The Case for Black Reparations

July 6, 2020

Many years ago, one of my professors at law school, Boris Bittker, wrote a book called The Case for Black Reparations. Bittker was known mostly for his work on taxation, but he cared and wrote a great deal about race. One year at Reunions, he took my wife and me to see a pair of very interesting films about the confinement of Japanese-Americans on the West Coast in internment camps during World War II, and the experience of Japanese-Americans in Hawaii, many of whom served in the American military. Bittker’s book on black reparations went through the issues in a very lawyerly way as if he were arguing to a court. But let me describe it on a very human level.

First the white slavers stole the freedom of Africans. Then they stole many of their lives, and, of those who survived, they stole the fruits of Black labor. When finally, the slaves were legally freed, White Supremacists stole it all again: the lives of African-Americans by lynching, their labors by a century of intimidation that virtually re-enslaved them. And when finally they found places where they could prosper, White Supremacists, many in the white robes of Klansmen, burned those places to the ground – the Black Wall Street in Tulsa,  Rosewood in FL;  changed election results by murder in places like Colfax County, Louisiana,  and Wilmington, North Carolina; and went on murderous rampages in a number of northern cities.  When whites made programs that helped build white wealth – like Social Security and Unemployment Insurance – jobs held by Blacks were excluded by statute. When Blacks sought good jobs, discrimination shut them out. When segregation finally became illegal, African-Americans had to start again on the ground floor of white men’s businesses, where once again they were given little for their effort – how many times do Trump and his white supremacist supporters insist on making their own wealth by stealing the labors of African-Americans?

And when they engage in peaceful protest, they’re told it’s unseemly behavior. Heaven forbid a Black man take a knee, or complain that Black Lives Matter. We aren’t supposed to focus on righting the wrongs to our African-American friends, colleagues, clients, customers and citizens.

So yes, there’s a strong case for reparations. I understand we’re not equally responsible nor equally beneficiaries of the wrongs done. But we Americans quite ordinarily help each other when we can. And, anyway, that’s a problem for the tax code – if the rich make the poor pay for reparations, it will be just as unfair as everything else the rich make others pay for. It matters how it’s done.

I have, however, one reservation. The most important thing that we can do for our African-American brothers and sisters is to secure their safety. We’ve all been talking about that nonstop for quite a while as each new case surfaces of African-Americans viciously and needlessly killed.  I’ve been commenting about that for years and have worked to fight it in the courts. I’m not sure what road gets there first, so that my friends, colleagues and former clients can enjoy their lives, family, property and careers in safety. That will take more than money. It will take effort and commitment to turn so-called law enforcement around so that it enforces the law for the benefit of everyone, including people of color. Few things would give me greater joy or peace of mind than to be able to share this life in peace and justice with all of you.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on July 7, 2020.

 


No Justice for the Vulnerable

December 29, 2015

In this season of charity, I’d like to talk about the fate of the less fortunate to make clear how our politics has been turning a blind eye to the damage it does.

When we aren’t responsible for the costs imposed on others, we will continue to hurt them. Economists call that externalities. Businesses don’t have to pay for the effects on our environment so most businesses continue doing global damage just as much as if they were perfectly benign. Forcing businesses to pay for workers’ injuries, forced them to take account of ways they could save money by protecting their workers – not out of the goodness of their hearts but because the legal system said they had that responsibility. When costs are internalized, they result in better overall decisions.

In the law of eminent domain, cities have to pay for taking people’s property regardless of how wonderful their plans. They have to internalize the costs their plans will do to the owners of real property. When they did urban renewal, the cities didn’t have to pay for the businesses whose customer base was destroyed, and they didn’t have to pay for forcing people into much less safe or appealing housing or projects. So cities avoided taking high priced real estate but they freely wiped out the businesses of the most vulnerable. Those costs were externalized, imposed on other people who had no choice in the matter.

In fact our system makes scores if not hundreds of thousands of innocent victims with no thought of internalizing the damage and paying any form of compensation.

When an individual is wrongly imprisoned for a quarter century and is lucky enough for someone eventually to find a way to convince the courts to let him out, with DNA or other conclusive evidence, that individual has to prove that someone was not only derelict in his or her duty, but did not have one of the many privileges that the law gives people in the criminal justice system, or that the city or state was derelict in its duty of supervision and training, before that individual has any right to compensation. Everyone in government gets to smile and say justice was done while continuing to do the kind of careless investigation and sometimes deliberate withholding of evidence that kept people in prison. They aren’t made to internalize the costs of their misbehavior.

Would police departments be so happy to retain police officers if the department budget took a big hit every time a cop guessed wrong and shot an unarmed civilian? Or would the department institute practices to make that stop?

In fact our law makes the victim or survivors prove specifically what the city should have done in training or by regulation or what the officer should have done under the circumstances. Asking only whether the officer’s behavior was reasonable, the law doesn’t take account of the reasonableness of the victim’s actions. In other words, instead of making the officer and the city responsible for their mistakes, it puts the risk of police error on the individual.

Of course that is typical of American law – protect those who don’t need it but leave the vulnerable in the gutter with a sheet and a prayer. There’s little justice in America for the vulnerable.

— This commentary was broadcast on WAMC Northeast Report, December 29, 2015.

 


Supreme Court Protects Prosecutorial Misconduct That Threatens the Innocent

September 25, 2012

As you think about whom you’ll vote for, let me tell you about two decisions of the Roberts Court where the Court sprang to the defense of prosecutors whose denials of constitutional protections had put innocent men in prison for decades. Read the rest of this entry »


Outdated Legal Doctrines

May 22, 2012

The law of contract, based on the consent of the parties, and the law of torts, based on our obligations when no agreement covers what happened, are fundamental to American law. There is only one problem. Both fields are hopelessly out of date. Read the rest of this entry »


%d bloggers like this: