The Faculty Lounge

Reparations Request for Proposals

Burlington, Vermont has established a Task Force on Reparations, the first such municipal task force in the country.  We have put out a request for proposals from academics who are interested in conducting research and reporting to the task force on this topic.  This is a funded research opportunity.  The RFP is available on the link below (you have to scroll down a bit to find the Reparations RFP).  The deadline for submissions is December 31, 2020.

https://www.burlingtonvt.gov/rfp

Interested parties with questions are welcome to contact Rebecca Zietlow of the University of Toledo College of Law, a member of the Task Force, at [email protected].

The 1968 Fair Housing Act

Earlier this month marked the 50^thanniversary of the passage of the 1968 Fair Housing Act. On March 1, 1968, the Kerner Commission issued its report to Congress on race relations in the United States, warning that “America is dividing into two societies, black and white, separate and unequal.”  According to the Kerner Commission, one of the chief manifestations of this inequality was residential segregation, which relegated Blacks to crowded urban ghettoes. Congress responded to the Kerner Commission report with the 1968 Act, an attempt to reduce residential segregation and provide access to economic opportunities for people of color.  Despite the urgency of the report, the Act stalled in Congress until the assassination of Martin Luther King, Jr. sparked nationwide riots in inner cities. The Fair Housing Act is far-reaching.  Among other provisions, it requires the federal government to engage in affirmative action to integrate federally owned and subsidized housing.  Unfortunately, the Act’s anniversary passed with little fanfare.

Two provisions of the 1968 Fair Housing Act were based on Congress’ power to enforce the 13^thAmendment.  The first, the “Anti-Blockbusting Provision,” prohibits realtors from using race-based rumors to scare people into selling their homes at a reduced rate.  The second, the 1968 Hate Crimes Act, makes it a crime for a person to interfere in certain “federally protected activities,” including economic activities, on the basis of their race.  According to New York Senator Charles Goodell, “the 13th amendment to the Constitution forever barred slavery and involuntary servitude in the United States.  It was viewed by those who had approved it as abolishing not just enforced service of one person for another but as a guarantee to all citizens, of the outlawing of all the badges and incidents of slavery.  One hundred and three years after its adoption the Congress has yet to remove all the disabilities of that servitude.”  Like the 1866 Civil Rights Act before it, the 1968 Fair Housing Act addressed the badges and incidents of slavery.

Given the significance of the Fair Housing Act, it’s surprising how little acclaim the Act received on its April 11 anniversary.  On the other hand, the 1968 Fair Housing Act was controversial when it was enacted, and its wide-reaching mandate is largely unenforced.  According to one of the act’s sponsors, Walter Mondale, “The public servants tasked with implementing it have often forgotten — or refused to pursue — its ultimate goal of building an integrated society.”  Mondale points out that federal officials balked at enforcing the Act’s integration mandate until the Obama administration.  Now, the current Secretary of Housing and Urban Development, Ben Carson, referred to those Obama era regulations as “mandated social engineering.” 

Rather than celebrate the Act’s anniversary, Secretary Carson seems intent on undermining it.  For example, Secretary Carson recently removed anti-discrimination language from HUD’s mission statement.  As advocates for civil rights struggle to maintain hard won gains from the past 50 years, comprehensive measures like he 1968 Fair Housing Act seem sadly anachronistic.  However, 50 years after the Kerner commission report, little has improved.  Blacks experience unemployment at twice the rate as whites, and according to a recent study, our cities and schools are re-segregating.  Try as we might to ignore and deny it, people of color in our country are still suffering from the badges and incidents of slavery.

Jeju 4.3 Conference at UNC, May 22

I'm pleased to report that UNC Law School will be hosting a one day conference on the April 3, 1948 Jeju massacre (also known as the uprising).  This is part of an on-going, international effort to bring attention to the violence on Jeju island that ran from April 1948 through May 1949 in which thousands of residents of the island were killed as part of anti-communist suppression.  The efforts have led to extensive discussion in Korea, Japan, and more recently the United States about the massacre and the role of both the Korean government and to a lesser extent the United States' military in suppressing the uprising.  And since 2000 there has been the Jeju 4.3 Committee, which has led efforts at documenting the history, memorializing it, and repair -- what we often call transitional justice.  As part of this on-going effort, we will be hosting a meeting of scholars of Jeju 4.3, victims and their families, and scholars of transitional justice on May 22.  Here is the schedule:

Welcoming remarks by Ko Chang Hoon, Jeju National University, Republic of Korea; Yun Kuung Yang and Sang-soo Hur, Jeju People Association; Ho-jin Kang, Juju Residents Association for Autonomy; Oui-soon Park, Jeju Residents Solidarity for Authonomy.

