80 Notre Dame L. Rev. 251 (2004-2005)
Getting Reparations for Slavery Right - Response to Posner and Vermeule

handle is hein.journals/tndl80 and id is 273 raw text is: GETTING REPARATIONS FOR SLAVERY RIGHT-A
RESPONSE TO POSNER AND VERMEULE
Roy L. Brooks*
INTRODUCTION
In their essay, Reparations for Slavery and Other Historical Injustices,
Eric Posner and Adrian Vermeule (hereinafter referred to as the au-
thors) set out to provide an overview of the conceptual, legal, and
moral issues surrounding reparations.2 Their main critical thrust is
to fill what they perceive to be large gaps in the literature'3 on repa-
rations and, thus, to provide an accurate map of the intellectual ter-
rain.'4 Although the authors make some interesting points5 and, I
very much want to believe, bring to the table a welcome degree of
openness and objectivity often missing in legal scholarship,6 they fall
* Warren Distinguished Professor of Law, University of San Diego School of
Law.
1 Eric Posner & Adrian Vermeule, Reparations for Slavery and Other Historical Injus-
tices, 103 COLUM. L. REV. 689 (2003).
2  Id. at 689.
3  Id.
4  Id. at 689, 747.
5 See infra note 168 and accompanying text for a discussion of some of the inter-
esting points the authors make. Yet, the authors also raise some absurd points; for
example, that the outcome of the reparations (or redress) debate depends in large
part on a calculation of the the harm whites did to blacks (in other words, the guilt
of whites), Posner & Vermeule, supra note 1, at 708, when in fact the whites who
participated in the institution of slavery are all dead, and today's whites simply have
had nothing to do with slavery. The only living entities that are guilty of slavery, and,
hence, can be held legally or morally responsible, are governments (federal and state)
and corporations. And so it only makes sense to talk about the guilt of these entities.
Today's whites do, however, have a role to play in redressing slavery. They can and
should support redress efforts not because of white guilt, but because of civic duty.
See infra text accompanying notes 153-55.
6 The authors say that they are less concerned with attacking or defending par-
ticular reparations proposals than with illuminating the relevant ethical, legal, and
institutional problems. Posner & Vermeule, supra note 1, at 746. However, a critical
theorist would certainly challenge the authors' professed objectivity by pointing to the
essay's hegemonic character. A critical theorist-whether a structuralist, see, e.g., Rob-
ert W. Gordon, Unfreezing Legal Reality: Critical Approaches to Law, 15 FLA. ST. U. L. REv.

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