are once again in the news. For a change, the news is good and offers some
hope that the federal judiciary can – once in a while – do the sensible thing.
In an opinion released just last week, U.S. District Judge Charles Ronald
Norgle dismissed a consolidated lawsuit seeking reparations from corporate
America for its role in the perpetuation of slavery in the United States.
(In re African-American Slave Descendants Litigation, 2004 U.S. Dist. LEXIS 872 (N.D. Ill. Jan. 26, 2004)).
The named Plaintiffs in this class action sought dollars on behalf of “descendants
of formerly enslaved Africans” as well as all living “formerly enslaved African-Americans.”
That’s right – former slaves who are still living. Though the Thirteenth
Amendment ended slavery in the United States in 1865, several of the Plaintiffs
claimed to have been held as slaves until the 1960s. Plaintiff C. Doe alleged
that through the 1960s he and his family “were forced to live on the slave
quarters of a plantation that grew numerous agricultural crops” and that
the corporate Defendants “had reason to know of the construction of forms
of slavery yet failed to take steps to eliminate the same, while they continue
to inure benefits form [sic] the illegal, but sanctioned system of servitude
Post-Emancipation.” Quite an interesting allegation. If C. Doe was involved
in agriculture in the 1960s, he was likely raising and smoking things prohibited
by the federal Controlled Substances Act.
Along with alleged ties to the slavery, all corporate Defendants in the suit
also happened to have very deep pockets. The Defendants were a who's who
of the Fortune 500. (Although we all know that social justice rather than
greenbacks was the motivating force behind the lawsuit.)
For example, Brown Brothers Harriman was target because its predecessor corporations
“loaned millions directly to planters, merchants and cotton brokers throughout
the South.” New York Life earned the Plaintiffs’ vitriol because its predecessor
corporation “earned premiums from its sale of life insurance to slave owners.”
Westpoint Stevens, the successor-in-interest to Pepperell Manufacturing,
was sued because it “utilized cotton from Southern planters farmed by enslaved
Africans.” In addition to these companies, Plaintiffs also sued FleetBoston
Financial Corporation, CSX Corporation, Aetna Inc., Lloyd’s of London, JP
Morgan Chase Manhattan Bank, and RJ Reynolds Tobacco Company, just to name
The Defendants raised four defenses to Plaintiffs’ suit: (1) Plaintiffs had
no standing to bring suit against them, (2) Plaintiffs’ claims were non-justiciable
political questions left to the representative branches of government, (3)
Plaintiffs failed to state a proper claim, and (4) Plaintiff’s claims were
time-barred. Though the Court agreed with the Defendants on all four points,
the standing issue best illustrates the ridiculousness of Plaintiffs’ suit.
When courts say that a litigant must have standing, they mean that he must
have a significant stake in the controversy to merit being the party to litigate
it. First, courts require that a plaintiff must have suffered an injury in
fact – a concrete and particularized injury, and not a speculative or conjectural
injury. Second, there must be a causal connection between the injury and
the allegedly harmful conduct. Finally, the injury must be addressable by
a favorable decision from the court.
In the reparations case, the Plaintiffs argued that slaves suffered a concrete
injury and that the descendants of slaves were injured because they were
denied the economic wealth of their ancestors’ labor which would have been
passed to them via inheritance. They also argued that blacks in America “still
endure daily indignities from the legacy of slavery, including . . . racial
profiling, racial slurs, and improper and hurtful assumptions regarding their
overall status.” Plaintiffs then linked to slavery shorter black life expectancies,
black-on-black crime, and a high incidence of incarceration.
Judge Norgle began by noting that the Plaintiffs’ injuries were based on
pure speculation. The supposed injuries were clearly derivative of the injury
inflicted upon enslaved blacks. The corporate Defendants, even if they had
been involved in African slavery, had done nothing to the Plaintiffs. As
for the slave ancestors, the Plaintiffs had also failed to establish that
any corporate Defendant had any a connection to the ancestors. The fact that
Brown Brothers, for example, loaned money to Southern planters and merchants
was insufficient to establish a logical nexus between the ancestors and the
The judge also pointed out the broad assumptions made by Plaintiffs in bringing
suit. For instance, while we all would like to believe that we will be the
recipients of our ancestors’ bounty upon their demise, this is a mere assumption.
There is no guarantee that our ancestors will have wealth to pass on to us
or that they will choose to pass it to us. And this flimsy expectation of
some bequest is not enough on which to base a lawsuit.
The “stigmatic injury” also fell short of a concrete and particularized injury.
Plaintiffs simply highlighted perceived social ills and demanded dollars
from the corporations. While this might work when Jesse Jackson shakes down
a corporation for failing to have sufficient numbers of blacks in the workforce
or in management, the legal system imposes a more rigorous requirement.
Judge Norgle dismissed the suit “without prejudice,” meaning that the Plaintiffs’
attorneys can file another complaint. He gave them two weeks to decide whether
to refile or to appeal the dismissal. Rather than being so generous, Judge
Norgle should have sanctioned the Plaintiffs’ for filing a frivolous lawsuit
and dismissed the case “with prejudice.”
It’s bad enough that slave reparations are a serious topic of discussion
in political circles, but at least Congress, in theory, could appropriate
money to dole out to the descendants of slaves. There would, of course, be
various difficulties encountered, such as deciding whether to pay the descendants
of the 3000 black slave owners in the ante-bellum United States, but Congress
could spend the money.
That courts are plagued with reparations suits is but more evidence that
our justice system is looked on as a political branch. Unfortunately, judges
today make public policy all the time, whether it is sanctioning gay marriage
or creating some other new “right” out of whole cloth. We can at least be
thankful that Judge Norgle made the right call in this matter, but who knows
what will happen if the Plaintiffs refile or appeal? The quest reparations
(along with sizeable attorneys’ fees) is not over yet.
William J. Watkins, Jr., is an attorney practicing in Greenville, South Carolina and a research fellow at the Independent Institute. Reprinted with permission of the Independent Institute.