The Faculty Lounge

UVA's Investigation of Its Connections to Slavery

Thanks to Bill Turnier I see that the University of Virginia has formed a commission to study its connections to slavery.  Wow there's a lot to talk about there -- and I'll be interested in all the directions this can go, from the subtly anti-slavery alumni like Henry Tutweiler and the oddly proslavery alumni like Edgar Allen Poe, to the zealously proslavery faculty like Albert Taylor Bledsoe -- and of course hovering over all of this is Jefferson himself and his legacy.  The range of ideas in Charlottesville over the University's pre-Civil War life rival those at William and Mary; they are narrower than those at UNC.   Ah, more talk of "God and Man [and enslaved people] at the University of Virginia."

Compensation for Victims of Virginia's Sterilization Program

Georgia State University law professor Paul Lombardo and Peter Hardin have an op-ed urging the Virginia legislature to compensate victims of the state's sterilization program.  Lombardo is the author of the very important book on Buck v. Bell, Three Generations, No Imbeciles.  He led the movement to have more recognition of Carrie Buck's life, including the historical marker in Charlottesville that is the illustration of this post.

Here's an excerpt from Hardin and Lombardo:

Today, legislators in Raleigh are to be applauded for voting to “pay for … mistakes” of the past. Since dead people don’t cash checks, the bill will not bust the state’s treasury: About 7,600 men, women and children as young as 10 were sterilized in North Carolina, yet fewer than 200 surviving victims have been identified by the state so far. That means each victim would receive a modest compensation of about $50,000. ...

There is a permanent stain on Virginia’s record. Yet North Carolina has shown how the cost of addressing an egregious justice on an individual level can be fiscally and politically achievable. Before it’s too late, Virginia must retake the moral high ground and compensate its surviving victims of eugenic sterilization.

Read the op-ed in theRichmond Times Dispatch here.

Update as of August 22:  Lombardo and Hardin also have an op-ed in USA Today about the national movement for reparations.

North Carolina Eugenics Compensation Act

Here is the North Carolina Eugenics Compensation Act.  It's codified in title 143b of the North Carolina General Statutes.  This will be administered by the Office of Justice for Sterilization Victims.

Part 30. Eugenics Asexualization and Sterilization Compensation Program.

§ 143B-426.50.  (For expiration date, see note) Definitions.

As used in this Part, the following definitions apply:

(1)        Claimant. - An individual on whose behalf a claim is made for compensation as a qualified recipient under this Part. An individual must be alive on June 30, 2013, in order to be a claimant.

(2)        Commission. - The North Carolina Industrial Commission.

(3)        Involuntarily. - In the case of:

a.         A minor child, either with or without the consent of the minor child's parent, guardian, or other person standing in loco parentis.

b.         An incompetent adult, with or without the consent of the incompetent adult's guardian or pursuant to a valid court order.

c.         A competent adult, without the adult's informed consent, with the presumption being that the adult gave informed consent.

(4)        Office. - The Office of Justice for Sterilization Victims.

(5)        Qualified recipient. - An individual who was asexualized involuntarily or sterilized involuntarily under the authority of the Eugenics Board of North Carolina in accordance with Chapter 224 of the Public Laws of 1933 or Chapter 221 of the Public Laws of 1937.  (2013-360, s. 6.18(a).)

 § 143B-426.51.  Compensation payments.

(a)        A claimant determined to be a qualified recipient under this Part shall receive lump-sum compensation in the amount determined by this subsection from funds appropriated to the Department of State Treasurer for these purposes. Except as provided by the succeeding sentence, the amount of compensation for each qualified recipient is the sum of ten million dollars ($10,000,000) divided by the total number of qualified recipients, and all such payments shall be made on June 30, 2015. The State Treasurer shall reduce the ten million dollars ($10,000,000) by holding out a pro-rata amount per claimant for any cases in which there has not been a final determination of the claim on June 30, 2015. Payments made to persons determined to be qualified claimants after that date shall be made upon such determination, and if after final adjudication of all claims there remains a balance from the funds held out, they shall be paid pro-rata to all qualified claimants.

