State attorney general solves best while avoiding backlash broadly

II. A PRAGMATIC REPARATIVE LITIGATION FRAMEWORK FOR STATE ATTORNEYS GENERAL The marked disparities Black people face in almost every facet of their daily lives should be heard as a call to action. But with political intervention uncertain, and direct lawsuits for reparations forestalled by justiciability barriers, how can we secure remedies for Black people that address the harms of slavery and systemic racism? This Part argues that a theory of litigation based on a broader definition of "reparations" could achieve such recompense. Section A uses the United Nations' reparations program for post-conflict states to construct a reparative framework for litigation. Section B argues that state attorneys general are uniquely situated to execute such reparative litigation, given their enhanced standing and procedural advantages in aggregated litigation. Sections C through E discuss examples of lawsuits aimed at closing three major areas of discrepancy for Black people: health, financial, and educational outcomes. A. CONSTRUCTING A REPARATIVE FRAMEWORK A look at the various elements of reparations is illustrative in deciding how to shape reparative litigation. The traditional American [*406] conception of reparations to Black people for slavery has two key components: cash payments to reconcile discrepancies in outcomes and apologies to provide spiritual repair and reconciliation. 88These are admirable and necessary goals, and Black people have waited a century-and-a-half for public opinion or political currents to shift in favor of accomplishing them. 89While money damages and apologies are certainly achievable remedies, there are broader visions of what reparations could be. This consideration is equal parts philosophical and practical. Not all harms are entirely resolved by the award of money damages. Powerful forms of equitable relief, such as consent decrees, can provide meaningful, judicially monitored remedies for large groups of people on an ongoing basis. 90By expanding our notions of what reparations can be, and how they can operate, attorneys can open more doors to reparations while still leaving money damages on the table. There is strong guidance on what an expanded view of reparations could encompass. The United Nations has found that winning reparations cases "is one way of guaranteeing that there will be a close connection between the reparations awards and other justice measures inherent in the judicial process." 91The U.N. provides a framework for five general categories of reparative remedies: compensation, restitution, rehabilitation, guarantees of non-repetition, and satisfaction. "Compensation" encompasses the economic recompense most commonly associated with reparations, suggesting they be provided for "any economically assessable damage" including "lost opportunities, loss of earnings and moral damage." 92"Restitution" is akin to our common law models of equitable relief, focusing on "restor[ ing] the victim to the original situation before the gross violations" against them through reaffirmations of personal liberties, re-establishing personal statuses such as employment, and returning [*407] property. 93"Rehabilitation" focuses on ameliorating the harms suffered by individuals through "medical and psychological care as well as legal and social services." 94"Guarantees of non-repetition" involve broad societal reform, across a variety of civic structures, to ensure that the violation of rights does not occur again. 95Finally, "satisfaction" considers matters of philosophical and moral repairs to society, such as "truth-seeking, the search for the disappeared, the recovery and reburial of remains, public apologies . . . commemoration and memorialization." 96 Attorneys should consider each of these theories of reparations when selecting cases and crafting remedies. They can do this by identifying the reparative theories that best address the disparities and harms suffered by Black people as a result of slavery and institutional racism, and shape their litigation accordingly. Admittedly, this approach undercuts a major purpose of reparations for slavery: to provide a symbolic apology and humbling of the oppressing party in hopes that the recipients of the apology can be "made whole again as American citizens." 97This has been a key aspect of legislative reparations proposals, 98and remains a worthwhile goal. Still, sacrificing apologies may provide a pragmatic benefit if more reparative suits can be won by skirting unpopular, hotbutton issues. 99While failing to provide spiritual repair, the money damages and equitable relief serve at least some reparative purposes. There are far worse outcomes, especially when such actions are positioned as an incremental piece of a larger sociopolitical strategy to provide repair for the harms of slavery. This broader, utilitarian view of reparations has been endorsed by the elected officials leading the effort to pass H.R. 40. Bill sponsor Representative Sheila Jackson Lee discussed the international origins of reparative concepts, 100and U.N. officials were in attendance at the [*408] February 2021 House Judiciary subcommittee hearing on the bill. 101Conversely, the U.N. has recognized "that the judicial resolution of individual reparations cases has often played a very important role in catalysing the willingness of Governments to establish massive reparations programmes." 