Part 1: Recognition, Responsibility, Reparations and Asian Democracy in relation to Taiwan 2.28 Massacre, Jeju 4.3 Grand Tragedy, and Other Cases 9-10:45

Moderator Al Brophy, UNC Law School

Jeh-Hang Lai, Professor Emeritus National Central University Taiwan, R.O.C., The 2.28 Uprising as a Turning Point in Taiwan Political History

Hope Elizabeth May, Central Michigan University, Recognition and Responsibility: The Moral Relevance of Pre-UN history to the Jeju Tragedy

Chang Hoon Ko, Professor Emeritus of JNU, Chair of World Association for Island Studies, South Korea, Jeju World Peace Island Treaty JWPA: From Darkness of Jeju 4.3 Grand Tragedy to Brightness of Jeju World Peace Island Vision, 1947-2017

Discussant: Sung-bin Koh, Professor, JNU, South Korea

Part 2: Theoretical Issues of Reparations and Reconciliation in Relation to Jeju 4.3, 11-12

Moderator Kunihiko Yoshida, Hokkaido University, Japan

Al Brophy, University of North Carolina Law School, Memorialization of Reconstruction: The Case of Ku Klux Klan Violence in 1870s North Carolina

Carlton Waterhouse, Robert H. McKinney School of Law, Indiana University, Slavery Reparations and Social Dominance Theory  

Kaimi Wenger, Thomas Jefferson Law School, Micro-Reparations

Discussant: Professor Roy Tamashiro, Webster University, USA

Buffet Lunch at UNC Law School, 12-1:15

Part 3:  Genocide Cases and Ways of Reparations 1:15-2:15

Moderator: Carlton Waterhouse, Robert H. Mckinney School of Law, Indiana University

Speakers: Kunihiko Yoshida, Hokkaido University, Japan, Taxonomies of Reparations Compared to Other Asian cases

Timothy Webster, Case Western University Law School, World War II Litigation in East Asia: Individual Litigation and Group Disappointment

Robert Westley, Tulane University Law School, Building a Norm of Redress Through Reparations Activism

Part 4: Social Healing Through Jeju Peace Academy, Communication and Dark Tourism, 3-3:45

Moderator: Hope Elizabeth May, Central Michigan University, Social Healing Through Jeju World Peace Academy

Roy Tamashiro, Webster University, USA, Jeju 4.3: Planetary Consciousness and Psychosocial Processes for Social Healing and Reconciliation

Dr. Ae-Duck Im, Chang Hoon Ko, (JNU) and Rachel Brooks (Fulbright English teacher September 2014- August 2016, USA) South Korea, Social Healing Through Generational Communication

Part 5: Final Discussions 4-5

Audience

If you are interested in attending, please let me (Al Brophy, [email protected]) know.  I have some information on discounted housing that might be of use; also, I want to have a good count of the people who will be attending.

I will take advantage of the location here in Chapel Hill to talk about a key moment of transitional justice in the United States -- the movement away from slavery and towards freedom in the wake of Civil War and how that was undone simultaneously through violence and appeals to the "rule of law" here in Orange County and in surrounding counties.  This is a piece of a project I've been working on regarding the memorialization of Saunders Hall on the UNC campus.  I've been working on this project for a while and am excited to have the chance to talk about this work that links a micro history of William Saunders and the Klan to larger themes in what "rule of law" meant in the United States during the difficult times of Reconstruction and its end (what was once known as the period of "redemption").

The image, of a statute in the Jeju Peace Park, is from the Emanuel Pastreich's post on Circles and Squares blog.

Building Renaming Discussion: University of Alabama Edition

Tonight I'm going to be part of a discussion about building renaming on the University of Alabama campus.  If you're around Tuscaloosa, I hope you'll stop by Gorgas Library at 6:30. The discussion is focused around Nott Hall, though the issues are certainly relevant to a lot of campus buildings, including Manly Hall and Morgan Hall.  I'll be cribbing my usual comments on the law and morality of building renaming, with a few thoughts that are drawn from the University of Alabama's pre-War intellectual history.

Reparations and the Sanders Campaign

Ta-Nehisi Coates is taking Senator Sanders to task for not supporting reparations. I must confess that I found Sanders' reasons for not supporting reparations sound remarkably like what a lot of people who're against them say: they're politically impractical (he says, largely correctly I suspect, that their chances in Congress are "nil") and that they're divisive. But then again, it's not all that different from what then Professor Obama asked about reparations back around 1994:

Given the perceived failures of the traditional civil rights agenda in bringing about racial equality in the U.S., a number of black commentators argue that a program of reparations is the only legitimate means of making up for three hundred plus years of slavery. More recently, some white commentators have also supported a variant of the reparations concept—for example, the government financing a Community Reinvestment funds that would be controlled by the black community and render affirmative action obsolete. Do such proposals have any realistic chance of working their way through the political system? Would there be any legal impediments to such a broadly-conceived reparations policy?