(b)        If any claimant shall die during the pendency of a claim, or after being determined to be a qualified recipient, any payment shall be made to the estate of the decedent.

(c)        A qualified recipient may assign compensation received pursuant to subsection (a) of this section to a trust established for the benefit of the qualified recipient.  (2013-360, s. 6.18(a).)

§ 143B-426.52.  Claims for compensation for asexualization or sterilization.

(a)        An individual shall be entitled to compensation as provided for in this Part if a claim is submitted on behalf of that individual in accordance with this Part on or before June 30, 2014, and that individual is subsequently determined by a preponderance of the evidence to be a qualified recipient, except that any competent adult who gave consent is not a qualified recipient unless that individual can show by a preponderance of the evidence that the consent was not informed.

(b)        A claim under this section shall be submitted to the Office. The claim shall be in a form and supported by appropriate documentation and information, as required by the Commission. A claim may be submitted on behalf of a claimant by a person lawfully authorized to act on the individual's or the individual's estate's behalf.

(c)        The Commission shall determine the eligibility of a claimant to receive the compensation authorized by this Part in accordance with G.S. 143B-426.53. The Commission shall notify the claimant in writing of the Commission's determination regarding the claimant's eligibility.

(d)       The Commission shall adopt rules for the determination of eligibility and the processing of claims in accordance with G.S. 150B-21.1. Notwithstanding G.S. 150B-21.1(d), the rules adopted pursuant to this section shall expire on the earlier of the date all claims made under this section are finally adjudicated or June 30, 2018.  (2013-360, s. 6.18(a); 2013-410, s. 40.)

 

§ 143B-426.53.  Industrial Commission determination.

(a)        The Commission shall determine whether a claimant is eligible for compensation as a qualified recipient under this Part. The Commission shall have all powers and authority granted under Article 31 of Chapter 143 of the General Statutes with regard to claims filed pursuant to this Part.

(b)        A deputy commissioner shall be assigned by the Commission to make initial determinations of eligibility for compensation under this Part. The deputy commissioner shall review the claim and supporting documentation submitted on behalf of a claimant and shall make a determination of eligibility. In any case where the claimant was a competent adult when asexualized or sterilized, the burden is on the claimant to rebut the presumption that the claimant gave informed consent. If the claim is not approved, the deputy commissioner shall set forth in writing the reasons for the disapproval and notify the claimant.

(c)        A claimant whose claim is not approved under subsection (b) of this section may submit to the Commission additional documentation in support of the individual's claim and request a redetermination by the deputy commissioner.

(d)       A claimant whose claim is not approved under subsection (b) or (c) of this section shall have the right to request a hearing before the deputy commissioner. The hearing shall be conducted in accordance with rules of the Commission. For claimants who are residents of this State, at the request of the claimant, the hearing shall be held in the county of residence of the claimant. For claimants who are not residents of this State, the hearing shall be held in Wake County or at a location of mutual convenience as determined by the deputy commissioner. The claimant shall have the right to be represented, including the right to be represented by counsel, present evidence, and call witnesses. The deputy commissioner who hears the claim shall issue a written decision of eligibility which shall be sent to the claimant.

(e)        Upon the issuance of a decision by the deputy commissioner under subsection (d) of this section, the claimant may file notice of appeal with the Commission within 30 days of the date notice of the deputy commissioner's decision is given. Such appeal shall be heard by the Commission, sitting as the full Commission, on the basis of the record in the matter and upon oral argument. The full Commission may amend, set aside, or strike out the decision of the deputy commissioner and may issue its own findings of fact, conclusions of law, and decision. The Commission shall notify all parties concerned in writing of its decision.

(f)        A claimant may appeal the decision of the full Commission to the Court of Appeals within 30 days of the date notice of the decision of the full Commission is given. Appeals under this section shall be in accordance with the procedures set forth in G.S. 143-293 and G.S. 143-294.

