“Too big to remedy?” Rethinking mass restitution for slavery and Jim Crow.

Source: (2010) Loyola of Los Angeles Law Review. 44:177-232.

Slavery and Jim Crow inflicted horrific harms on Blacks in
America. Official silence aggravated that harm, as neither victims nor
their descendants received monetary restitution, nor even (until very
recently) any official apology. Reparations advocates have repeatedly
called for compensation to slave descendants. But how exactly does
society compensate for slavery?
Of course, compensation for mass injustice is always difficult to
calculate and administer. Slavery puts the normal concerns of mass
compensation into sharp relief and adds a whole new set of unique
concerns for courts, legislators, and scholars.
In this Article, I use slavery and Jim Crow harms as a case study
to examine some of the difficult questions that arise in mass restitution
cases. I argue that some reparative action is needed in the case of
slavery and Jim Crow; the longstanding lack of response only
reinscribes injury. However, traditional tort compensation is
inadequate. Victims cannot be truly compensated-only symbolic
restitution is possible. Ultimately, slavery and Jim Crow seem “too big
to remedy ” under the legal system.
Because true restitution is impossible, we must consider other
options based on our ideas of justice. Thus, responding to slavery
challenges us to rethink both the goals of restitution and our underlying
conceptions of justice. Reparative measures, while they cannot make
victims whole, can play important roles in society and benefit victims in
other ways. I examine how the goals of restitution can be advanced though various non-tort or otherwise non-traditional approaches,
including restorative justice and atonement, microreparations and
apology, storytelling, and the traditional Hawaiian remedy of
ho’oponopono.
Just as some insurance companies may be viewed as “too big to
fail,”‘ are there some mass harms that are simply “too big to
remedy”?I This Article examines that question using the lens of claims
arisingf rom slavery and Jim Crow. (author’s abstract)