Coates' point is that he expects more from Sanders, who's running as a radical challenger of the status quo.  Certainly Sanders' statement seems quite moderate.

This makes me wonder if once Donald Trump gets the Republican nomination and he decides to run to the left of Hilary Clinton (because, hey, why not -- he wants to be president -- and consistency isn't an issue for Trump), will he come out in favor of reparations?

And a second question: would Sanders have been better off if he'd said something like:

My nation's journey toward justice has not been easy and it is not over. The racial bigotry fed by slavery did not end with slavery or with segregation. And many of the issues that still trouble America have roots in the bitter experience of other times. But however long the journey, our destination is set: liberty and justice for all. ...

We know that these challenges can be overcome, because history moves in the direction of justice. The evils of slavery were accepted and unchanged for centuries. Yet, eventually, the human heart would not abide them. There is a voice of conscience and hope in every man and woman that will not be silenced -- what Martin Luther King called a certain kind of fire that no water could put out. That flame could not be extinguished at the Birmingham jail. It could not be stamped out at Robben Island Prison. It was seen in the darkness here at Goree Island, where no chain could bind the soul. This untamed fire of justice continues to burn in the affairs of man, and it lights the way before us.

All of this is further evidence of the point I've been pushing for some time that discussion of reparations is not going away.

Ask Me Anything (about the high school debate topic)

One of my goals, going back decades now to my high school years, was to write something that high school debaters would use.  Thinking back on it now, that may not have been such an ambitious or even worthy goal. I mean who wants to be cited alongside William Offals' Ecology and the Politics of Scarcity for the proposition that there should be government-imposed controls on reproduction? We've been there before and think that really morally problematic.  (For those of you who're interested in this, internet archive has the full text of Offals' 1992 revisiting of the book.)  Still, I am delighted to say that during September and October the public forum debate topic is reparations to African Americans.   Now I am going to be trying a new form of communication.  I'm going onto a reddit forum on high school debate for an "ask me anything" session with forum members on September 24 at 6 pm.  We'll see what turns up!

I have very fond memories of my time in high school and college debate.  That gave me my first experience with legal research -- I remember using a note in the California Law Review on police use of deadly force in riots.  (Whose author, Barbara Rhine, I now realize is a famous civil rights attorney in the Bay area.)  

One of the things that was very popular thirty plus years ago -- and seems still to be a big part of high school debate -- is the argument that civil rights reforms will lead to a backlash by voters that makes everything worse.  While some of the most respected scholarship on the legal history of civil rights focuses in important parts on a backlash of white voters to the civil rights movement, I am not sure that's the best argument to use about the case for reparations for the eras of slavery and Jim Crow.  Debaters who employ backlash seem to be accepting the moral claim for reparations and then trying to defeat a reparations plan with speculation about effects down the road.  First, I'd say that there's more to be said about the moral claim -- while I'm an ardent believer in the moral case for reparations, I recognize that there are serious questions about why the current generation should pay.  And I'd think those are worth exploring in a reparations debate -- more so, anyway that the questionable issue of whether payments will lead to voter backlash.

I think it makes sense for debates to turn on core values of the extent of state culpability and the state's obligations to citizens and that such debates can be much more productive than speculation about backlash and the ultimate effects of backlash.  But as I say, I'm really excited to see what debaters are thinking about and in particular what's working at the tournaments.

Thinking back on this some, I guess my high school experience may explain some of my continuing interest in oratory and in pre-Civil War college debates about constitutional law.

Update: Here is the thread.  It's pretty interesting to see what's working on both pro and con -- and I'm especially intrigued by the prevalence of the "backlash" argument and, relatedly, how much there's a focus on the effects of reparations on discussion of racial equality (a form of cultural backlash).  I'm also going to be presenting a webinar for what was called the National Forensics League back when I was in high school -- and is now National Speech and Debate Association on Monday at 5 eastern time (4 central).  Here's a link in case you're interested in seeing what I had to say.

