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In recent years we have seen the emergence of human injustice claims seeking reparations through special legislation or lawsuits to redress wrongs against particular ethnic groups. While some claims appear to have some legal validity — such as those filed by Holocaust survivors against companies that profited from their forced labor or withheld insurance benefits or access to bank accounts — the emerging wave of African-American slavery-related lawsuits lacks any legal foundation and should be dismissed. Although the courts may be the appropriate avenue to vindicate the rights of a disenfranchised minority where there is a clear injury to a defined class and a legal basis for the claim, the slave-reparation plaintiffs have articulated neither standing nor a cognizable claim. In the final analysis, these cases are not really about pushing the envelope and making new law. Rather, they are part of a strategy to inflict public relations damage in order to coerce political and economic concessions. The federal courts should stand firm against this gathering storm, dismiss the lawsuits and leave the complex issues of social policy they raise to the political process. The issue of reparations for African-Americans for the direct and lingering effects of slavery became the subject of renewed interest when governments and private parties granted other groups special dispensations, such as the Civil Liberties Act of 1988, which provided money and an apology to persons of Japanese ancestry held in internment camps during World War II. And we have seen the payment of reparations to Native Americans and the settlements by banks, insurance companies and German businesses to Holocaust survivors. Those advocating reparations for African-Americans have called for lawsuits against virtually every segment of American industry and government, as well as individuals. On March 26, three federal class actions, Farmer-Paellmann, Carrington and Madison, were filed against a national bank, an insurance company and a railroad, in the federal district court for the Eastern District of New York on behalf of all African-American slave descendants. The suits allege that disparities in education, income, health care, divorce and crime rates are the result of slavery and subsequent social repression. They seek damages and the creation of “an independent historic commission to serve as a depository for [slavery-related] corporate records.” The actions are based on conspiracy, contract (restitution for forced labor and underpaid post-abolition labor); tort (including kidnapping, forced indoctrination into a foreign culture, abuse and economic discrimination resulting in low self-esteem and related social problems); and constructive trusts on unpaid wages. LACK OF STANDING, TIMELINESS All of these claims face significant legal challenges. They are extraordinarily stale under even the most charitable application of equitable tolling principles. The witnesses are long since dead and much of the relevant documentation lost. Any trial would degenerate into a polemical battle of academic experts relying upon a far from complete historical record. It is also questionable whether the descendants of slaves have standing. In dismissing a kidnapping and slavery case against the federal government, the court in Cato v. United States observed that the standing doctrine prohibits one litigant from raising the legal rights of another and requires that the personal injury alleged must be “fairly traceable” to the defendant’s unlawful conduct. Unlike the Holocaust-survivor litigants, the African-American slave descendants assert the legal rights of their forebears. In contrast, many of the corporations that are likely targets for such suits acquired the slave histories of other companies without directly profiting from them. Slavery, however abhorrent, was lawful at the time. The various legal theories posited in the reparations suits were never intended to redress grievances arising out of lawful practices. Federal courts sitting in diversity would have the unenviable task of divining whether their forum state’s highest court would recognize any of these theories in this context. Parties such as railroads, steel manufacturers and others that worked under contract with federal or state governments could invoke derivative sovereign immunity defenses, contending that the government specifications for the particular public work or service that they performed encouraged the use of slave labor in order to defray costs to the taxpayers, and that they made lawful use of slaves at that time. The quantification of damages for unpaid wages and emotional distress for persons long dead is inherently speculative, and, theoretically, damages would vary greatly among class members’ ancestors (assuming proof is possible). While it is a fact of American life that the courts are used as instruments of social change, the minimum requirement of a bona fide claim must lie at the heart of a suit. Here, those seeking reparations or a sweeping apology would be well advised to seek it through the political process, because it is unlikely these cases will survive to trial. Steven P. Benenson is a principal of Porzio, Bromberg & Newman. He is chair of the firm’s mass tort and product liability department. He concentrates his practice in the areas of product and pharmaceutical liability, toxic tort, and business and commercial litigation in state and federal courts.

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