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103 Colum. L. Rev. 689 (2003)
Reparations for Slavery and Other Historical Injustices

handle is hein.journals/clr103 and id is 733 raw text is: ESSAY
Eric A. Posner* & Adrian Vermeule**
Victims of historical injustices who have no positive law claim against
wrongdoers often seek reparations from governments, and occasionally they
obtain them. The best known reparations programs are those for Japanese
Americans who were interned by the United States government during World
War II, and for victims of the Nazi Holocaust. But there are several other
less well known programs both in the United States and abroad, and there
are countless proposals for new reparations programs, including a proposal
for slave reparations in the United States. The moral and political argu-
ments for and against reparations in diverse contexts have received consider-
able attention, but problems of legal and institutional design have received
almost none. This paper fills the gap in the literature by analyzing the vari-
ous design options for reparations programs, their legal and constitutional
bases, and their relationship to the standard moral and political arguments
about reparations.
In this paper we provide an overview of the conceptual, legal, and
moral issues surrounding reparations. We aim to provide all participants
in these debates with analytic tools that may be used to sort out the good
normative arguments from the bad, whatever their political valence. And
we argue that a normative recommendation for or against any particular
grant of reparations must be highly sensitive to the question of how the
reparations scheme is to be designed; the question of whether repara-
tions should be paid turns crucially on choices about the form of pay-
ment, the identity of the beneficiaries, the identity of the parties who will
bear the costs of payment, and so forth. The prudential and institutional
issues surrounding reparations schemes, in other words, are as important
as the high-level questions about justice and injustice that are usually the
focus of reparations debates.
These claims are intended to fill large gaps in the literature. Despite
a cascade of recent writing on reparations, and on associated topics in
* Kirkland & Ellis Professor of Law, The University of Chicago.
** Professor of Law, The University of Chicago.
We thank Larry Alexander, Jim Dwyer, Michael Greene, Chris Kutz, Jacob Levy, David
Strauss, and participants at workshops at the University of Chicago, Stanford, William &
Mary, and George Mason, and thank John Griffin and Eric Truett for valuable research
assistance. Posner thanks The Sarah Scaife Foundation Fund and The Lynde and Harry
Bradley Foundation Fund for financial support; Vermeule thanks the Russell J. Parsons
Research Fund for the same.


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