The Legal Theory of #blacklivesmatter

One of the topics that deeply interests me is how social movements translate their agendas into legal doctrine.  How, for instance, do claims for reparations interact with legal doctrine -- what are the hurdles they face and how can they overcome those hurdles?  How did abolitionists advance an alternative jurisprudence of sentiment -- and also an empirically based legal theory -- to respond to proslavery law at the appellate and trial level?  How did the victims of the Tulsa riot, who were so shamefully and laughably abandoned by the legal system yet turn to it to ask for justice?  How did people like Charles Hamilton Houston and Karl Llewellyn convert the facts surrounding the brutality of Jim Crow into a movement -- such as the federal prosecution of lynchers? The road from protest over Jim Crow in the streets to triumph in the Supreme Court was a long one, to be sure.  It took a long time to move from the "great constitutional dream book" to Brown.  We needed those dreamers, from the veterans of World War I to W.E.B. DuBois, the people who nearly a century ago said in essence "black lives matter" and then plotted a political and legal strategy to get us there.  And just recently I finished reading an outstanding manuscript on the way that the Nullification movement influenced John Marshall to allow states extensive power in regulating private property.  All this has me thinking about the relationship of social and political movements to legal doctrine.

So naturally I'm interested in how #blacklivesmatter is going to translate its momentum in the legal arena.  Some pieces of this are straight-forward.  The demands of blacklivesmatter.com include more aggressive prosecution of those who kill African Americans and less aggressive policing of African American communities and of African American individuals.  A lot of this is aimed more at Congress, state legislatures, and local governments than at prosecutors and courts.

But I suspect we can sketch what a #blacklivesmatter jurisprudence would look like, too.  On the civil side I think it would involve relaxing the standards for a successful section 1983 suit.  I'm guessing that would cover a lot of the ground.  And on the criminal law side, I suspect that a lot of the agenda would relate to reduction in sentencing and to changes in criminal procedure that would restrict the fruit of searches and perhaps limit the opportunities for stops and arrests.  My friends who work in criminal law and procedure know infinitely more about the specifics than I do.  What really interests me here is to wonder about what the world might look like, in part because I'm guessing that this will be relevant to the 2016 presidential campaign.  And how that campaign plays out will shape the responses of judges and prosecutors (and of course have an important impact on the kinds of people who become federal judges and federal prosecutors).

The image is of a protest at UNC Law last January, courtesy of my colleague Tamar Birckhead.

Yamamoto et al on Jeju

Eric Yamamoto, Miyoko Pettit, and Sara Lee have posted on ssrn an extensive paper on the Jeju massacre, in which perhaps as many as 30,000 South Korean citizens were killed.  Their paper is called "Unfinished Business: A Joint South Korea and United States Jeju 4.3 Tragedy Task Force to Further Implement Recommendations and Foster Comprehensive and Enduring Social Healing Through Justice."  This is yet another sign that literature on reparations is making a comeback and is increasing in sophistication.

Pamela Bridgewater (1969-2014)

I am so sorry to report that Pam Bridgewater has passed away, at far too young an age. Pam taught for many years at American University's law school and she was a scholar of reparations. I first met her probably a dozen or maybe thirteen years ago when I heard her present a paper on slavery and reparations. The paper felt very fresh and innovative. It later appeared as Ain't I a Slave: Slavery, Reproductive Abuse, and Reparations in the UCLA Women's Law Journal. As soon as I get somewhere where I can reflect a little more on Pam's work I will post more about it. Here is a lovely memorial.

H/t Imani Perry.

Atuahene on Mandela

The following is a guest post by Bernadette Atuahene:

Today is the first anniversary of Nelson Mandela's death.  He became an international icon because he chose reconciliation and forgiveness over war and vengeance.  There is no doubt that Mandela was a great man and a great leader.  But, now that we have mourned, it is time to take a critical look at his legacy.  When we scratch beneath the surface, we find that the political bargain that he brokered to bring an end to apartheid while avoiding massive bloodletting and economic disintegration is now falling apart.

Due to massive colonial and apartheid era land theft, when apartheid ended in 1994, 87% of the land was owned by whites although they constituted less than 10% of the population.  The bargain allowed whites got to keep their land despite how it was acquired.  In exchange, blacks got the promise of land reform.  This year, South Africa celebrates 20 years of democracy and the state has transferred only about 10% of the land from whites back to blacks.  Whites have secure land rights while the promise made to blacks has gone unfulfilled.  Needless to say, many blacks are losing their patience.

In one of the most impressive public opinion studies on land reform in South Africa to date, Professor James Gibson surveyed 3,700 South Africans and found that 85 percent of black respondents believed that “most land in South Africa was taken unfairly by white settlers, and they therefore have no right to the land today.”  Gibson’s most troubling finding was that two of every three blacks agreed that “land must be returned to blacks in South Africa, no matter what the consequences are for the current owners and for political stability in the country.”  According to Gibson’s data, most blacks, whether they live in rural or urban areas, see the land as stolen and want it back even if redistribution will provoke political unrest.  That is, land injustice has become a sea of oil waiting for a match.

