The Faculty Lounge

Re-emergence of Anti-Reparations Literature

I've been blogging for some time now about how reparations talk is persisting in the academy.  And now I want to call attention to another sign that the discussion of reparations is persisting -- that there is new literature arguing against reparations.  Larry Alexander and Maimon Schwarzschild now have a book review essay, entitled "Race Matters," of David Boonin's book Should Race Matter? up on ssrn.  Here is their abstract:

One frequently hears that America has a race problem. We agree, but the race problem we identify is not what is usually meant by those who invoke it. It is not discrimination, intentional or otherwise, but rather obsession with race that is America’s more consequential “race problem” today. America has vanquished slavery, segregation, and long-standing racial discrimination only to succumb to an almost equally destructive race obsession. Despite the biological arbitrariness of dividing a single, interbreeding biological species into “races,” despite the sorry history legally and socially of the use of race, and despite the civil rights movement’s original ambition to substitute the content of character for the color of skin as the basis of decision making, America today is in many ways as race conscious as it was in the era of Jim Crow.

For that reason we welcome David Boonin’s Should Race Matter? Boonin takes up five topics that constitute a good portion of the current obsession — reparations, affirmative action, hate speech, hate crimes, and profiling — and he subjects each to philosophical scrutiny. Boonin is sober and fair minded in tone, and purports to be careful and comprehensive in method. Unlike many discussions of race, Boonin’s tries to shed light, not heat. He deserves to be read by everyone who takes a serious interest in public policy as it bears on race.

Boonin’s book has its limitations, as we will suggest. Moreover, Boonin discusses only race, not sex, ethnicity, nationality, religion, disability, or sexual preference, although most of the policies he considers have been urged or actually extended beyond race to some or all of these other categories. Nonetheless, Boonin’s analyses of these policies as they bear on race would have direct implications for these other categories. Given that Boonin takes 350 pages to examine five racial policies, we think limiting his focus to race was quite justifiable.

Although we believe Boonin’s is a worthwhile treatment of contemporary racial policies, we take issue with him on several points. We think that his arguments in support of affirmative action and hate crimes are incomplete and thus unpersuasive, and we consider his case for reparations a failure on its own terms. Nonetheless, we admire the effort at fair-mindedness and the care with which he makes the case for these policies.

About a decade back I pointed to the emergence of anti-reparations literature as a sign that the field was maturing.  Perhaps the fact that two important scholars are again engaging with the anti-reparations arguments suggests the vitality of the field.

Does Reparations Have a Future?

This Friday the University of Virginia's Carter Woodson Institute is hosting a symposium on the question, "Does Reparations Have a Future?"   I suppose the short answer is that people are continuing to use reparations talk as a way of organizing their thoughts and actions around racial justice -- even as the case for reparations has been largely defeated in the courts and in legislatures.

 One of the things that really interests me -- and that Kaimi Wenger has written about --- is how reparations has been de-radicalized in recent years.   Legislatures, corporations, and institutions are more willing to engage in discussions about the past (what some people call truth and reconciliation commissions) and issue apologies.  That's the non-radical part.  The radical part -- which continues to meet stiff restsitance to the extent it's talk about at all -- is money.  And that's not going anywhere soon.

There are four panels, "Reparations in Historical Frame," "Reparations and the University," "Reparations and the Nation," and "Reparations Around the Glove."  The speakers include Martha Biondi of Northwestern University; Lawrie Balfour of the University of Virginia; Lisa Crooms of Howard University; William Darity of Duke University; Adrienne Davis, of Washington University;  Michael Dawson of the University of Chicago; Ted Delaney of Washington & Lee University; Kim Forde-Mazrui of UVA; Darren Hutchinson of American University; Alex Johnson of UVA; H. Timothy Lovelace of Indiana University; Pap NDiaye of  L'École des Hautes Études en Sciences Sociales; Melissa Nobles of  MIT; Margaret Urban Walker, of Marquette University; and Verna Williams of the University of Cincinnati.  Here's the full schedule.

Beckles on Britain's Black Debt

I've been lucky enough to secure  an advance copy of Hilary Beckles' Britain's Black Debt: Reparations for Caribbean Slavery and Native Genocide, which will be published at the end of next month by the University of West Indies Press.  As I've been saying for a while now, though the case for reparations has been largely defeated in courts (though we should take notice of Polley v. Ratcliff, which Atiba Ellis writes about here) -- and largely, though not completely, rejected by legislatures -- scholars and activists continue to press the case.  There is much to talk about and address in the chasm between African American and non-Hispanic white wealth in our country.  And reparations talk is one way that people are continuing to circle back around to discussion of our nation's history and what its legacy for today and what we should do about it.

Beckles' book is a work of what I guess we might call applied history.  It combines a history of slavery in the Caribbean with the case for doing something now about the legacy of slavery.  The second part draws on Beckles' discussion of the brutality of slavery and its centrality to the British empire to make the case for reparations today.  It never ceases to surprise me how brutal slavery was.  The book's epigraph begins "'Barbarity Time' was the term used by enslaved Africans in the British Caribbean to describe the period of their enslavement."  (Shades of Bernard Bailyn's The Barbarous Years.)  And about a third of the book retells that story -- about sexual enslavement and all sorts of other brutality.  Then the book tells about the profits made off of slave labor and the money paid to slave-owners when slaves were freed in 1838.  