(g)        If at any stage of the proceedings the claimant is determined to be a qualified recipient, the Commission shall give notice to the claimant and to the Office of the State Treasurer, and the State Treasurer shall make payment of compensation to the qualified recipient or a trust specified under G.S. 143B-426.51(b).

(h)        Decisions and determinations by the Commission favorable to the claimant shall be final and not subject to appeal by the State.

(i)         Costs under this section shall be taxed to the State.  (2013-360, s. 6.18(a).)

§ 143B-426.54. Office of Justice for Sterilization Victims. 

(a) There is created in the Department of Administration the Office of Justice for Sterilization Victims.

(b) At the request of a claimant or a claimant's legal representative, the Office shall assist an individual who may be a qualified recipient to determine whether the individual qualifies for compensation under this Part. The Office may assist an individual filing a claim under this Part and collect documentation in support of the claim. With the claimant's consent, the Office may represent and advocate for the claimant before the Commission and may assist the claimant with any good-faith further appeal of an adverse decision on a claim. 

(c) The Office shall plan and implement an outreach program to attempt to notify individuals who may be possible qualified recipients. (2013-360, s. 6.18(a).) 

§ 143B-426.55. Confidentiality.
Records of all inquiries of eligibility, claims, and payments under this Part shall be confidential and not public records under Chapter 132 of the General Statutes. (2013-360, s. 6.18(a).)

§ 143B-426.56. Compensation excluded as income, resources, or assets.
(a) Any payment made under this section shall not be considered income or assets for purposes of determining the eligibility for, or the amount of, any benefits or assistance under any State or local program financed in whole or in part with State funds.
(b) Pursuant to G.S. 108A-26.1, the Department of Health and Human Services shall do the following:
(1) Provide income, resource, and asset disregard to an applicant for, or recipient of, public assistance who receives compensation under this Part.   The amount of the income, resource, and asset disregard shall be equal to the total compensation paid to the individual from the Eugenics Sterilization Compensation Fund.
(2) Provide resource protection by reducing any subsequent recovery by the State under G.S. 108A-70.5 from a deceased recipient's estate for payment of Medicaid-paid services by the amount of resource disregard given under subdivision (1) of this subsection.
(3) Adopt rules to implement the provisions of subdivisions (1) and (2) of this subsection. (2013-360, s. 6.18(a).)

§ 143B-426.57. Limitation of liability.
Nothing in this Part shall revive or extend any statute of limitations that may otherwise have expired prior to July 1, 2013. The State's liability arising from any cause of action related to any asexualization or sterilization performed pursuant to an order of the Eugenics Board of North Carolina shall be limited to the compensation authorized by this Part. (2013-360, s. 6.18(a).)

The image is the building where the North Carolina Sterilization Board met. 

Payments to North Carolina Sterilization Victims Getting Closer

Well, it looks like the state budget is going to set $10 million aside to compensate victims of the North Carolina sterilization program.  The best recent article on this appeared in Miami Herald yesterday.

As long-time readers of the faculty lounge may recall, we've been following the campaign for compensation for a while and also discussing the complexities of the North Carolina eugenics program, which started in the 1930s and continued well past the time it ended in many other states.  

The 2013 Senate bill to provide compensation is here.

Reparations for Slavery and the Nat Turner Rebellion

This post is about reparations for slavery, even if not the kind we hear about now and then.  This is about the claims made by slave-owners in the wake of the Nat Turner rebellion for slaves killed during the rebellion and in its immediate aftermath.  Herein lies a window into public constitutional ideas and jurisprudence in Virginia slave society in the 1830s.  For these are appeals by  property owners who lost an important and valuable property, but who had no legal claim, to the Virginia legislature to make them whole.

