Two Concepts of Injustice in Restitution for Slavery
Abstract
This article, which will appear in a symposium issued of the Boston University Law Review titled "The Jurisprudence of Slavery Reparations," criticizes attempts to secure legal redress for slavery through lawsuits based on unjust enrichment. The article has three parts. First, it compares the recent efforts to litigate the wrongs of caused by American slavery to other recent "mass restitution" lawsuits, namely the states' unjust enrichment suits against the tobacco industry and the suits against banks and corporations for unjust enrichment arising out of the Holocaust. Second, the article questions the fit between the structure of restitution and the interests that slavery litigation hopes to vindicate. It argues that lawyers who choose to address the wrongs of slavery under the rubric of "unjust enrichment" are using a legal fiction designed to avoid important and non-trivial barriers that would probably defeat suits based on a characterization of slavery as an dignitary harm. The danger of this tactic, I argue, is that it secures a legal victory at the cost of "commodifying" the interests injured or destroyed by slavery. Third, and finally, the article responds to the argument (most prominently associated with Hanoch Dagan) that because restitution for wealth generated by slavery provides for the return of all profits generated by slave labor, it can capture the expressive harm of "loss of control" over one's own labor. I argue that the structure of the common law implies just the opposite, and that where expressive damages have been permitted to persist past the death of the party who has been injured, it has been in the context of certain personal injuries, and not suits for redress for dignitary harms. I conclude, therefore, any effort to expand restitution so that it not only can serve to rectify wrongful transfers but also redress dignitary interests will be difficult to justify.