It is a haunting story of brutality and a legacy of lost opportunity and harm that continues to the present.  But what interests me the most is the part that deals with what to make of that legacy.  The UN's 2001 Durban conference looms large in this story.  Beckles also focuses a lot on international law -- there seems to be a sense here that this transoceanic, multigenerational tragedy can be solved in some ways by appeals to law.  While law may offer a way of framing the issues, I wonder whether this is too big to be solved by law.  Do we need more focus on the great moral issues -- how much should the current generation pay for the sins of past generations?  Especially when there are continuing benefits of the generations of slavery.  There is a lot of hard political work that needs to take place to move reparations from the realm of discussion to that of economic reality.

This is the most important book on reparations published in recent memory; these issues aren't going away just yet.  And I'll have a lot more to say about this book and the relationship of the historical part to the reparations part in an essay review that will be coming out in Slavery and Abolition sometime next year.

Taking a Measure of the Past and Present

Paul Lombardo, the Bobby Lee Cook professor of law at Georgia State, has a terrific op-ed, "When Heroes Stumble," over a controversy about an award given by the American Sexuallty Transmitted Diseases Association in the name of Dr. Thomas Parran.  Here's the beginning of Lombardo's essay: 

The American Sexually Transmitted Diseases Association faces a quandary. The name of Dr Thomas Parran, a 20th century hero in the field of sexually transmitted disease prevention, accompanies a prestigious award given by the organization annually. Members are now confronted with the unsettling realization that Parran, like many honored figures of the past, also had a less heroic side. It was already known that he presided over the Public Health Service in the early years of the infamous Tuskegee syphilis study; more recently, the world learned that the scandalous intentional infection studies in Guatemala after World War II also occurred on Parran’s watch. Material from the files of Dr John Cutler, who directed the Guatemala experiments, has provided more troubling details. It suggests that Parran not only knew the details of Cutler’s work but also endorsed it with full awareness of its ethical toxicity. Should Parran, a giant of the field, be banished from its Pantheon, or should his eponymous award remain despite the newly found stain on his reputation?

Read the rest here and more on the Parran Award controversy here.

The image is of the Buck v. Bell monument in Charlottesville, which I'm using because Lombardo wrote the leading book on the case and is a leader of the movement to recognize and atone for the tragedy of forced sterilization in the twentieth century. h/t to Greg Dorr, who's the author of another leading work on eugenics in the twentieth century, Segregation's Science.

Affirmative Action (In)Consistency (Obligatory Post on L’Affaire Scholastica)

As some of you may have noticed, (at least some of) legal academia is abuzz about the fact that Scholastica, the ExpressO competitor, asks authors to provide optional information about their gender identity, race, sexual orientation, and any additional “hardship diversity,” such as socio-economic status or geographic region. In response to objections by some, Scholastica has given individual journals the option of requesting the information or not, and to date, only California Law Review and NYU Law Review have done so. As a result, when you submit through Scholastica, you will be asked to provide optional demographic information only if you submit to one of those two journals. Josh Blackman has the background, including screen shots of the prior and current “diversity widget” and responses from various law review editors (here, here, and here). You can find additional musings about all of this at CoOps (here, here, and here), Prawfs, ProfessorBainbridge, and the VC. (Update 2/16/13, 5:30 pm: Kaimipono Wenger has a thoughtful Defense of Law Review Affirmative Action over at CoOps.)

Although these musing reflect a range of views, the majority, it seems to me, objects — in some cases vehemently, with calls for a boycott — to the notion of journals deliberately selecting articles on any basis other than merit. My immediate interest in this is not about the appropriateness, per se, of what I’ll call, for simplicity’s sake, affirmative action (AA) in article selection. (For thoughts on that, see the links above.) Rather, I’ve been struck by the strength of objections to this apparent practice in light of equally strong beliefs in the appropriateness of AA when it comes to selecting conference participants, and the like. Here’s the question I posed on one of Dave Hoffman’s Scholastica threads over at CoOps:

I’m curious if you have a position on using gender, race, and the like to select invitees for symposia, conferences, and similar speaking engagements. Is doing so an equally bad idea, in your view, or are there differences between the two situations that suggest different answers? I ask because my first instinct, on hearing of (what it seems to me fair to call) affirmative action at the level of scholarship selection, was that this, like many other aspects of legal scholarship, is a clear anomaly within academia at large (quite apart from its merits or lack thereof as a practice). But then I considered the fairly common — and fairly strong — norm (if not necessarily consistent practice) elsewhere in academia of trying to ensure that one invites a suitably diverse panel of speakers. Indeed, in philosophy, entire boycotts are currently afoot in response to perceptions that conferences failed to include sufficient numbers of women. So I’m wondering whether you think these situations are on all fours, or whether there are significant relevant differences. (To be clear, I don’t mean to be asking a leading question; I’m truly just curious about what you and others commenting on this think about this possibly analogous practice.)

Although “Anon” responded that s/he viewed these as “analytically equal” (and equally inappropriate), one "AnonProf" argued at some length that the two practices could in fact be distinguished, with AA appropriate — indeed, “very important” — for symposia invites, but not for article selections. Dave, who has said that AA in article selection is a “terrible, terrible practice,” agreed. [Update 2/17/13, 11:05 pm: Dave has clarified his reasons for distinguishing article selection from symposia invites here.]