The petitions speaks in an oblique way to the important question of just how much legislatures respected private property rights.  The question of antebellum respect for property rights has been addressed by legal historians with a rather diverse set of views from Dan Hamilton (whose Limits of Sovereignty found a robust protection of property emerging around the time of Civil War), to Jim Ely (whose The Guardian of Every Other Right locates those values much further back, at least at the time of Revolution), to Bill Novak (whose The People's Welfare found a strong spirit of regulation of property for the public good in the pre-Civil War era).  Hamilton, Ely, and Novak all deal with issues of regulation by the government of property, not the destruction of property by non-government actors.

There were petitions from six slaveowners for ten humans killed during the rebellion and its immediate aftermath.  One, for a slave named Alfred, is I think the person for whom Blackhead Signpost Road is named.  Alfred's owner's petition detailed that the Greensville Dragoons who found him “deemed that his immediate execution would operate as a beneficial example to the other insurgents—many of whom were still in arms and unsubdued.”

But what really interests me are the appeals the petitioners made to the legislature.   Several appealed to the general sense of justice and property:

The people of Virginia have at all times been renowned for a generous sympathy with individual suffering and he feels assured that there is not a man among them who would not rather impose a small tax upon himself than that an innocent person should suffer such a heavy loss of property.

The petitions then turned to history, arguing that such compensation was well-established policy of the state.  They referred to the legislature’s ancient practice, stretching back to the seventeenth century, of compensating slave owners whose slaves were killed by the sheriff, to make the case for compensation.  Moreover, it made no sense to hold the slaveowner liable for the acts of rebellion or to expect the slaveowner to look to the people who killed the slave for compensation. For no jury “would award damages against persons that they might think were acting under a sense of duty and with a view to the public safety.”  

In the end, none of the petitions were granted.  The Virginia legislature left people who had lost property to bear the losses themselves -- which in some ways reflects an extreme of classical liberalism.  Property rights might be respected scrupulously from infringement by the legislature, but there would be no spreading of risk among all the state's taxpayers.

Want to hear more about this?  I have a draft of my paper on "the Nat Turner trials" up on ssrn. 

Cultural Property Repatriation, Civil War Flags Edition

Further to my occasional commentary on the display of captured ordnance... and how much I'm uneasy with the display of ordnance used against the United States during the Civil War....

Umm, why have I never heard of the "Joint Resolution to Return to the Proper Authorities Certain Union and Confederate Battle Flags" that was passed on February 5, 1905 and is recorded at 33 Statutes at Large 1284?  I know this will surprise you given the title of the joint resolution: it deals with "Union and Confederate Battle Flags."  Pretty interesting to see what happened to the flags in the possession of the War Department -- those of the United States that couldn't be matched to a state were sent to West Point; those of the South that couldn't be matched to a state were sent to the Confederate Memorial Literary Society in Richmond.  About which I knew absolutely nothing.  I now learn that it owns the Museum of the Confederacy.  I think Eric visited that place when he was in Richmond a while back.

Here's the text of the resolution, by the way:

Resolved ... That the Secretary of War be, and he is hereby, authorized to deliver to the proper authorities of the respective States in which the regiments which bore these colors were organized certain Union and Confederate battle flags now in the custody of the War Department, for such final disposition as the aforesaid proper authorities may determine.

That "now in the custody of the War Department" part makes the claim on Virginia's flag in the Minnesota Historical Society mighty rickety.   But leaving the flimsy claim aside, what really interests me is (1) why isn't this more a part of the literature on reconciliation and memory of the Civil War?  I mean, I get that historians of memory all too often ignore law --  despite Glory McLaughlin's efforts to the contrary.  But shouldn't this be part of the story?  And (2), holy cow.  This is another example of a claim for repatriation of cultural property.  It's just like NAGPRA, only it relates to Civil War flags.  Or, as I'm fond of saying, this is another example of a claim for reparations for the era of slavery, just not of the kind we usually think about today.  I rather suppose that this claim will go the way of other reparations claims -- when people realize there is no legal claim (which anyone reading the joint resolution surely will understand), that will be the end of the discussion.

The flag used here is in the collection of the Minnesota Historical Society.

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's February 2014 issue, which is now up on Slavery and Abolition's website.

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.