Representing the Race: Standing to Sue in Reparations Lawsuits

The fundamental problem raised by reparations, and particularly reparations litigation, is the question of how to apportion responsibility for historical wrongs. The most controversial harm targeted by reparations litigation is the enslavement of Africans and African Americans and the injuries consequent to that enslavement. The task faced by such litigation, therefore, is to construct persuasive theories explaining who is to bear responsibility for this and other race-based historical wrongs; to determine how such wrongs should be compensated; and to identify who is to receive that compensation. So far, most litigants have advanced only broad descriptions of the communities injured and the harms suffered during slavery. Moving beyond these sweeping generalizations, however, the task of charting our mutual responsibilities becomes more complex. It is not always easy to identify with specificity the wrong suffered or the benefit conferred, nor the link between that wrong or benefit and the responsibility for redressing it. Not every injury obliges the perpetrator to make the victim whole. Some wrongs are justified, and others excused, often - as in the case of slavery - by express governmental permission. A society's willingness to tolerate, justify, or excuse wrongs such as slavery may change over time, often as a result of legislative action, but more often thanks to changing social mores. Even when a wrong is condemned, it may not be possible to correct it or provide compensation. Some wrongs may lack a particular perpetrator. Alternatively, the wrong may have an identifiable human source who is no longer available to provide compensation - she may be dead, missing, or destitute - despite the continuing impact of the injury upon the victim. The demand for compensation, however, does not become less reasonable or just due to the absence of a specific perpetrator. There are clearly some injuries that, although not caused by a particular individual, we as a society justifiably identify as deserving of some form of reparative compensation, even when the victims contribute to the wrong. On the other hand, there are some injuries that we refuse to remedy through government action, even though "society" in some general sense is responsible for the unhappy state of affairs. This Article primarily addresses a variety of issues raised by attempts to litigate reparations for African Americans and, as a subsidiary matter, with certain consequences of such litigation as a political or social matter. I propose to consider one legal solution to the issue of responsibility in reparations litigation: the relationship between plaintiff, defendant, and injury established by the concept of standing. My goal is not so much to provide an exegesis of the doctrine of standing, as it is to use the concept to highlight some of the problems facing reparations lawsuits in the current legal and political climate. I suggest that the standing model generally requires some sort of continuing relationship, and thus - if reparations are to be traced to slavery - some enduring plaintiff, harm, and perpetrator. If, as seems required by slavery reparations lawsuits, the relation is to survive the absence of the original victim, there must be some harm that is transmitted from victim to victim across generations. Identifying such harms then becomes an essential part of reparations litigation, and may produce surprising results.