As I said there, “I’m actually not convinced that the two situations are much different — and I’m definitely not convinced that any difference between them is as large as “very important [to do]” in the context of selecting diverse speakers (in AnonProf’s words) and “a terrible, terrible practice” in the context of selecting diverse writers to publish (in Dave’s turn of phrase).” Since the Faculty Lounge seems to be the only law blog without a Scholastica diversity post, and since my fuller response to AnonProf’s argument would have further hijacked Dave’s thread, I thought I’d move this aspect of the conversation here.

The Latest on Reparations: Two Articles and a Conference

I've been writing for some time now about the rebirth of writing on reparations.  Further to that point I see that there are two new articles on ssrn.  Eric Yamamoto has posted "Korean 'Comfort Women' Redress 2012 through the Lens of U.S. Civil and Human Rights Reparatory Justice Experiences."  Here is the abstract:

In light of international scrutiny, what might be next steps toward redress for the Korean and other World War II Military Sex Slaves, in terms of strategic framing of their claims to reparatory justice? More particularly, viewed through a lens of American redress experiences, and particularly the U.S. apology and reparations for the Japanese American World War II internment, what might human rights tenets of reparatory justice offer established governments faced with challenges to their legitimacy as democracies in the face of unredressed human rights transgressions? 

Redressing the wounds of injustice has become a matter central to the future of civil societies. Whether a country heals persisting wounds is increasingly viewed as integral, (1) domestically, to enabling it to deal with pain, guilt and division linked to its past in order to now live peaceably and work productively, and (2) globally, to claiming legitimacy as a democracy genuinely committed to human rights (which affects a country's standing on international security and responsible economic development.) People and governments -- especially democracies with histories of human rights abuses -- all have a stake in justice that repairs. 

This larger stake in democratic legitimacy that a country like Japan has -- especially as it seeks to expand its influence in international security -- lies at the heart of this assessment of strategic future paths toward "Comfort Women" redress.

Atiba R. Ellis has posted "Polley v. Ratcliff: A New Way to Address an Original Sin?"  Here is the abstract:

This essay recites the history of the Polley v. Ratcliff litigation and interrogates its relevance for modern considerations of racial inequality in America. The Polley case began in 1850s with the wrongful kidnapping of the children of Mr. Peyton Polley, an emancipated African slave who lived in Ohio. The litigation continued from 1851 to 1859 without clear resolution. Although this incident has been discussed at length by historians, the litigation itself came to a remarkable conclusion on April 6, 2012. On that day, some 162 years after this Dred Scott-era kidnapping, Judge Darrell Pratt of the Circuit Court of Wayne County, West Virginia, entered a decree declaring that Mr. Polley wrongfully kidnapped children — Harrison, Louisa, and Anna — “were, and are, FREE PERSONS as of March 22, 1859." 

This declaration represented a monumental historical moment in West Virginia history, and it represents, as this essay will argue, an opportunity to consider the question of what our societal response to slavery and racism has been over time and what it ought to be in the twenty-first century. The essay considers the various modes through which Americans look at the history of slavery and race-race consciousness, racial reparations, and post racialism — and then it argues that the Polley litigation represents a different model for considering the American history of race, a model akin to truth and reconcilliation.

I hope to talk some about both of these articles soon.  I also want to mention that UVA's Center for International Studies has a conference on reparations on March 21 and 22 of this year.  It is provactively title "Does Reparations Have A Future?   Rethinking Racial Justice in a "Color-Blind" Era."  While reparations lawsuits have been relatively unsuccessful, there has been some forward progress on reparations legislation -- and also on apologies.  So one part of the answer is yes, even as the case for wide-spread reparations action is remote.  The speakers include Martha Biondi, Professor of African American Studies and History, Northwestern University; Lisa Crooms, Professor of Law, Howard University; William Darity, Arts & Sciences Professor of Public Policy, Professor of African and African American Studies and Economics, Duke University; Adrienne Davis, Vice Provost, William M. Van Cleve Professor of Law, Washington University; Ted Delaney, Professor of History, Washington & Lee University; Darren Hutchinson, Professor of Law, American University; H. Timothy Lovelace, Jr., Professor of Law, Indiana University; Melissa Nobles, Arthur and Ruth Sloan Professor of Political Science, MIT; Margaret Urban Walker, Donald J. Schuenke Chair of Philosophy, Marquette University; and Verna Williams, Professor of Law, University of Cincinnati.  Here is the complete program.

The Resurrection of Nat Turner

I'm preparing for a CLE lecture I'm giving tomorrow afternoon on the trials in the wake of the Nat Turner rebellion.  Because I frame the lectures between two North Carolina cases -- State v. Mann in 1830 and State v. Will in 1834, I'm calling the lecture "Slave Trials in Virginia and North Carolina, 1830-1834."  But this is mostly about the trials in Southampton County in the wake of the rebellion.  There's some surprising stuff in those trials.  For instance, some people were actually acquitted.  But that's a story for later.  

