A major difficulty facing the reparations-for-slavery movement is that to date the movement has focused its litigation strategies and its rhetorical effort upon the institution of slavery. While slavery is the root of modern racism, it suffers many defects as the centerpiece of a reparations litigation strategy. The most important difficulty is temporal. Formal slavery ended in 1865. Thus, the time line of potentially reparable injury extends to well before the period of any person now living. The temporal difficulty arises from the conventional expectations of civil litigation, which require a harmony of identity between the defendants and the plaintiffs. Although the class action format loosens this expectation in important ways, even the most aggressive application of class action theory is rooted in the requirement of a harmonious identification in which the plaintiffs have been specified and the defendant can be identified as the source of the injury. If reparations are to become a successful legal strategy, the fact that slavery ended more than 130 years ago presents formidable obstacles and conceptual challenges that require careful consideration . . . Because I argue that an exclusive focus on slavery is misguided, this Article endorses an alternative. My research on the legacy of lynching convinces me that the problem of lynching and race riots in the period 1865-1955 provides a promising and ultimately more satisfyingly fertile field for undertaking the same project as the reparations-for-slavery movement, with far fewer of the disabilities of the slavery-focused effort. In what follows, I show how lynching and race riots have virtually disappeared from the official record of American racial history. Through a series of accumulating myths, omissions, and distortions, modern Americans have a collective amnesia about the "red record" of human atrocity. If we focus on the pattern of racial atrocity in the relatively recent past, the conventional lawsuit or legislative reparations might serve as an appropriate vehicle for redress.
58 N.Y.U. Ann. Surv. Am. L. 557-613 (2003)
Scholarly Commons Citation
Jordan, Emma Coleman, "A History Lesson: Reparations for What?" (2003). Georgetown Law Faculty Publications and Other Works. 102.