The Economic Freedom Fighters (EFF) are that match.  EFF is a newly formed South African political party led by former African National Congress (ANC) youth league president, Julius Malema.  The party’s foundational principle is “expropriation of South Africa’s land without compensation for equal redistribution in use.”  After only a few months of campaigning, EFF won 6.3% of the vote in the national elections this past May, superseded only by the 22% won by the main opposition party—the Democratic Alliance (DA).  To be sure, the ANC secured a safe majority by winning 62% of the vote, but the EFF’s success serves as a reminder of the consequences of its failed land reform program.

Black South Africans can only be expected to be so patient.  If legal channels for correcting past land theft are not working, then they may resort to illegal or extreme measures to get their land back.  Although Mandela has died, we cannot bury his dream of a free and fair South Africa along with him.

Atuahene is a professor of law at IIT, Chicago-Kent and Faculty Fellow at the American Bar Foundation.  She is most recently the author of We Want What’s Ours: Learning from South Africa’s Land Restitution Program (Oxford University Press, 2014).  More information is available at the website wewantwhatsours.com

Memorials in Times of Transition

I see that Susanne Buckley-Zistel of the Center for Conflict Studies and Stefanie Schaefer, a research fellow at the Irmgard Coninx Foundation, have the introduction to their book Memorials in Times of Transition up on ssrn.  Cribbing now from their abstract: 

Since the 1960-70s, we can see a worldwide upsurge of memorial projects that address the violent histories of recent wars, genocides and systematic human rights abuses. Such interventions often employ a common architectural language and are informed by a set of political and ethical claims in regard to what role commemoration can and/or should play aft er large-scale violence: providing public sites of mourning, putting past wrongs right, holding perpetrators accountable, vindicating the dignity of victims-survivors and contributing to reconciliation.

Dealing with the legacy of the past is subject to transitional justice. Conventionally, it incorporates a number of mechanisms such as truth commissions, tribunals, lustrations, reparations and more recently also memory work – including memorials – in order to deal with past injustices. It is based on the assumption that any form of transition from violence to peaceful coexistence requires the disclosure of past events and the establishment of some form of justice for the victims in particular and the society in general.

Despite this general reliance on memorialisation within transitional justice, practitioners as well as scholars often share a rather skeptical outlook on the allegedly beneficial impact of such interventions: ranging from fears that an open display of contested memories reignites dormant animosities to the defeatist beliefs that symbolic politics of far-away state institutions make little difference in war-torn communities. Overall, a comprehensive answer to this complex problem is amiss and will remain so unless analysis aims at a more nuanced understanding of the complex ways in which memorials are employed by and function within transitional society. With this volume, we seek to make a contribution towards closing this research gap.

Though the memorials put up in the wake of Civil War are earlier than their project, the issues they discuss have obvious parallels.  I've thought for a long time that the excellent work that's been done on transitional justice could be enriched by looking at the south in the wake of Civil War.  There were shattered lives struggling to be put back together -- the formerly enslaved people who had little resources and whose government often abandoned them, as well as members of the formerly ruling class whose wealth had been largely lost, who were struggling to regain political power.  The efforts at addressing past injustices was missing -- it was, to turn Eric Posner and Adrian Vermeule's phrase on its side, "transitional justice as ordinary injustice."  And running alongside all of this were efforts at memorialization by white southern women.  I've spoken before about my skepticism of the importance of public monuments to those who defended the slave-owning south.  But I do have to say that I think this is an area of work that deserves more attention  from legal scholars than it's received.  Soon I hope to turn to this, but first I need to finish my paper on Richmond's Washington Equine Statue and its relationship to slavery and the charitable corporation.

The illustration is a family cemetery at Appomattox.

Laplante on Just Repair

I've been talking a lot of late about the resurgence of literature on reparations.  And next week I hope to have a working draft of a paper on North Carolina's eugenics program and the legislature's compensation statute that I'm writing with Elizabeth Troutman.  One of the best developoments has been the literature that looks pretty seriously at designing a reparations program.  Lisa Laplante's new article, "Just Repair" is a prime example of this literature, which tries to assess what reparations might actually look like.  Here is Laplante's abstract:

“Just Repair” offers, for the first time, a theory of administrative reparation programs for redressing atrocities. Under this new theory, a government could satisfy its international obligation to guarantee just repair for victims who suffered a violation of their fundamental rights if it adopts a plural approach to designing its reparation policy. The Article responds to the challenges that governments face when trying to repair the harm suffered by hundreds, and sometimes thousands, of victims of political violence, repression and armed conflict. Governments often opt for an administrative solution when it is not feasible for every victim to use civil suits to litigate their claims. These administrative regimes often draw upon the concept of reparative justice, adopting a “legalistic” approach that calculates damages and awards lump sums or annuities. These payments technically fulfill the international obligation to protect the recognized right to reparation enjoyed by all victims of human rights violations. Yet recent scholarship questions whether administrative programs respond adequately and appropriately to the needs of victims, especially when governments implement reparation programming without consulting victims and thus fail to meet the victims’ expectations and demands. This misaligned policy results in victim dissatisfaction with, and even rejection of, reparation programs. Yet, in exposing this problem, few scholars offer a theoretical framework for a broader analysis of why this policy failure occurs. This Article responds by suggesting that the rift between theory and practice arises in part due to the lack of a coherent theoretical framework to explain the justice aims of reparations that can not only guide the planning and implementation of reparation programs but also third-party evaluations of these projects. Additionally, there is a still minimal international law guidance of what constitutes an effective, adequate and appropriate reparation program. Thus this Article presents a model of plural justice called the ‘justice continuum of repair’ that draws from classic legal and political theories to describe the overarching justice aims of reparations in transitional justice settings. This account better accommodates the multilayered justice aims held by victims, especially in light of the great diversity of human rights violations they suffer in addition to the variance in demographic characteristics like gender, class, age, location, among other factors. Their ‘postionality’ will influence what victims perceive to be necessary to feel repaired. This Article proposes that a government should adopt a participatory approach to planning and implementing their reparation programs to better accommodate and manage the multiple justice aims and expectations of victims, and thus help to enhance the effectiveness and legitimacy of a national reparation policy. Moreover, this framework will contribute to the development of evolving international standards for assuring fair and just reparation programs. Ultimately, a pluralist theory offers a more coherent understanding of the justice aims of reparation programs while still promoting the universalistic concept of the right of reparations.

Reparations Talk

Thanks to our co-blogger Kevin Maillard, the New York Times' Room for Debate is talking about the case for and against reparations for slavery and the decades of "Jim Crow" segregation that followed it.  There are a lot of discussants, including University of Pennsylvania history and law professor Mary Frances Berry and Michigan State Univeristy law professor Matthew Fletcher.  (My piece asks who should pay and why.)  As I've been saying for some time, talk of reparations has been making a come back -- and recently we've been hearing about the Caribbean countries' impending lawsuit against Great Britain and payments to victims of North Carolina's sterilization program, as well as for slavery and Jim Crow here in the US.  A lot of the talk in the US was set off by Ta-Nehisi Coates' powerful story in The Atlantic, "The Case for Reparations."  (And then there's David Frum's response, "The Impossibility of Reparations.")  We'll see where this all heads.

Saunders Hall

Since everyone else is talking about Saunders Hall on the UNC Campus I figured I should at least put up a picture of it.  I think I want to learn a little more about William Lawrence Saunders.  I spent some time between reading property exams yesterday reading his address at Trinity College on North Carolina history.  He was, perhaps, smart enough to keep the really offensive material out of that address.  In that regard, he was smarter than many.

There are a couple of things I want to know about this before I would support renaming.  First, I'd like to know more about Saunders' dark side; second, I'd like to know why he was honored with the building name in 1922, about thirty years after his death; third, I'd like to know who had a say in the naming.  Until then, I'm sticking with my default position that I'm against renaming, not the least because renaming facilitates forgetting.

But, really, why are people giving Thomas Ruffin (after whom Ruffin Hall is named) such a pass?  Not that I'm in favor of renaming Ruffin Hall.  But I would have thought that a more likely target than Saunders Hall.

Update: The May/June 2015 Carolina Alumni Review has an excellent article by David E. Brown about the Saunders Hall renaming.

Hippolyte on the CARICOM reparations case

Antonius Rickson Hippolyte  of the University of Hull has posted "Unearthing the Legitimacy of CARICOM's Reparations Bid" on ssrn.  Here is his abstract:

