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ARTICLES
PROPONENTS OF EXTRACTING SLAVERY
REPARATIONS FROM PRIVATE INTERESTS MUST
CONTEND WITH EQUITY’S MAXIMS
Charles E. Rounds, Jr.*
“The sensitive ear has heard the collective ‘thank you’ from those who were freed,
as well as the historic apologies in words and deeds from persons of good will for
the evils of slavery.”—Charles Ronald Norgle, District Judge.1
ABSTRACT
court of law or a court of equity is not an appropriate forum in which
to resolve issues of collective descendant entitlement and collective
descendant liability, which are at the core of the national conversation on slavery
reparations.2 This article considers the vulnerabilities of private property to a
judicial reparations decree that would compensate descendants of African slaves
for the adverse economic effects of slavery, an institution that was lawful in parts
of the United States before the ratification of the Thirteenth Amendment in 1865.
This article concludes that there is no basis, either at law or in equity, for such
relief. This article focuses on the vulnerability to judicial levy of the property of
defendants in slavery reparations actions, not on who might have standing in the
first place to bring such an action. The article assumes both standing and some
* Professor of Law at Suffolk University Law School; Academic Fellow, American College
of Trust and Estate Counsel; Senior Author, LORING AND ROUNDS: A TRUSTEE’S HANDBOOK (2011
Supp.) and sixteen prior editions. Professor Rounds’ full biography may be obtained by visiting his
faculty web page, http://www.law.suffolk.edu/faculty/directories/faculty.cfm?InstructorID=49.
1. In re African-American Slave Descendants Litig., 375 F. Supp. 2d 721, 781 (N.D. Ill.
2005).
2. Professor Mari J. Matsuda, a proponent of descendant liability, writes: “Members of the
dominant class continue to benefit from the wrongs of the past and the presumptions of inferiority
imposed upon victims. They may decry this legacy, and harbor no racist thoughts of their own, but
they cannot avoid their privileged status.” Mari J. Matsuda, Looking to the Bottom: Critical Legal
Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323, 379 (1987). According to Professor
Alfred L. Brophy, the argument that has been “advanced most seriously against reparations [] is
that the people currently asked to pay had nothing to do with the injustices of the past.” Alfred L.
Brophy, The Cultural War over Reparations for Slavery, 53 DEPAUL L. REV. 1181, 1202 (2004).
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demonstrable in rem nexus between plaintiffs and the private property sought to
be reached. Because courts and scholarly commentaries quite rightly have
concentrated on the threshold standing question, questions of defendant liability,
whether in rem or in personam, have been given short shrift. This article
endeavors to close the analytical loop.
INTRODUCTION
Since the end of the Civil War, former African slaves and their descendants
have sought reparations for the wrongful enrichment of slave owners and slave
traffickers when slavery was lawful in parts of the United States. Their strategy
has been twofold: (1) to attempt to legislatively tap into the federal treasury; and
(2) to attempt to reach, primarily by judicial decree, the private property of their
fellow citizens.3 This article considers the vulnerabilities of private property to a
slavery-based judicial reparations decree4 and concludes that there is no basis,
either at law or in equity, for such relief.5
3. See generally In re African-American Slave Descendants Litig., 375 F. Supp. 2d at 734-36
(noting that while the political initiatives of the slavery reparationists to legislatively tap into the
federal treasury began in earnest at the end of the nineteenth century, it was only at the beginning
of the twenty-first century that descendants of slaves begin in earnest to seek judicial “reparations
from private corporations that were alleged to have unjustly profited from the institution of
slavery”). Reparation has one private law meaning and two public law meanings. In the private
law context, reparation is a substantive remedy for unjust enrichment that is levied against a private
interest by a court. See generally CHARLES E. ROUNDS, JR. & CHARLES E. ROUNDS, III, LORING AND
ROUNDS: A TRUSTEE’S HANDBOOK § 7.2.3.3 (Supp. 2011) [hereinafter LORING AND ROUNDS]. In
the public law context, there are the war reparation and the legislative reparation. War reparation is
an economic sanction that a state imposes by force of arms on another state. The provisions of the
Treaty of Versailles (1919), which “formally asserted Germany’s war guilt and ordered it to pay
reparations to the Allies,” come to mind. See COLUMBIA ENCYCLOPEDIA 2304 (5th ed. 1993).
Some reparation payments were to be made in cash, while others were to be made in kind, such as
by transfer of coal, steel, and ships. Id. Legislative reparation is the appropriation of general tax
revenues to fund social programs. See generally ALFRED L. BROPHY, REPARATIONS PRO & CON
141-64 (2006). Such programs might provide for direct grants to individuals in order to remedy the
alleged residual adverse economic effects of enslavement on those individuals. War reparation and
legislative reparation are beyond the scope of this article. While each activity may be politically
controversial, neither raises legal issues that are particularly troublesome. See In re African-
American Slave Descendants Litig., 375 F. Supp. 2d at 781 (noting that “from the onset of the Civil
War until present, the historical record clearly shows that the President and Congress have the
constitutional authority to determine the nature and scope of the relief [that slavery reparationists
seek]”). That said, the conflation of the judicial decree and the legislative appropriation in the
national slavery reparations conversation has not been helpful. See Eric A. Posner & Adrian
Vermeule, Reparations for Slavery and Other Historical Injustices, 103 COLUM. L. REV. 689, 690
(2003) (noting that “commentators on all sides of the issue focus excessively on abstract questions
about the justice of reparations while ignoring institutional and prudential questions about how
reparations schemes should be designed”).
4. By private economic interests, I mean one’s legal or equitable property rights. The
enforcement of a reparation decree that depletes the assets of a private corporation, for example,
erodes the legal property rights of its stockholders. The enforcement of a reparation decree against
the assets of a private corporation which itself is an asset of a mutual fund erodes the equitable
property rights of those who own participations in the fund. It is said that property does not have
rights; people do. See Lynch v. Household Fin. Corp., 405 U.S. 538, 552 (1972). A corollary to
