following a strange incident in which he apparently showed the class a racy video clip — complete with scantily clad strippers — as part of an in-class argument against reparations for slavery. Some commenters have suggested that this case raises potential questions of academic freedom. Let’s set aside those issues, to focus on the substance of Birmingham’s argument as reported in the NLJ.
The NLJ summarizes Birmingham’s argument as: “The sometimes controversial professor asked students to make a case for slavery reparations in light of the fact that much of Africa is beset by war, famine and AIDS.” Law.com later summarizes:
In an e-mail, one student in the remedies class characterized Birmingham’s classroom exercise as a “syllogistically perfect” argument that the students, try as they might, were not able to disprove in 15 minutes of discussion. The professor questioned whether reparations are logically due for American descendants of slaves, who generally enjoy a much better standard of living than modern West Africans whose ancestors were not enslaved,” the student wrote.
Of course, this basic argument isn’t limited to Birmingham, and is quite familiar to reparationists. It’s a point often raised by reparations critics like David Horowitz.
Is this really a syllogistically perfect (or otherwise convincing) argument against reparations for slavery?
I’ll start with a few assumptions.
There is a wide degree of variation in wealth and standard of living, both in Africa, and in the United States. (Plus, many slaves were taken to other countries such as present-day Jamaica, Haiti, and so on.) However, on the whole, there are a number of areas, such as life expectancy, disease, and education, where persons presently living in the United States enjoy a greatly superior standard of living. I’ll assume across-the-board correctness of Birmingham’s factual statement that U.S. slave descendants enjoy a better standard of living than people presently living in Africa.
Also, we will set aside for the moment questions of whether the slave trade itself caused some or all of this disparity, by factors like removing able-bodied workers and fostering intergroup strife. Some scholars have suggested that the slave trade contributed significantly to the gap, and that absent the slave trade itself, Africa might not be lagging in these indicators. But let’s set that aside for now.
This anti-reparations argument boils down to a “net gain” sort of theory. It says, in essence, “yes, we enslaved Africans. But in the process, we inadvertently moved them to a location where their descendants now enjoy a better standard of living. Therefore, there has been a net gain.” It doesn’t matter that no benevolent intent to move African-Americans to a better place existed (indeed, any intent was malevolent). The inadvertent net gain should offset any claim for restitution.
Thus, the “syllogistically perfect” argument is this: Yes, government and private actors affirmatively sought to harm Africans (and succeeded very well in doing so), but in the process they also accidentally created a later benefit, and that later benefit should preclude any claim for compensation based on harm inflicted.
Does the law recognize this kind of defense? Should it?
Once we see the chain of reasoning, it’s easy to export this to other scenarios, that allow us to better examine the question. Let’s look at two hypotheticals.
Hypothetical 1:
ABC Corp’s bankers and advisors suggest that the company should launch its IPO in June. Charlie CEO chooses not to do this, because he thinks an August IPO would be better for him personally. That action is a clear violation of his duty of loyalty.
By happenstance, the IPO market tanks in June, and then experiences an unexpected upswing in August. As a result, Charlie’s action unexpectedly creates a financial gain.
Should shareholders be able to sue Charlie for breach of duty? His action was motivated by harmful intent, and is a violation of his duty; but he accidentally created a benefit.
And the defense seems potentially reasonable, primarily because there are no damages. It all comes out in the wash, so to speak. The no harm, no foul argument may be reasonable here.
Does that mean that this argument should also apply in the slavery reparations context? Consider another hypothetical.
Hypothetical 2:
Violet Victim lives in the Del Fuego apartment complex. On her way back from work early on the evening of the 20th, Violet is kidnapped at gunpoint by Kenny Kidnapper.
Kenny ties her up and takes her to a secluded location, where he violently assaults her. He rapes her and beats her severely. Then leaves her, bleeding and naked, to die of exposure in the woods. Violet is found a few days later, miraculously still alive, and taken to a hospital where she eventually recovers somewhat from the trauma of her ordeal.
By happenstance, at precisely midnight on the 20th, a gas main directly below the Del Fuego apartment complex broke, and began a fire which immediately engulfed the entire building. There were no survivors.
At trial in the tort action, Kenny asserts the defense, “if I hadn’t kidnapped you, you would most likely have perished in the later fire.”
Is that defense convincing? Should it block Violet’s tort action? Should we really excuse Kenny’s harmful actions here?
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At the very least, it’s seems much more complicated to say that there’s no net harm here — that the inadvertent gain of removal from a bad place should outweigh the deliberate vicious acts. One could quite reasonably suggest that the inadvertent benefit of removal from the building should _not_ offset the deliberately harmful actions.
Why would we be more likely to allow an offset in the first hypothetical? Probably because monetary losses are more easily viewed as fungible. The concept of offset assumes some level of fungibility. Mere monetary harms are relatively easily viewed as fungible (and thus capable of being offset). Damages to person are more complicated, and it’s not clear that a benefit count for offset against a harm.