Right now I want to talk about a two volume novel by my Durham neighbor Sharon Ewell Foster: The Resurrection of Nat Turner.  Foster's books are really interesting to me because she is grounded in many ways in the history of the rebellion and antebellum America.  The novel is framed by the efforts of Harriet Beecher Stowe to write about the rebellion in her novel Dred: A Tale of the Great Dismal Swamp.  And so Stowe and some other abolitionists -- including Fredrick Douglass -- are in the book.  Thus, Foster populates her book with actual historical actors -- and very exciting for me -- she bases a lot of this on data of how those people actually behaved.  Thus, a lot of the characters from the Turner rebellion are in the novel -- from the rebels to the white people of Southampton.  There are some of the key witnesses to the rebellion, who testified at the trials, and even some of the lawyers and judges.  As I historian I'm excited that the people I've come to know through the trial records are also people that Foster has come to know.  Of course as a novelist she has license to move well beyond what the historical record shows and to fill in gaps.  Even to extend into the world of what might have happened -- or how she thinks things should have happened.

Foster portrays Nat Turner as the son of a slaveowner who had promised Nat his freedom.  Nat's father even -- Foster supposes -- made him a trustee of the Turner Baptist Church.  But Nat's family members refused to honor his father's wishes and kept him in slavery.  Nat, though, who has heard about the cities of Ethiopia where his mother came from, plans to lead slaves out of Southampton County, to freedom.  Foster then turns to the trials afterwards and portrays the white slaveowners as claiming that more slaves were involved in the rebellion than actually were -- and they did this so that they would receive compensation from the state when their slaves were executed.   Thus, one of the key witnesses -- Levi Waller -- whose family suffered the worst losses of anyone in the rebellion, appears in Foster's novel as a person who lied on the witness stand in order to convict slaves, so that he could receive money for them.  Turner's lawyer, William Parker, as well as the lawyer Thomas Gray (who published the Confessions of Nat Turner) appear in the novel, as does the prosecutor William Brodnax and defense attorney William French.

As I say, Foster bases her characters on historical figures, but she also departs from the historical record -- some of this I've already discussed, as in Turner was promised his freedom by his father.  That may have happened, but there's not evidence of this.  Another example of this is Foster's treatment of Will ("the executioner"), one of the rebels who Foster supposes survived the rebellion and fled north.  As part of the process of investigating the rebellion, Stowe meets with Will.  I'm thinking that Will died during the rebellion, probably at the first clash with the local militia at Parker's field.  And Foster turns Thomas Gray, who published the "Confessions of Nat Turner" into someone who was in on the conspiracy to make Turner into more of a rebel than he was.

I think Foster's novel is important not just for her reconstruction of the lives of the actors in the Turner rebellion, but for how she interprets the motives behind the rebellion and the trials afterwards.  There was violence aplenty during and in the wake of the Turner rebellion.  Foster makes judgments about the nature of the trials -- and the motives behind them: this was not so much about restoring order through violence (how's that for a riff onRichard Slotkin's book?) as about making money from the execution of innocent slaves.  

I see the world somewhat differently from her -- there are different motives (I see the trials more about control and less about economics).  I struggle with trying to make sense of Turner.  Was he, as an antebellum observer in Richmond asked, motivated by a desire for freedom or for vengeance?  It's hard to make someone who kills indiscriminately into a hero -- even as we may seek to understand the world of violence from which he emerged.  I'm deeply interested in why Turner chose the families he did to attack -- was this an issue of proximity or revenge?  Both?  And it's important to remember the violence in the wake of the rebellion, too.  Enslaved people were indiscriminately shot and, of course, tortured.  (This is part of the context for my observation that Django Unchained had less violence than I expected.)  As happens so often in history, the violence of slavery led to the violence of resistance, which led to even greater violence as the rebellion was put down and vengeance was extracted on those least able to bear it.

The purposes of history and literature differ, often -- though in a lot of ways they also overlap.  We can learn a lot from Foster's reconstruction of the Turner rebellion and the responses to it, especially as her re-interpretation of it challenges us to see the motives behind the system of slavery and the impulses towards freedom that clashed in Southampton from August through November 1831.

Attanasio on Mass Reparations in Unequal and Resource-Limited Societies

David Attanasio of Universidad de los Andes, Facultad de Derecho has posted "Mass Reparations in Unequal and Resource-Limited Societies: A Social Repair Framework."  Here is Attanasio's abstract:

While it has received limited treatment in the international reparations literature, Pablo Kalmanovitz and Rodrigo Uprimny have drawn attention to a deep problem that confronts the design of mass reparations programs in developing states: the constraints imposed by social inequality and a lack of public resources. Under such circumstances, an ideal of reparations that seeks to undo the serious human rights violations suffered or to return to the status quo ante seems inappropriate, as it would require transfers of limited public resources to the wealthy victims and would provide inadequate attention to poor victims.

In this article, I propose a general framework for reparations in a transitional context that can appropriately guide the design of reparations in light of these tensions: a framework of social repair. Drawing some ideas from reconciliation or atonement-based solutions to problems of multi-generational or historical injustice, I develop a version of the idea appropriate to a transitional context that looks to the past wrong as the reason to repair the relationship of a victim to his or her state or society. Because, as I argue, the requirements on reparations that flow from an ideal of social repair are highly contextual — depending on the victim’s and the society’s circumstances — it can appropriately shape the required reparations in response to limited public resources and social inequality. 

