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Monday, Nov. 20, 2000

This article is Part One of a two-part series by Professor Sebok on the possibility of reparations for African-American slavery. Part Two will appear on Monday, December 4. — Ed.

Class action litigation is one of the most powerful tools developed by American lawyers in the postwar period. It has the unique capacity to focus and concentrate the demands of thousands, sometimes millions, of victims. It can create a threat so great that powerful defendants often would rather settle than risk taking a class action to trial.

Like civil rights law, which also developed during the ‘50's, ‘60's and early ‘70's, the class action is seen by many as one of the few ways in which the courts have changed the balance of power in America. It is no surprise, therefore, that class action litigators and civil rights lawyers have joined forces to use tort law to address the wrongs of slavery in America.

Who’s on the New Dream Team for Reparations

Earlier this month, a group of lawyers and law professors announced the formation of the "Reparations Assessment Group." Its membership includes Professor Charles Ogletree of Harvard Law School, Johnnie Cochran, and some of the nation’s most respected and feared class action attorneys. Some are themselves African-American; some are not. What they share is that they are all members of the exclusive "100 million dollar" club—each has participated in cases that regularly yield settlements of at least $100 million.

Richard Scruggs, a leading asbestos and tobacco attorney, is in the group. So is Willie Gary, whose $500 million fraud claim against a Canadian funeral home operator was recently recounted in The New Yorker. So is Richard Pires, who lawyered a $1 billion settlement with the U.S. Government on behalf of black farmers who were denied loans. And Dennis Sweet, who just recently wrapped up an innovative $400 million settlement in the "phen-fen" case in Philadelphia.

The Dream Team’s Plans: Private Tort Lawsuits for Slavery’s Harms?

What does this "dream team" want to do? No suit has been filed, but it seems that the combination of traditional civil rights ‘activist’ attorneys such as Ogletree and Cochran with the leading members of the class-action tort bar suggests a change in strategy about how to raise the question of African-American slavery before the courts.

Since Reconstruction, most of the legal activity concerning slavery has dealt with its social and political consequences, and the state and federal governments’ responses to those consequences. Thus, we have seen a century of important legislation concerning civil rights, welfare, and affirmative action, as well as a large and complex doctrine of constitutional law interpreting that legislation. But there have been very few private lawsuits against either the government or individuals, demanding compensation for the millions of torts committed during slavery.

"Public" Civil Rights Law Loses Faith

There are many reasons to suspect that lawsuits for these torts would be difficult to win today and would have been no easier to win fifty years ago. There are even more reasons to suspect that trying to capture the wrong of slavery through the language of tort litigation may be misdirected. These questions will be discussed in my next column. For the moment, I want to focus on a different question: Assuming that Cochran, et. al. are onto something, why now? What are the circumstances or conditions (if any) that explain this approach at this point in time?

There may be three proximate causes. First, the turn to private law may be a natural consequence of the fact that many civil rights activists no longer have very much faith in "public" civil rights law. Since the late 1960's—which is viewed by many as the highwater mark for civil rights law—the legal gains made by African-Americans and other minorities have been whittled down by a conservative Supreme Court, a hostile Congress, and an ambivalent electorate.

Furthermore, it is not even clear that legal success has brought about substantive gains. Many social scientists, not all of them conservative, have questioned the value of the legal victories won in Brown v. Board of Education and its progeny. Thus, there are many who doubt the value of the public law approach for African-Americans.

Class Action Law Gains Strength

Second, class action law has reached the point where, for good or for ill, certain lawyers and kinds of claims produce in defendants a very strong desire to settle. By now, many issues concerning class certification and trial practice have been litigated, and although the plaintiffs’ bar has by no means won all the battles, it has won enough that the filing of a class action suit often presages one inevitable outcome: settlement.

Indeed, critics of the current system complain that corporate defendants are so wary of the jury system that they settle too many cases and build the cost of anticipated litigation into the price of their products. Plaintiffs’ lawyers like Richard Scruggs and Dennis Sweet might answer that corporate defendants settle because they know that their products are indefensible, and that were it not for the economic threat of a class action, these cases would never have seen the light of day. In any event, the big class action plaintiffs’ attorneys now have enough of a track record and enough money (especially after the tobacco settlement) that they can afford to bring the formidable power of their practice upon a new kind of problem.

Ethnic Groups Win Out of Court

Third, in recent years there have been a handful of highly charged cases where ethnic groups have demanded and received reparations through litigation. In the United States, Japanese-Americans began to sue the American government under the Federal Tort Claims Act, and these suits, coupled with a Congressional investigation, produced legislation that, in effect, "settled" Japanese-Americans torts claims for false imprisonment in internment camps, as if it were a mass tort.

The Holocaust claims made it possible for American courts to think about human rights violations as both public and private wrongs. The fact that the claims were pressed by experienced class action attorneys meant that the corporate defendants faced the same irresistible pressures they would have faced had they been sued by the same lawyers in a products liability or securities fraud case. It is no surprise they settled.

Thus, there are distinct reasons why the Reparations Assessment Group has appeared when it has, and why it looks the way it does. I am not surprised to see Richard Scruggs and Charles Ogletree sitting down together, although it is somewhat ironic when one considers the fact that the class action practice (and lawyers) that are undergirding the Reparations Assessment Group's new tort strategy are based in Old Confederacy states such as Mississippi and South Carolina.

The deeper questions concern the legal and political future of this approach. What kind of tort claims can address the wrongs of slavery? Are they legally viable? And finally, is tort law the best way to address the historic evils of slavery? These questions will be considered in my next column.

Read Part II of Professor Sebok's article.

Anthony J. Sebok, a FindLaw columnist, is a Professor of Law at Brooklyn Law School.

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