Reparations and Net Benefit

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11 Responses

  1. Orin Kerr says:


    I haven’t read the literature in this area, but I assume that those who make this argument also focus on the identity of who is hurt or helped. In the case of slavery, the malevolent intent was not directed at the individuals who would receive payment today; instead, it was directed at the ancestors of those who would receive payment. (I’m assuming, following what I gather is the assumption in your post, that the malevolent act you have in mind is the act of enslavement, not the residual effects of the history of American slavery on individuals of different races.) If that’s the argument, then the claim isn’t so much about “offsets” as it is about harm: the claim would be that those who are seeking reparations are actually beneficiaries of the act that they claim harmed them.

  2. Kaimi says:

    Good point, Orin.

    You’re right that this particular reasoning is often linked to (or made in conjunction with) a broader cluster of causation / attenuation / plaintiff identification arguments. And these arguments aren’t always clear (and the NLJ blurb is not particularly detailed.)

    However, from the evidence cited, it sounds like the argument implies some kind of offset, because the evidence (relative standard of living) isn’t really needed to make the basic attenuation arguments.

    Attenuation arguments against reparations are easy to make, and don’t really require any assertions about standards of living: “Slaves were directly harmed, but all slaves are deceased, and present day African-American claimants did not suffer enslavement. Therefore, they cannot show causation and should not be allowed to recover.”

    It’s true that evidence of relative standard-of-living could enter that analysis, such as to show that slave descendants do not suffer from indirect or secondary harms. It would only come in as a rebuttal, though, to possible counter-arguments against the basic attenuation argument.

    If straight causation-and-attenuation was really Birmingham’s argument, it seems very strange to highlight what is at best a relatively minor part of the equation. That is, instead of summarizing the argument as,

    The professor questioned whether reparations are logically due for American descendants of slaves, who generally enjoy a much better standard of living than modern West Africans whose ancestors were not enslaved.

    a straight causation-attenuation argument would be better summarized,

    The professor questioned whether reparations are logically due for American descendants of slaves who were not directly subject to the torts of enslavement and who are only linked to slaves through indirect intergenerational links.

    Giving prime place to the relative standard of living (as essentially the only part of Birmingham’s argument that is cited) suggests that rather than making a straight attenuation argument, he’s making an offset argument. Offset arguments are relatively common among reparations opponents; for instance, David Horowitz has suggested that slave descendants should be “grateful” (his word) for the fact that they live in America and have a higher standard of living than Blacks in Africa.

  3. Does academic freedom extend to nonsense? says:

    Perhaps I am just missing something, but isn’t is nonsensical to compare “these blacks” to “those blacks”?

    It is not as if American Slave A and American Slave B, who created Slave Descendant 1, would have, in the absence of the slave trade, met in Africa and been African A and African B, who produced Free Descendant 1. Nor is it necessarily the case that Free Descendant 1 and Slave Descendant 1 — born in a different time and place — have the same consciousness, i.e., are the same person. The slave trade may have created sexual pairings and individuals that would not have existed otherwise. Because there might not be any counterfactual world in which Modern African 1 is the doppleganger of Modern African-American 1, there is nothing to compare: just Modern African-American 1 or Nothing. Sure, existing is better than not-existing. But one isn’t worse off not-existing, because one doesn’t exist to be worse off.

    Horowitz’s argument is, literally, nonsense.

  4. Does academic freedom extend to nonsense? says:

    “isn’t it“, rather!

  5. What is interesting is that these issues do arise all the time in tort law, and even more so in employment law.

    Now you’ve got me thinking about the difference between tort law and criminal law. In tort law you pay the victim. In criminal law you punish the wrongdoer.

    The problem with most of the arguments is that they are beginnings, not ends.

  6. davidb says:

    If the claim is (an essentially individual rights claim) that blacks are due reparations as compensation for the forced labor of their ancestors, i.e., that they are essentially the heirs of a legitimate claim to compensation, then the comparison is inapt and irrelevant.

    If the claim is (an essentially group rights claim) that blacks are due reparations because they bear the legacy of slavery and are therefore worse off than white Americans, then the comparison is quite relevant; it’s perfectly appropriate to retort that but for slavery, blacks wouldn’t be living like American whites, but like African blacks.