As a framework for transitional contexts, social repair not only solves in a principled manner the central problem, but also provides appropriate resources to develop the details of areparations program — including the appropriate role of symbolic dimensions of reparations. It can theoretically explain some reasonable policy suggestions made by Uprimny with regards to prioritizing material reparations for poor and socially excluded victims, while also providing the resources to determine to what degree reparations ought to prioritize such victims. But beyond concrete policy suggestions, the framework should be useful for thinking about reparations in a variety of different developing states with very different circumstances, as the framework provides general tools for analyzing reparations proposals.

Unfortunately, when it comes to reparations every society is resource-limited.  That is, there aren't near enough resources to repair for all the harms of the past and there must be some way of ordering the claims.  Attanasio is really onto something by prioritizing the people most in need.  This is where a lot of talk of reparations for slavery and Jim Crow in the United States has gone in recent years (such as here).

The Smithsonian and Slavery

Mark Auslander's recent article in Southern Spaces, "Enslaved Labor and Building the Smithsonian: Reading the Stones," shows that the stones used to build the original Smithsonian (now known as "The Castle") were quarried by slaves.  The Washington Post has a story about this here.  I guess at this point none of this should surprise me; slavery was so ubiquitous.  When I have some more time I want to talk about Mark's work and about his reliance on probate records to trace the lineage of the slaves who worked at the quarry in Maryland.  And maybe I'll join that with a little talk about the controversy over Jefferson as a slave owner.

Update: Check out the comments to the Post article; there are over 700 as of 5 pm and a bunch are raising the issue of reparations.

The image is of the Smithsonian Building from the Library of Congress' Making of American website.

The Future of Reparations

Greg Alexander of Cornell Law School has just posted a paper on "The Complexities of Land Reparations."  And a lot of what he has to say applies to reparations more generally.  Here is his abstract:

The question whether unjust dispossessions of land perpetrated on whole peoples in the past should be corrected by restitution in kind, that is, granting reparations in the form of returning land to the dispossessed former owners or their present-day successors is substantially more complex than the questions posed by other forms of reparations. I argue that the complexities involved in all of the situations where claims for land reparations are made to correct historic injustices give us good reasons to be hesitant about granting such claims. At the same time, we should not dismiss such claims out of hand. Reparations which take a form other than restitution of dispossessed land may be both necessary and sufficient to establish a public marker of acknowledgment.

Hat tip to Steve Clowney over at propertyprof, who also writes on allied issues.  This deeply serious and thoughtful paper is further evidence of the resurgence of reparations talk in the academy.

More Reparations Talk

As I've observed before, talk of reparations has been pretty scarce of late, but I'm wondering if it's going to make a comeback in the academy.  For instance, last spring North Carolina came close to providing compensation to sterilization victims.  And I now see that Andrew Valls at Oregon State has posted a new paper, "Liberal Egalitarianism and Black Reparations."  Here is Valls' abstract:

Racial injustice in the United States has many manifestations, but the most tangible among them is material inequality. The racial gap, as measured by any indicator of wellbeing, is large and has changed little in recent decades. Since the civil rights era, the ratios of white to black household income and wealth have been remarkably consistent. Median black household income has hovered at around 60% of median white household income (Isaacs 2007). The wealth gap is much greater: before the Great Recession of 2007-09, the ratio of white to black household wealth stood at about ten to one; after the recession, it rose to astounding twenty to one (Kochlar, Fry, and Taylor 2011). Black unemployment has been roughly double that of whites for decades (Bureau of Labor Statistics 2011). The black poverty rate has been two to three times that of whites over the same period (DeNavas-Walt, Proctor, and Smith 2011). 

These grim statistics have deep historical roots. Though the causes and mechanisms of ongoing racial inequality are complex, there is no doubt that much of the underlying cause of structural racial inequality in the United States is caused by patterns of segregation and practices of discrimination that have taken place for much of our history. The evidence of the roots of present-day racial inequality in historical practices, many of which had the active support or at least the acquiescence of governments at the federal, state, and local levels, is overwhelming (see Conley 1999; Massey and Denton 1993; Oliver and Shapiro 2006). The racialized character of inequality in the United States reflects the failure to confront and address the accumulated effects of the subordination and oppression of African Americans under slavery and Jim Crow, so racial inequality in the United States is a case of unrectified historic injustice. 

This is the situation that some activists and scholars attempt to highlight by raising the issue of black reparations. The idea of black reparations is that the injustices of the past and their impact on the present provide powerful grounds for addressing racial inequality in public policy. Yet others, even some who support policies to reduce racial inequality, find the language of reparations unhelpful, or downright counterproductive. In this chapter I argue black reparations are demanded by justice, but that to appreciate the case for reparations requires putting it in its proper theoretical context.

Columbia Journal of Race and Law on Derrick Bell

Thanks to a pointer from Taja-Nia Y. Henderson, I see that the Columbia Journal of Race and Law has a new issue out devoted to Derrick Bell.  The papers were delivered at a symposium last fall organized by Penelope Andrews and Kendall Thomas.  The journal is inviting responses to each of these pieces.  I wrote some about Derrick Bell as a legal historian back at the beginning of the year and some about the Columbia Journal of Race and Law and Ralph Ellison a couple years ago.  And as long as I'm talking about Derrick Bell I suppose I should mention the paper that Stacey Gahagan and I have up on ssrn that draws some distinctions between Bell and Professor Obama, though it also shows some similarities between Obama's race and law course at the University of Chicago and critical race theory.

