Current paradigms of accountability ensures injuries are not suffered by U.S. government, but individual corporations.

Few dare to speak of a ‘‘slaveholders’ Constitution’’ (as abolitionists had a century and a half ago), to charge the government with ultimate responsibility for slavery. The injuries suffered were not at the hand of the U.S. government, but at the hands of Aetna Life & Casualty, R. J. Reynolds Tobacco, FleetBoston Financial, Lloyds of London, and other corporations. In cases recently filed in U.S. civil courts, the ‘‘crime’’ of slavery involves ‘‘unjust enrichment,’’ the loan of monies to ‘‘planters, merchants, and cotton brokers throughout the South,’’ the collection of ‘‘custom duties and fees on ships engaged in the slave trade,’’ the garnishing of premiums through the ‘‘sale of life insurance to slave owners’’ and ‘‘the insuring of ships utilized for the Trans-Atlantic slave trade,’’ and the construction of railroad lines and harvesting of tobacco ‘‘in part by slave labor.’’18These most recent reparations cases are unable to name the state as an agent in the perpetuation of injury; they foreclose the possibility of a discussion of the racial state, and as such they reinscribe the neutrality of the state. What is more, in all these cases, which ‘‘demand . . . a just and fair accounting of profits earned from slave labor,’’ the injury of slavery amounts in essence to the withholding (certainly violent, certainly coerced) of the slave’s wages. The plan for redress, in turn, amounts to a demand for back wages. What better illustrates Cugoano’s pragmatic resignation and the This content downloaded from 35.0.62.139 on Wed, 19 Jul 2023 14:43:36 +00:00 All use subject to http 8 R insufficiency of redress—‘‘a just commutation for what cannot be fully restored’’— than a demand for back wages? Recent cases for reparations have focused on figuring out formulas for ‘‘just commutation,’’ on how to create a case for a ‘‘cause of action,’’ on how to advance and pursue claims for redress before the bar.19 Judicial models of redress often require that claims fit a legal paradigm of individual rights, that a group seeking a court’s remedy for harms done to it translate its claims into forms synonymous with the rights and privileges, duties and liabilities that the Constitution ascribes to the agents of contractual liberty (for example, the Constitution’s ‘‘due process’’ protections of citizens against deprivation of life, liberty, or property by the state, and its guarantee of ‘‘equal protection of the laws’’). In line with this emphasis on the individual, appeals for judicial redress must satisfy the demand for identifiable victims and perpetrators, unambiguous causation, limited and certain damage, and the acceptance that the agreed remuneration shall be final. This reduction of collective appeal to the forms of grievance common to the paradigm of individual rights is often claimed as the principal reason why the case for Japanese-American reparations succeeded. It is also claimed as the principal reason why the claims for African-American reparations have failed. The paradigm of individual rights presents African Americans with particular obstacles. First, this paradigm’s standard of accountability renders all claims for black reparations null and void, as the victims and perpetrators of slavery have been long dead. Second, the focus on the individual in liberal legal formulas for remedy makes difficult an account of group oppression and structural inequalities. Third, and finally, the focus on identifiable victims and perpetrators foregrounds the law’s indifference to tangled and complicated webs of causation. African Americans’ attempts to establish the authority of the past have been made difficult if not impossible by the temporal limits placed upon the duration and finality of a wrong. Or, in other words, one means of dismissing a claim for redress is to charge the plaintiff with unreasonable delay or negligence in pursuing a right or claim. African Americans are guilty of their own wrong—of sleeping on their own rights, failing to act in a timely fashion, or what the law would describe as laches (F. lachesse, negligence, slackness). If African Americans fail in their attempt to achieve redress, it will be due not to the nation’s failure to recognize historical wrongs, but, curiously, to their own negligence. Dismissals of African American claims for reparations oscillate between competing senses that one either has no ground for a legitimate claim or that the claim has come too late. Temporal relations, as Westley points out, ‘‘determine the existence or nonexistence of standing.’’ He identifies two opposing views. In the eyes of the court, the passage of time eviscerates standing for those who claim redress for race-based injuries; but from the perspective of the petitioners, it is this very passage of time that augments and intensifies these injuries. Westley proposes a legal path beyond this impasse, which arises in large part from the doctrinal constraints of tort law and contract law. The most This content downloaded from 35.0.62.139 on Wed, 19 Jul 2023 14:43:36 +00:00 All use subject to http Fugitive Justice 9 viable path for future reparations claims, he suggests, is to be found in the law of restitution, which gives courts ‘‘the equitable powers . . . to undo the unjust enrichment brought about by a defendant’s misappropriation of labor through violence, coercion, fraud, and duress.’’