Fourteen Caribbean countries, coalescing under the CARICOM banner, are preparing to bring a class action suit for reparations for native genocide and slavery against the United Kingdom, France and the Netherlands in the International Court of Justice (ICJ). CARICOM, an international organization, with a common market at its core, at its 34th regular meeting of the Heads of Government created the CARICOM Reparations Committee, presided over by the prime minister of St. Vincent and the Grenadines, Ralph Gonsalves, with Barbados, Haiti, Guyana, Suriname, and Trinidad and Tobago providing political oversight. This claim arises from the reparation desires of Member States for the legacies of native genocide and slavery, in which almost an entire population of the regions natives peoples was wiped out by these European settlers and whereby millions of slaves were transported from Africa to work on plantations in the West Indies for the economic benefit of these Europeans. These dark sides of the European colonization of the West Indies may be classified as crimes against humanity, and international law provides from reparations for such atrocities, given the myriad historical examples of such reparations. However, in the 1830s when Britain ended slavery, the enslaved people freed, received nothing from the government in compensation for generations of forced labor, though there was money for slave-owners. These vile crimes continue to have lingering effects in the Caribbean today. CARICOM Heads-of-States are unanimous in their opinion that these two tragedies have contributed significantly to underdevelopment of the region. As such it is hoped that reparations will begin to right the wrongs of the past, namely some measure of economic compensation to supplement the economies of these countries and acknowledgement by these countries of the legacies of slavery. The general view is that reparations are valuable and there needs to be some European recognition of the legacies of slavery.

This is another sign that discussion of reparations is continuing.  As I have grown fond of saying, although reparations has been defeated politically in the United States, the moral claim continues.  It's something people have been asking for generations.  I have some thoughts about this in an essay review on Hillary Beckles' Britain's Black Debt in the journal Slavery and Abotlition.

Reparations Trivia Question

As I have been saying for some time now, the discussion of reparations in both domestic and international circles is returning.  This leads me to ask a second reparations trivia question.  What famous American politician said this:

My nation's journey toward justice has not been easy and it is not over. The racial bigotry fed by slavery did not end with slavery or with segregation. And many of the issues that still trouble America have roots in the bitter experience of other times. But however long the journey, our destination is set: liberty and justice for all. ...

We know that these challenges can be overcome, because history moves in the direction of justice. The evils of slavery were accepted and unchanged for centuries. Yet, eventually, the human heart would not abide them. There is a voice of conscience and hope in every man and woman that will not be silenced -- what Martin Luther King called a certain kind of fire that no water could put out. That flame could not be extinguished at the Birmingham jail. It could not be stamped out at Robben Island Prison. It was seen in the darkness here at Goree Island, where no chain could bind the soul. This untamed fire of justice continues to burn in the affairs of man, and it lights the way before us.

I'm guessing you're going to be surprised by the answer.  I'll give you a hint -- it wasn't the person I asked about in my first reparations trivia question.  However, the language is in some ways reminiscent of his ideas.

Alan Taylor Wins Pulitzer Prize in History

Congratulations to University of Virginia history professor Alan Taylor on the Pulitzer Prize in History for 2014 for his expansive volume, The Internal Enemy: Slavery and War in Virginia, 1772-1832.  The prize was announced yesterday.  Cribbing now from W.W. Norton's website:

This searing story of slavery and freedom in the Chesapeake by a Pulitzer Prize–winning historian reveals the pivot in the nation’s path between the founding and civil war.

Frederick Douglass recalled that slaves living along Chesapeake Bay longingly viewed sailing ships as "freedom’s swift-winged angels." In 1813 those angels appeared in the bay as British warships coming to punish the Americans for declaring war on the empire. Over many nights, hundreds of slaves paddled out to the warships seeking protection for their families from the ravages of slavery. The runaways pressured the British admirals into becoming liberators. As guides, pilots, sailors, and marines, the former slaves used their intimate knowledge of the countryside to transform the war. They enabled the British to escalate their onshore attacks and to capture and burn Washington, D.C. Tidewater masters had long dreaded their slaves as "an internal enemy." By mobilizing that enemy, the war ignited the deepest fears of Chesapeake slaveholders. It also alienated Virginians from a national government that had neglected their defense. Instead they turned south, their interests aligning more and more with their section. In 1820 Thomas Jefferson observed of sectionalism: "Like a firebell in the night [it] awakened and filled me with terror. I considered it at once the knell of the union." The notes of alarm in Jefferson's comment speak of the fear aroused by the recent crisis over slavery in his home state. His vision of a cataclysm to come proved prescient. Jefferson's startling observation registered a turn in the nation’s course, a pivot from the national purpose of the founding toward the threat of disunion. Drawn from new sources, Alan Taylor's riveting narrative re-creates the events that inspired black Virginians, haunted slaveholders, and set the nation on a new and dangerous course.

The book stretches from the days before the Revolution to the Nat Turner rebellion, but it is focused around the War of 1812 and the efforts of the British to undermine the United States by, among other things, offering freedom to enslaved people.  The book concludes with a story about the compensation that some of the owners eventually received in the 1820s for the losses of their slaves.  One plantation owner received something like $18,000 for the slaves who escaped his Virginia plantation.  He wrote his lawyer (I think it was William Wirt) to express his gratitude at how the money saved him from financial ruin and from the need to sell his remaining slaves.  This is yet another example of reparations for slavery in our history, just not the kind we usually think about these days.  That is, it's about reparations for slave-owners.  This also puts into some context the claims made by the slave-owners in Southampton, Virginia, who sought legislative compensation for the slaves killed as part of putting down the rebellion.  I have some more to say about this in the Nat Turner trials.

