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.
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.
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?
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.