Of course, there are offset theories in areas of law. In the criminal context, for example, the Model Penal Code gives the justification of necessity; this is limited, though, and would not apply here. (As my colleague Anders Kaye points out, if I rescue someone from harm, I’m not allowed to simply kill that person the next day, and then assert a defense of net gain — the idea that since I bought the person an extra day of life, I haven’t really done any harm.)
Obviously, slavery is in the category of harm to person. Yes, it’s possible to construct arguments that would give an offset for the inadvertent benefit. But those arguments are by no means obvious or self-evident; and in fact, it seems to me that the opposite arguments are quite a bit more convincing.
November 7, 2007 at 6:56 pm
Posted in: Civil Rights, Reparations, Tort Law
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Responses (11)
Orin Kerr - November 7, 2007 at 6:51 pm
Kaimi,
I haven’t read the literature in this area, but I assume that those who make this argument also focus on the identity of who is hurt or helped. In the case of slavery, the malevolent intent was not directed at the individuals who would receive payment today; instead, it was directed at the ancestors of those who would receive payment. (I’m assuming, following what I gather is the assumption in your post, that the malevolent act you have in mind is the act of enslavement, not the residual effects of the history of American slavery on individuals of different races.) If that’s the argument, then the claim isn’t so much about “offsets” as it is about harm: the claim would be that those who are seeking reparations are actually beneficiaries of the act that they claim harmed them.
Kaimi - November 7, 2007 at 7:27 pm
Good point, Orin.
You’re right that this particular reasoning is often linked to (or made in conjunction with) a broader cluster of causation / attenuation / plaintiff identification arguments. And these arguments aren’t always clear (and the NLJ blurb is not particularly detailed.)
However, from the evidence cited, it sounds like the argument implies some kind of offset, because the evidence (relative standard of living) isn’t really needed to make the basic attenuation arguments.
Attenuation arguments against reparations are easy to make, and don’t really require any assertions about standards of living: “Slaves were directly harmed, but all slaves are deceased, and present day African-American claimants did not suffer enslavement. Therefore, they cannot show causation and should not be allowed to recover.”
It’s true that evidence of relative standard-of-living could enter that analysis, such as to show that slave descendants do not suffer from indirect or secondary harms. It would only come in as a rebuttal, though, to possible counter-arguments against the basic attenuation argument.
If straight causation-and-attenuation was really Birmingham’s argument, it seems very strange to highlight what is at best a relatively minor part of the equation. That is, instead of summarizing the argument as,
a straight causation-attenuation argument would be better summarized,
Giving prime place to the relative standard of living (as essentially the only part of Birmingham’s argument that is cited) suggests that rather than making a straight attenuation argument, he’s making an offset argument. Offset arguments are relatively common among reparations opponents; for instance, David Horowitz has suggested that slave descendants should be “grateful” (his word) for the fact that they live in America and have a higher standard of living than Blacks in Africa.
Does academic freedom extend to nonsense? - November 7, 2007 at 8:40 pm
Perhaps I am just missing something, but isn’t is nonsensical to compare “these blacks” to “those blacks”?
It is not as if American Slave A and American Slave B, who created Slave Descendant 1, would have, in the absence of the slave trade, met in Africa and been African A and African B, who produced Free Descendant 1. Nor is it necessarily the case that Free Descendant 1 and Slave Descendant 1 — born in a different time and place — have the same consciousness, i.e., are the same person. The slave trade may have created sexual pairings and individuals that would not have existed otherwise. Because there might not be any counterfactual world in which Modern African 1 is the doppleganger of Modern African-American 1, there is nothing to compare: just Modern African-American 1 or Nothing. Sure, existing is better than not-existing. But one isn’t worse off not-existing, because one doesn’t exist to be worse off.
Horowitz’s argument is, literally, nonsense.
Does academic freedom extend to nonsense? - November 7, 2007 at 8:45 pm
“isn’t it“, rather!
Stephen M (Ethesis) - November 8, 2007 at 8:13 am
What is interesting is that these issues do arise all the time in tort law, and even more so in employment law.
Now you’ve got me thinking about the difference between tort law and criminal law. In tort law you pay the victim. In criminal law you punish the wrongdoer.
The problem with most of the arguments is that they are beginnings, not ends.
davidb - November 8, 2007 at 10:20 am
If the claim is (an essentially individual rights claim) that blacks are due reparations as compensation for the forced labor of their ancestors, i.e., that they are essentially the heirs of a legitimate claim to compensation, then the comparison is inapt and irrelevant.
If the claim is (an essentially group rights claim) that blacks are due reparations because they bear the legacy of slavery and are therefore worse off than white Americans, then the comparison is quite relevant; it’s perfectly appropriate to retort that but for slavery, blacks wouldn’t be living like American whites, but like African blacks.