The Elusive Quest for Equality and the Permanence of Racism

“The Post Racial Era: Race, Silence, the Denial of Race/Racism and Optimism,” –Leonard Baynes, St. John’s University School of Law

“Notes Toward a Critical Contemplation of the Law,” –Sonia Katyal, Fordham University School of Law

“Derrick Bell’s ‘Afrolantica’ and Gentrification in Harlem,” –Twila Perry, Rutgers University School of Law

Derrick Bell as Teacher

“How Derrick Bell Helped Me Decide to Become an Educator, Not Just a Faculty Member,” –Vanessa Merton, Pace University School of Law

“Derrick Bell’s Community-Based Classroom,” –Joy Radice, University of Tennessee College of Law

“ ‘A Living Working Faith’: Remembering Our Colleague Derrick A. Bell, Jr. as Teacher,” –Andrea McArdle, CUNY School of Law

“A Legacy of Teaching,” –Robin Lenhardt, Fordham University School of Law

“Derrick Bell’s Children,” –I. Bennett Capers, Brooklyn Law School

Interest Convergence

“From Interest Convergence to Solidarity,” –Julie Suk, Cardozo School of Law, Yeshiva University

“A Multiplicity of Interests,” –Rachel Godsil, Seton Hall University School of Law

“Racial Fortuity, Rights Sacrifice, and the Promise of Convergence in Prison and Policing Policy,” –Taja-Nia Henderson, Rutgers School of Law – Newark

 

Syllabus Studies: Obama's Current Issues in Racism and Law Syllabus

As the sands of time drip from the summer hourglass, I am rushing to finish up a bunch of projects.  My essay on David Rabban's Law's History is almost in draft form; and some other big projects are all sprinting towards the finish line.  But right now I want to talk about a paper that Stacey Gahagan and I have been working on for a while now: a paper that we call "Reading Professor Obama."  The title is a riff on James Kloppenberg's fabulous intellectual history of Obama, Obama Reading: Dreams, Hope, and the American Political Tradition, which reconstructs the Obama's intellectual culture from college through the presidency.

What we have done is gone back and looked at the syllabus for his 1994 course on "Current Issues on Racism and the Law" at the University of Chicago.  This got some attention back in 2008 when the New York Times first posted on it and then ran commentary by a number of distinguished law professors -- like Pam Karlen, Akhil Amar, and Randy Barnett.  (I blogged about it back in August 2008.)

We contribute two things to the discussion that I think are important.  First, we went back and tried as best we could to see just exactly what he assigned -- often it was a little unclear what pieces of articles and books he was assigning, but we made an educated guess about this.  And then we read that work to see what kind of ideas students would likely take away.  In contrast to those who link Obama closely to Derrick Bell -- and in spite of the fact that Obama assigned a lot of excerpts from Bell's Race, Racism, and American Law casebook -- Obama's readings from people like Anthony Appiah and George Fredrickson reveal that he likely departed from Bell's ideas about the permanence of racial classifications and of racism.  Moreover, his concluding assignment was Cornell West's essay written in the wake of the 1992 LA Riot.  The essay's final sentences -- and therefore the last words that Obama assigned -- are “Let us hope and pray that the vast intelligence, imagination, humor and courage in this country will not fail us. Either we learn a new language of empathy and compassion, or the fire this time will consume us all.”

Our second insight -- really Stacey deserves the credit for this -- was to look pretty closely at the class presentation topics that Obama suggested for the students.  For after the first four classes, groups of students made presentations on topics of their choice, though Obama provided twelve broad categories for them to choose from, including "the all-black, all male school," "racial gerrymandering," "welfare policy and reproductive freedom" and "reparations."  We looked closely at the topics and the questions Obama posed for the students on each one.  Stacey linked those questions to the burgeoning critical race theory (CRT) literature in the early 1990s.  This suggests that Obama was deeply interested in issues that were in discussion in CRT circles.  Now, one might think -- in fact, I think -- that no matter one's orientation towards CRT, a course on "current issues in racism and the law" should address a lot of these same issues.  Still, reading this syllabus makes me think that Obama had a closer affinity for CRT than one might expect given his usual and well-known posture of refusing to take sides on controversial issues.

I don't think this changes in significant ways how we think about Professor Obama, but I think that it suggests he was further from Derrick Bell's ideas than many have appreciated, while perhaps more sympathetic to key CRT ideas than we appreciated.  This distance from Bell is particularly important given the discussion last spring about the "rediscovered" tape of Obama introducing Bell.  

Anyway, the paper's up on ssrn and we'd be most interested in your thoughts.  And we'd be most, most interested in the thoughts of people who took that course -- especially if any of you still have the readings packet.

Laplante on 'Negotiating Reparations Rights'

Lisa J. Laplante of the University of Connecticut School of Law has a new paper, "Negotiating Reparation Rights: The Participatory and Symbolic Quotients," up on ssrn.  Laplant's important article reminds me yet again how much new and excellent work is being done on reparations -- a topic that was almost abandoned by legal scholars there for a few years.  Laplante's interested in several problems -- beginning with the sad fact that there are insufficient funds to repair for past gross injustices.  Her laboratory is Peru, which emerging from an oppressive regime.  She focuses on two issues -- the right of victims to participate in the new government and also to receive something in the way of symbolic reparations.  (I'm rather skeptical of rights of participation -- I seem them as the democracy version of transparency -- necessary but far from sufficient; and also often rather over-rated as focal points of relief.)  Yet, these are important starting points; and one must recognize that they may be all that's available -- if they are even available.