  7. TJ says:


    Your second hypo gave me pause, but I think there are two responses. So, as distasteful as it is for me to say it, I have to side with Birmingham here (I will be glad to be refuted):

    1. The hypo focuses, correctly, on a tort law action. Thus, the fact that the criminal will be punished by the criminal system is being ignored. But what is really driving the sentiment that the defense shouldn’t work, I think, is that the offender should not get off free due to fortuity. We should punish and deter assault and rape even if, in a particular case, they result in “net gain”–becuase they usually do not.

    2. The tort system, however, is not the usual method of providing this deterrence. It sometimes has this function, but mostly it is to compensate a victim for loss. And in seeking tort recovery, the victim in your hypothetical is explicitly seeking to monitize her loss. When monitized, the loss is zero.

    3. Finally, reparations are even more explicitly a monitization of loss than your scenario. Reparations have two principle justifications: (a) to compensate the direct historical victims, where the money passes to their descendents via inheritance principles; and (b) a collective rights theory, the the descendents are continuing victims due to the historical deprivation. To take a loose analogy, (b) would be akin to a wrongful death suit.

    If my analogy is right, then (b) is much closer to a case where the victim actually dies, and her relatives bring a wrongful death suit against the assailant; or a loss of consortium suit by a spouse. Historically, the relatives would get nothing because there has been no causation of loss.

  8. Nonsense on stilts is still nonsense says:

    If the claim is (an essentially group rights claim) that blacks are due reparations because they bear the legacy of slavery and are therefore worse off than white Americans, then the comparison is quite relevant; it’s perfectly appropriate to retort that but for slavery, blacks wouldn’t be living like American whites, but like African blacks.

    No, this still makes no sense. But for the slave trade they wouldn’t necessarily be living like African blacks, because but for the slave trade they might not be living at all.

    Furthermore, not only is the retort invalid; it isn’t technically a retort. The definition of retort is “to return like for like.” The claim that the slave trade unfairly distributed wealth to one group of Americans at the expense of another group of Americans takes the slave trade as a given. The “retort” does not.

    In order for Horowitz’s argument to make sense, you have to abandon all reason and any coherent approach to the English language.

  9. KJS says:

    I think there is a clear difference between hypothetical 1 (H1) and hypothetical 2 (H2).

    In H1 no damage is ever sustained as a consequence of Charlie CEO’s breach of duty (and hence, as Kaimi correctly points out, there is no damage to compensate for). In H2, it is true that the damage sustained by Violet through being assaulted by Kenny is arguably less that that which Violet would have sustained if the assault had not occurred but Violet still suffered damage as a result of Kenny’s acts. As Kenny’s actions could not in any way be construed as an attempt to save Violet from the greater harm of the gas explosion (of which he was unaware and, even with knowledge, his methods were wholly unreasonable) those actions should not (and I think it is fairly safe to assume in almost every jurisdiction would not) provide him with any defence against Violet’s tort claim.

    Is there anything arising out of this analysis that could be applied to the reparations debate? Maybe only the observation that it would seem consistent with it to argue that ‘net benefit’ is not enough if actual damage was sustained (and forced servitude probably satisfies this standard), the tortfeasor did not intend to provide the alleged ‘greater benefit’ and the means adopted to provide the alleged benefit were not reasonably adapted to that purpose.

    It does not follow that reparations should definitely be paid (as has been noted, there are other relevant arguments – such as whether decendants of persons directly affected should have standing to claim compensation for it) but it is perhaps at least one reason why the ‘net benefit’ argument does not present as one that is really congruent with the way the rest of the law of torts appears to have developed.

  10. Brett Bellmore says:

    “This anti-reparations argument boils down to a “net gain” sort of theory. It says, in essence, “yes, we enslaved Africans.”

    In point of fact, anti-reparationists would never make this argument, because a basic starting point of opposition to reparations is that we did nothing of the sort. Somebody else, long dead, did it.

    In general, when you’re restating somebody’s argument, you should avoid introducing premises they explicitly reject.

  11. Net Benefit Implicitly Concedes Being a Beneficiary says:

    Somebody else, long dead, did it.

    Except the “net benefit” theorist does admit to being an indirect beneficiary; his point is “Even if I did indirectly benefit from the slave trade, the benefit of being the descendant of a slave outweighs the cost of being a modern African, so that comparison, and not a comparison between myself and an American who descended from slaves, is the relevant one.”

    Which, again, is nonsense, because the argument is between Americans arguing about the distribution of the spoils of slavery amongst Americans. If a young person said, “Hey, the Boomer generation will get all the benefit of Social Security!” it is a non sequitur to reply, “Young people in some Third World countries are dying of starvation.”

    Not to mention reeking of ageist condescension.