TJ - November 8, 2007 at 4:50 pm
Kaimi,
Your second hypo gave me pause, but I think there are two responses. So, as distasteful as it is for me to say it, I have to side with Birmingham here (I will be glad to be refuted):
1. The hypo focuses, correctly, on a tort law action. Thus, the fact that the criminal will be punished by the criminal system is being ignored. But what is really driving the sentiment that the defense shouldn’t work, I think, is that the offender should not get off free due to fortuity. We should punish and deter assault and rape even if, in a particular case, they result in “net gain”–becuase they usually do not.
2. The tort system, however, is not the usual method of providing this deterrence. It sometimes has this function, but mostly it is to compensate a victim for loss. And in seeking tort recovery, the victim in your hypothetical is explicitly seeking to monitize her loss. When monitized, the loss is zero.
3. Finally, reparations are even more explicitly a monitization of loss than your scenario. Reparations have two principle justifications: (a) to compensate the direct historical victims, where the money passes to their descendents via inheritance principles; and (b) a collective rights theory, the the descendents are continuing victims due to the historical deprivation. To take a loose analogy, (b) would be akin to a wrongful death suit.
If my analogy is right, then (b) is much closer to a case where the victim actually dies, and her relatives bring a wrongful death suit against the assailant; or a loss of consortium suit by a spouse. Historically, the relatives would get nothing because there has been no causation of loss.
Nonsense on stilts is still nonsense - November 8, 2007 at 6:06 pm
If the claim is (an essentially group rights claim) that blacks are due reparations because they bear the legacy of slavery and are therefore worse off than white Americans, then the comparison is quite relevant; it’s perfectly appropriate to retort that but for slavery, blacks wouldn’t be living like American whites, but like African blacks.
No, this still makes no sense. But for the slave trade they wouldn’t necessarily be living like African blacks, because but for the slave trade they might not be living at all.
Furthermore, not only is the retort invalid; it isn’t technically a retort. The definition of retort is “to return like for like.” The claim that the slave trade unfairly distributed wealth to one group of Americans at the expense of another group of Americans takes the slave trade as a given. The “retort” does not.
In order for Horowitz’s argument to make sense, you have to abandon all reason and any coherent approach to the English language.
KJS - November 8, 2007 at 8:13 pm
I think there is a clear difference between hypothetical 1 (H1) and hypothetical 2 (H2).
In H1 no damage is ever sustained as a consequence of Charlie CEO’s breach of duty (and hence, as Kaimi correctly points out, there is no damage to compensate for). In H2, it is true that the damage sustained by Violet through being assaulted by Kenny is arguably less that that which Violet would have sustained if the assault had not occurred but Violet still suffered damage as a result of Kenny’s acts. As Kenny’s actions could not in any way be construed as an attempt to save Violet from the greater harm of the gas explosion (of which he was unaware and, even with knowledge, his methods were wholly unreasonable) those actions should not (and I think it is fairly safe to assume in almost every jurisdiction would not) provide him with any defence against Violet’s tort claim.
Is there anything arising out of this analysis that could be applied to the reparations debate? Maybe only the observation that it would seem consistent with it to argue that ‘net benefit’ is not enough if actual damage was sustained (and forced servitude probably satisfies this standard), the tortfeasor did not intend to provide the alleged ‘greater benefit’ and the means adopted to provide the alleged benefit were not reasonably adapted to that purpose.
It does not follow that reparations should definitely be paid (as has been noted, there are other relevant arguments – such as whether decendants of persons directly affected should have standing to claim compensation for it) but it is perhaps at least one reason why the ‘net benefit’ argument does not present as one that is really congruent with the way the rest of the law of torts appears to have developed.
Brett Bellmore - November 8, 2007 at 10:12 pm
“This anti-reparations argument boils down to a “net gain” sort of theory. It says, in essence, “yes, we enslaved Africans.”
In point of fact, anti-reparationists would never make this argument, because a basic starting point of opposition to reparations is that we did nothing of the sort. Somebody else, long dead, did it.
In general, when you’re restating somebody’s argument, you should avoid introducing premises they explicitly reject.
Net Benefit Implicitly Concedes Being a Beneficiary - November 9, 2007 at 12:12 am
Somebody else, long dead, did it.
Except the “net benefit” theorist does admit to being an indirect beneficiary; his point is “Even if I did indirectly benefit from the slave trade, the benefit of being the descendant of a slave outweighs the cost of being a modern African, so that comparison, and not a comparison between myself and an American who descended from slaves, is the relevant one.”
Which, again, is nonsense, because the argument is between Americans arguing about the distribution of the spoils of slavery amongst Americans. If a young person said, “Hey, the Boomer generation will get all the benefit of Social Security!” it is a non sequitur to reply, “Young people in some Third World countries are dying of starvation.”
Not to mention reeking of ageist condescension.
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