Wartime Art Repatriation Symposium at Case

On Friday, March 1, 2013 the Journal of Law, Technology, & the Internet at Case Western will host a symposium on "Wartime Art Repatriation."  Cribbing now from Case Western's announcement:

Art theft during wartime has existed since ancient times.  As modern society presses onward, victimized countries are beginning to demand the return of pieces stolen from them at times of war.  However, museums throughout the world have integrated these piecs of art into their collections, often as the cornerstone of an exhibit or collection that draws thousands of visitors every year.  Can museums be required to return such artowrk, when they acquired the pieces through legal means?  What role does law play in wartime art repatriation?

This is, I think, further evidence of a resurgence in academic interest in reparations.

Title 38 Section 2306

File this post under the heading "Reparations for the Era of Civil War." 

Recently I had the chance to visit the Oakwood Cemetery in Richmond.  It's one of the largest Confederate cemeteries; there are something on the order of 17,000 soldiers buried there.  It's a pretty interesting place, in part because the people buried there are almost all enlisted men -- the officers were apparently buried in Hollywood Cemetery and Shockoe Hill Cemetery.  There is also relatively little in the way of monuments there, which I guess goes to show that in death, as in life, the little people are often forgotten.  I guess I'm not surprised by this.  There's a pretty modest obelisk put up around 1866 and also a granite monument put up in 2007 by the Sons of Confederate Veterans.  But not a lot in between. There are a number of very small, foot- stones that dot the Confederate part of the cemetery; it's a quiet and I would add dignified, space.  It reminds me a lot of the National cemeteries around Richmond that have U.S. soldiers buried in them.  

Old friends may recall a blog post I wrote years ago on the money that the Virginia legislature gives to cemeteries with Confederate soldiers buried in them -- I think it's $5 per year per person.  What I did not realize until recently is that the United States Veterans administration is also charged with providing some monuments for Confederate cemeteries.   Title 38, section 2036(a) provides as follows:

The Secretary shall furnish, when requested, appropriate Government headstones or markers at the expense of the United States for the unmarked graves of the following:

(1) Any individual buried in a national cemetery or in a post cemetery.

(2) Any individual eligible for burial in a national cemetery (but not buried there), except for those persons or classes of persons enumerated in section 2402(a)(4), (5), and (6) of this title.

(3) Soldiers of the Union and Confederate Armies of the Civil War.

(4) Any individual described in section 2402(a)(5) of this title who is buried in a veterans’ cemetery owned by a State.

(5) Any individual who at the time of death was entitled to retired pay under chapter 1223 of title  10 or would have been entitled to retired pay under that chapter but for the fact that the person was under 60 years of age.

Now the Sons of the Confederate Veterans are hoping to get the  Veterans Administration to do more in terms of monuments.  I  think tha the cemetery is better off as it is without more monuments marring the landscape; but I'd also add -- as I guess is clear from my scholarship -- I'm not a huge fan of spending more federal government money to commemorate the Confederacy.   Thus, I'm not enthusiastic about the Veterans Administration doing more with Oakwood -- for both aesthetic and moral reasons.  If private individuals want to put up a new monument, as the United Daughters of the Confederacy seem to be doing at Oakwood, that's obviously something they have the right to do. 

Nguyen on Apologies: The Case of Intellectual Property in China

One of the things I'd planned to do this summer is talk about scholarship I've been enjoying -- or at least flag it here in the lounge.  I haven't done much of that yet, so let me start with SMU Law Professor Xuan-Thao Nguyen's "Apologies as Intellectual Property Remedies: Lessons from China," which appeared recently in the Connecticut Law Review.  Here is the abstract:

It is a frequent refrain that “the world is shrinking.” In this same vein, the global influence of China is clearly rising. Chinese businesses are becoming more prominent in the global market, and as such, the influence and effect of Chinese law is likewise gaining in import. Chinese intellectual property law is no different.

One notable aspect of Chinese intellectual property law is the availability of apology as a remedy. Despite a culture that places a high value on apology, and considerable legal scholarship and precedent regarding apology as remedy, many in the United States scoff at the notion of introducing apology as a remedy in U.S. intellectual property law. There are, however, limits to the effectiveness of injunctions and damages (currently the predominant remedies in U.S. intellectual property law), and tangible benefits to apology. This Article uses Chinese intellectual property law as an example and addresses the limits of the current U.S. intellectual property regime, as well as the potential benefits of a change. The Article concludes that it is time for the United States to learn from beyond its boundaries in order to provide just recourse in intellectual property disputes.

Download the paper from ssrn here.  Close readers of the faculty lounge may intuit that I'm returning to my interest in apologies, reparations, and transitional justice.

Latest on the North Carolina Sterilization Victims Compensation Act

Thanks to Mark Bold I see that the House has just passed an act to compensation people sterilized under the authority of the North Carolina Eugenics Board.  Today's Reuters story quotes Republican Representative Paul Stam, the North Carolina House majority leader:

Whoever they are, they deserve compensation .... We owe it to them, not in a legal sense, but in a moral sense. It was a sad program that lasted for several decades and had its genesis in a philosophy that is alien to the American spirit.

