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84 B.U. L. Rev. 1277 (2004)
Restitution in Favor of Former Slaves

handle is hein.journals/bulr84 and id is 1289 raw text is: RESTITUTION IN FAVOR OF FORMER SLAVES ANDREW KULL* The idea that a modem claim in restitution might be a vehicle to redress unjust enrichment stemming from American slavery has an other-worldly quality about it, because the manifest difficulties confronting such a claim would form a whole series of obstacles, each insuperable by itself, in any litigation governed by ordinary rules of private law. Roughly enumerated, these obstacles include the lack of a plaintiff; the lack of a defendant; the impossibility of quantifying or tracing the benefit conferred; the need to engage in a kind of historical legislation (moving forward the effective date of the Thirteenth Amendment) if the underlying transactions are even to be characterized as illegal; and the statute of limitations. Modem commentators generally assume these objections away, or else make them the focus of an abstract argument about the modem adjudication of historic wrongs. Either response confines any question of restitution for slavery - based on a private suit for unjust enrichment - to the realm of jurisprudential speculation. In fact the availability of restitution to a person formerly held as a slave, within the historical regime of American domestic slavery, is not an untried question in American law. On the contrary, the claim in restitution by the former slave against the former master was frequently litigated in nineteenth- century American courts, on the plaintiff's assertion that he had been held as a slave during some period in which he was entitled to freedom. The nineteenth- century restitution claim was significantly different from the hypothetical modem one, but the important differences consist precisely in the elimination of the successive obstacles that make the modem claim unreal. Nineteenth- century restitution claims based on slavery had a real plaintiff (the former slave); a real defendant (his former owner); a conventional measure of benefit (the net value of the slave's labor, calculated at market rates); no question of retroactive legislation; and no problem with prescription, because applicable limitations periods were respected. Because of these differences, the nineteenth-century cases on restitution to former slaves permit us to see what happened when such claims were both theoretically viable and actually litigated. A summary answer is readily given. A claim in restitution by a former slave, seeking to recover the value of his labor from one who had wrongfully * Professor of Law, Boston University; Reporter, RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST ENRICHMENT. 1277

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