102 So then, who should execute this reparative litigation scheme? Enter the state attorney general. The widely accepted parens patriae role of the attorney general positions that office to accomplish the end-goals of reparations through lawsuits that address the net effects of slavery and systemic racism. By forming their litigation slate around a reparative framework, an attorney general can obtain remedies that serve as de facto reparations, delivering much needed relief to their constituents. B. WHY THE STATE ATTORNEY GENERAL? An attorney general is the enforcer of their state's sovereign parens patriae "interest in its citizens' health, safety, and welfare." 103Attorneys general may "sue, as parens patriae, to vindicate the state's and its citizens' interests." 104While this interest extends over all citizens, attorneys general must make judicious use of their limited resources to provide the best possible protection of that interest. The continued disparities between Black and non-Black Americans make a strong case that those resources should be deployed in service to those who most need an equalizing force. 105However, attorneys general would likely face the same justiciability concerns as private litigants in suits for direct reparations. 106In addition, an elected attorney general who sued for reparations could face steep political consequences, given the general unpopularity of reparations. 107Accordingly, I propose that attorneys general use the reparative litigation framework outlined in Part II.A to reduce the discrepancies in health, economic, and educational outcomes experienced by Black people. 108 [*409] This approach would avoid public backlash against political advocacy for reparations, 109and evade justiciability barriers to direct suits for reparations. 110 These ends are well-served by the traditional consumer protection domain of the attorney general, 111which creative attorneys general have used to address systemic harms such as climate change. 112Their status as frequent litigants against the Federal Government is also helpful when considering suits against federal agencies engaging in conduct that perpetuates such disparities. 113By engaging in multistate litigation, attorneys general could pursue even those defendants with the greatest legal resources. 114While many actions that attorneys general already take serve reparative goals, this Essay proposes that choices to engage in litigation could be calibrated to maximize their reparative effects. This can be accomplished by using the reparative framework discussed in Part II.A as a guide to identify and [*410] prioritize lawsuits with reparative effects to Black people for the ongoing harms of slavery and systemic racism. Key to this litigative scheme is the fact that parens patriae principles allow attorneys general to sue on behalf of large groups of people without meeting the stringent procedural requirements placed on class action lawsuits. 115For example, where many civilian lawsuits based on this reparative framework would face procedural challenges under the Supreme Court's strict commonality requirements for class certification, 116the nature of attorneys general suits require them to "allege an injury to the citizens [they] represent[], thereby alleging issues or questions common to the group." 117Attorneys general bypass typicality challenges because "the state need not assert that it has suffered . . . damages, but may simply claim an interest in remedying the . . . injur[ies] suffered by its citizens." 118Finally, "there is no mechanism for an inquiry into the adequacy of representation in parens patriae suits," thus freeing attorneys general from the class counsel restrictions of Federal Rule of Civil Procedure 23(g). 119Because the parens patriae standing of attorneys general avoids these procedural roadblocks to aggregate reparative litigation, state litigants can more easily achieve large scale relief for widespread harm. This strategy is piecemeal in nature and could result in a patchwork of inconsistent outcomes between states. A failure to enact a broad, powerful reparations measure is certainly an undesirable result, but that is the world we already live in. Some reparative relief is better than no reparative relief. The elected nature of most attorneys general 120puts the choice directly into the hands of those who will be affected by this litigation strategy. If the people of a state want to effect a reparative litigation scheme, or improve the one they have, candidates for attorney general can market themselves accordingly. Furthermore, multistate litigation often results in settlements involving [*411] most of the country's attorneys general, meaning that the largest reparative outcomes would likely be shared by a wide majority of states. 121