Representative Tom Tillis focused on the state's role in making the case for payments: "We had elected officials and leaders who had the audacity to know what the great race was .... There are people living today, all around this community, who have had this done to them and we have a chance to put it at rest."

Next stop is the Senate.  As the Senate takes this up, I hope they will focus on a couple of key points -- that this was state action, done in most cases for the convenience of the state, so the state could save money; that many people at the time knew this was wrong, even though the dominant mindset in the state was that sterilization was for the improvement of the human race -- and in some cases the white race; and that compensation is only going to people who are still alive, so it goes to the most direct victims.  As to opposition at the time, here is a chapter from a book on sterilization in North Carolina published in 1950 that discusses the opposition to sterilization, particularly by people who're its likely victims.

If you'd like a brief sense of the sterilization mindset in North Carolina, here is a pamphlet published by the Eugenics Board, which details the case for sterilization and also contains the administrative forms at the end of the pamphlet, which show just how much this was turned into routine bureaucratic work.

My previous posts on North Carolina's history with sterilization and the movement for compensation are available here.

Greensboro Massacre

I was talking recently with my friend Jayne Thompson, who's writing a novel that touches on the November 3, 1979, Greensboro massacre.  That inspired a trip out to Greensboro to visit the site of the massacre and, a few blocks away, the cemetery where four of the five people who were killed are buried.

The massacre was a day before the Iran Hostage crisis began, so I think that goes a long way to explain why you've probably never heard of it.  The short version is that Klansmen showed up at an anti-Klan rally (run largely by the Communist Workers Party) in an African American neighborhood in Greensboro known as Morningside Homes and started killing demonstrators.  Even though there is extensive video evidence, no one was ever convicted in either the state or federal prosecutions that followed.  More recently the Greensboro truth and reconciliation commission revisited those events and their aftermath.

I am interested in the motivations, politics, and possibilities of TRCs, though I am also skeptical of them.  Someone commenting about Greensboro a few years back said something like, it's the usual crowd coming together -- Nuns, Reconstruction Rabbis, Unitarian and UCC ministers, some Quakers, and social workers.  (And one might add community activists and perhaps even a law professor or two.)  My sense from a distance is that the people on the TRC did a very good job of gathering the evidence and shifting through what happened and of making some serious efforts towards reconciliation.  There was -- quite unsurprisingly -- little engagement from the crowd who committed the attrocities, though at least one of them expressed remorse.  If you're interested in this, Lisa Magarrel and Joya Wesley wrote a very good book on the Greensboro TRC, which I think has the potential to get other communities to follow in the wake of Greensboro.

Yet -- and this is what's motivating this post -- I'm not sure that we have even the most basic issue for a TRC: truth.  For as I was trying to figure out where the massacre occured so I could go visit it, I turned to my usual starting point for research: wikipedia.  The wikipedia entry for the Greensboro massacre makes it almost sound like the demonstrators were to blame for starting the violence that day.  Nor does it portray in detail the complicity of the city.  What for me is perhaps the most harrowering of many disturbing stories, though, is the breakdown of the rule of law in the aftermath of the massacre.  The local prosecutor seems to have suffered from a lack of resolve in the prosecutions, though I have no sense that mattered to the outcome of the trial.  So I am bothered that even now we do not have an accurate public history of the massacre.  I hope to return to several issues here down the road, including the case for making a moral claim on the city by the victims' family members, perhaps even now; the difficulty of telling an accurate history of racial crimes; and whether anything else should or could be done now.

The photo is the tombstone in Greensboro's Maplewood Cemetery.  If you're interested in visiting the site of the massacre or the cemetery, here is UNC-G's tour.  (But note that you go RIGHT, not left, at the first intersection in the cemetery to get to the tombstone.)

The Administrative Forms for Sterilization

Well, the hearing on the bill to provide compensation to sterilization victims went well.  Several survivors and family members spoke, as well as several middle school students.   As I was driving back with a couple of law students we remarked those students and their teacher really had their act together!

The committee had a thoughtful debate about the bill.  The anti-reparations arguments rested largely on this isn't the responsibility of the current generation (and also to some extent, a lot of other states did this, so North Carolina shouldn't be singled out).  That was countered by the argument that are people still living who are suffering as a result of the state's action.  I wasn't surprised by any of the arguments; but I was pleasantly surprised by the outcome.

The house judiciary committee passed the bill, so it's on its way.  Looks like this is actually going to make it -- and will be just another episode of realistic reparations.

Along the lines of the "this was done by the state" argument, I thought you might find the forms that the state prepared to facilitate the petitions for sterilization of particular interest.   The forms were reprinted in a lot of places, including a 1938 pamphlet from the Eugenics Board that made the case for sterilization.  It never ceases to surprise me how technology is harnessed to effect the ends of the state.  And how much those forms were designed to stream-line the process.  And perhaps you'd find also of interest the appendix to Moya Woodside's 1950 study of sterilization in North Carolina, Sterilization in North Carolina: A Sociological and Psychological Study, which tells the story of "illustrative cases" of people who were sterilized in the 1940s.

The illustration is the Judiciary Committee hearing, where Representative Larry Womble, who's been the champion of this issue for about a decade now, moved the bill.  This was his first appearance in the legislature, I think, since he was in a car accident last fall.