I hope to have some more to say about this shortly.  And I also hope that some important law journal will review this -- I think there's a lot here that's relevant to legal history.  The image is of the Monumental Church in Richmond, Va.  The fire that the church commemorates figures early in Taylor's book.

Preparation for Reparations

The European Institute at the University College London is soliciting papers for a workshop scheduled for March 2015 that aims "to explore what political theorists can contribute to ... preparation" for reparations claims.  They are looking for 1500 word essays by July 1 that will address one of three key questions:

1. What is in need of repair? (‘Problems’)
2. What is the case for repair / the reply to the case against repair? (‘Principles’)
3. What should repair look like? (‘Policies’)

Cribbing now from their webpage: 

This workshop is part of a longer-term, experimental project, aimed at the co-production of knowledge, by academics and activists who collaborate in their work on reparations. In this way, this workshop contributes to the recently established African Reparations Transnational Community of Practice (ARTCoP).  ARTCoP will help UCL develop its engagement with, and its accountability to, African heritage communities in London.  For this reason, a representative of UCL will provide ARTCoP with a monthly report on this project. This workshop is the first of three events helping to prepare this Community of Practice to engage with CARICOM’s claim for reparations from Europe.

The structure of this one-day-long MANCEPT workshop is to invite six ‘scholars’ and six ‘stakeholders’ to discuss the ideas of each participant and to air ideas about how, in future, we can work together. Following this MANCEPT workshop, if the participants are interested in continuing this work, they will be paired up to produce joint, or complementary, presentations, to be presented to the public, in December 2014, at a meeting funded by UCL’s European Institute. In March 2015, UCL’s Equiano Centre will host a one-day-long workshop, where the work—now revised in light of public scrutiny—can be presented to an academic audience, and where we can reflect critically on the process and methodology of the co-production of knowledge. We will seek to publish the results of this experimental process, in an online, open-source volume, with UCL Press.

More details are available at the webpage, "No reparation without preparation."

As long-time readers of faculty lounge may recall, I am interested in the resurgence of reparations claims and I think this is yet another sign that there is a great desire to talk about the moral case for reparations.  It's time, again, to reconsider reparations as well as some conceptual and legal problems in reparations.

Muhammad on Trans-Atlantic Slave Trade and Reparations

Patricia M. Muhammad, associate counsel at the City Board of School Commissioners, recently published "The Trans-Atlantic Slave Trade: A Legacy Establishing a case for International Reparations" in the Columbia Journal of Race and Law.  Cribbing now from her abstract:

This Article examines the legal principle of restitution (reparations) as applied to crimes against humanity that were committed as a result of the Trans-Atlantic Slave trade, as enumerated in international conventions and statutes. The Trans-Atlantic Slave trade’s peculiar attractiveness to Western nation-states that implemented the institution placed a long-term social, mental, and economic hindrance upon the displaced descendants of its victims. This Article also discusses possible legal theories upon which the atrocities of the Trans-Atlantic Slave Trade may be adjudicated in an international criminal tribunal, thus establishing a case for international reparations, as well as legal obstacles to such cases. The crimes committed throughout the history of the Trans-Atlantic Slave Trade warrant a legal remedy in the form of international reparations. The award of reparations serves as an introductory measure toward compensating the descendants of the victims of the slave trade, who continue to suffer under its vestiges and are still deprived of their basic civil liberties and human rights throughout the international community.

William and Mary Symposium on Race and Law in America

If you're in Williamsburg on Saturday I hope you'll take in the symposium on race and law in America at William and Mary's law school.  The speakers are Roy Brooks, Sheryll Cashin, Chris Bracey, Alex Johnson, Roger Clegg, and me.  I'm going to be on the first panel, talking about William and Mary's connections to slavery -- mostly about the ideas of Thomas R. Dew, who wrote an important defense of slavery in the wake of the Virginia legislature's spring 1832 debate on slavery.  (That debate was inspired by the Nat Turner rebellion.)  George Wythe, Beverley Tucker, Abel Upshur, and a couple of more obscure people are part of the story, too.  The Black Law Students Association has done a terrific job putting this together and I'm looking forward to the discussion!  (Previous coverage of W&M's Lemon Project, which is about their connections to slavery, is here, here, and here.)