Winning What’s Owed: A Litigative Approach to Reparations

By Daniel P. Suitor. Full Text. 

The continuing effects of slavery are still felt by millions of Black Americans today. A century-and-a-half after the formal end of their enslavement, Black people still suffer the deleterious effects of systemic racism in fundamental areas of their lives. The persistent disparities in health, economic, education, and carceral outcomes of Black people demand that our society take equitable action to ensure all people can fully enjoy the lives and liberties they are entitled to. Despite this call to action, reparations for slavery remain deeply unpopular with the American public. Renewed interest in a federal law proposing a commission to study the payment of reparations, as well as limited local measures attempting to provide reparative relief, provide faint hope for a political solution, but the arc of history has not favored such an outcome. Meanwhile, over 100 years’ worth of lawsuits suing for reparations have failed due to insurmountable justiciability barriers. With legal remedies barred, and political efforts for reparations uncertain, how can our society obtain reparative relief for Black people? This Essay proposes that state attorneys general are well-positioned to engage in litigation with reparative effects for Black people. It argues for a litigative framework contemplating a broader definition of reparations, and that the parens patriae standing held by attorneys general circumvents the justiciability barriers commonly placed in front of reparations lawsuits. This Essay then applies that framework to cases both extant and hypothetical to demonstrate how their remedies would particularly accrue to Black people in repair of harms stemming from the continuing effects of slavery. While such reparative effects would be patchwork and inherently local, not providing apology and spiritual repair (one of the fundamental outcomes of reparations programs), the unjust outcomes Black people suffer as a result of systemic racism cannot wait to be remedied. They demand action now, and this Essay provides a method of providing reparative relief.