Reparations Talk: Reparations for Slavery and the Tort Law Analogy

Abstract

This Article examines the current landscape of reparations for slavery, identifying the contours of reparations lawsuits and exploring the ability of tort law to help apportion moral culpability in the reparations context. It first examines several possibilities for lawsuits for Jim Crow, discussing constitutional requirements and identifying specific incidents such as lynchings and Jim Crow legislation-that might be appropriate subjects of litigation. The Article then assesses the viability of obtaining reparations through tort and unjust enrichment claims by addressing issues such as causation and damages, exploring the obstacles presented by American law's liberalism, and identifying the various goals of reparations advocates. Finally, the Article moves beyond litigation to contemplate the ability of tort law to serve as a vehicle for framing discussions about moral culpability. It concludes with an optimistic assessment of the role of tort law in the reparations movement.