Return to Virginia Business - July 2002

by Casey Aiken

The idea that American taxpayers should pay reparations for the damages of slavery is fast becoming the next big thing in civil rights. What began years ago as a proposition pushed by political extremists is no longer a fixation of just those on the margins.

Now comes a series of lawsuits that seek reparations against Aetna Insurance and Fleet Boston, along with Virginia-based railroads CSX Corp. and Norfolk Southern Corp. The suits claim that the ancestor companies of these firms profited inappropriately from slave labor before the Civil War.

To proponents, the issue is obvious. Randall Robinson, president of the Transafrica Forum, which organized the successful boycott of South Africa over apartheid, maintains that the case for reparations is to "remain faithful to the millions of blacks who remain economically and socially disabled by the long cruel promise of American slavery."

Supporters likewise believe there is ample precedent for the lawsuits. Similar ones were filed on behalf of Japanese-Americans interned during World War II and Jewish victims of the holocaust. They argue that Jews and Japanese-Americans rightly received reparations from Germany and the United States, and, by extension, all black descendants of American slaves should be compensated. They define the moral basis for reparations in simple terms: Slaves were not paid for their labor for over 265 years.

Yet, using the Japanese-American and Jewish examples as justification for slavery reparations is riddled with problems. As hateful as it may have been, slavery was legal in the United States. Thus, it will be difficult to show that the defendants wrongfully misappropriated the benefit of slave labor while conducting a legal enterprise as the suits claim. Estimates of actual damage run all over the map. Some run as high as $1.4 trillion. Even if damages were proven, courts would be hard-pressed to assess fair and realistic monetary judgments.

Specific injuries will be hard to show along without any provable direct connection to the defendant companies. Even the plaintiffs admit they can't directly connect themselves with the actual slaves who performed the actual labor. By contrast, German companies made payments only to those Jews who suffered or who were direct descendants of those who did. Being Jewish by itself did not qualify one for reparations. And while the U.S. government did authorize reparation payments to Japanese-Americans, it only paid those who actually were interned in camps.

More importantly, in the case of the Japanese-Americans, the payments were a political gesture, not the result of a court decision. Professor of Law Eric Yamamoto, University of Hawaii Law School, underscores the political intrigue that was waged during the successful campaign to redress Japanese-Americans. "The process was three pronged," he says. "There was a Congressional inquiry, exhaustive legislative lobbying efforts and legal challenges."

It's obvious that plaintiff Deadria Farmer-Paellmann is closely following the same script. She and her legal team say she may file suit against as many as 100 more U.S. corporations. Independent of the legal campaign, the USA Today newspaper has identified dozens of companies whose predecessor firms profited from slavery, including investment bank Lehman Bros., textile maker WestPoint Stevens and media companies Knight Ridder and Media General.

The first prong of slave reparations got its start 13 years ago when federal reparation legislation was introduced by Rep. John Conyers Jr., D-Mich.

In court, however, chances for success are rather slim. A U.S. Court of Appeals dismissed an earlier slave reparations suit in 1995 against the federal government, and urged the plaintiffs to seek their redress in Congress. The threat to Virginia-based companies is small, since the statute of limitations for a tort in Virginia is three years, making it hard to file for damages that occurred more than 139 years ago. In sum, Farmer-Paellman's legal complaints may be great for public relations, but they are built on legal quicksand.

The author, whose ancestors lived in the Petersburg area before the Civil War, is a partner with the law firm of Moses & Aiken in Rockville, Md.

Return to Virginia Business - July 2002