Thursday, May 25, 2017

Kyle D. Logue

Abstract of: Kyle D. Logue, Reparations as Redistribution, 84 Boston University Law Review 1319-1374, 1319-1324 ( December 2004) (160 Footnotes Omitted)

The most controversial, and most intriguing, remedy sought by proponents of slavery reparations involves massive redistribution of wealth from whites to blacks within the United States. This is not to say that reparations proponents have focused only on racial redistribution. Some have called for an official apology from the U.S. government. Others seek the creation of a foundation or institute, funded by U.S. tax dollars, to be devoted to furthering the interests of African Americans, including the funding of K-12 educational programs for black children and the funding of general civil rights advocacy to counteract the lingering effects of racism in American society. In a relatively new twist, some state governments have passed laws requiring companies to disclose the extent to which they or their predecessor companies were involved in or benefited from the practice of slavery; and some local governments - notably, Chicago, Los Angeles, and Detroit - have adopted ordinances requiring companies seeking to do business with the city's government to disclose any profits they received from slavery. A similar slavery "accounting" was also one of the remedies sought in the recent lawsuits brought by slavery descendants against corporations alleged to have historical ties to slavery. Nevertheless, at the core of most slavery reparations proposals are calls for either cash or in-kind transfers from whites to blacks. Such redistributive programs will be the focus of this Article.

Broad-based racial redistribution would, according to proponents, provide a measure of compensation to the present generation and perhaps to future generations of African Americans for the harms caused by slavery, including the many years of unpaid slave labor. Furthermore, a white-to-black redistributive transfer would reduce the colossal inequality of resources between whites and blacks in America. Given the historic scope of the injustice slavery represents, the potential size of a fully "reparative" transfer could be astronomical. Although most slavery reparations proponents decline to suggest specific dollar estimates of the appropriate transfer, some are willing to venture a guess. One researcher, for example, focusing on a stolen-labor measure of harm and using 1790-1860 slave prices as proxies for the value of unpaid slave labor, calculated a sum of between $448 billion and $995 billion, which in 2003 dollars would be approximately between $2 trillion and $4 trillion. By comparison, the entire U.S. government budget in 2004 is projected to be just over $2 trillion. More recently, taking a different approach to assessing the social harm associated with slavery, sociologist Dalton Conley suggested that if all of the present wealth gap between African Americans and whites were attributed to the institution of slavery and related injustices, a one-time transfer of 13 percent of existing white wealth would be necessary to eliminate the black-white wealth disparity entirely. Alternatively, Conley suggested that a better approach might be to determine what fraction of existing household wealth is attributable to inheritance from prior generations, and to use that number to determine the extent to which current levels of black household wealth lag behind those of whites because of slavery. Following that approach, Conley arrived at a more modest one-time tax of 3.7 percent of white household wealth to be distributed among African Americans.

Only the most radical reparations supporters would regard such a massive wealth transfer as desirable, and few people - perhaps none - would regard it as politically plausible. Putting aside the discussion as to amount, the idea itself of a transfer of resources from whites to blacks is intriguing. What would such a transfer even look like? Perhaps the most obvious and most controversial possibility would be a program of direct cash transfers to African American taxpayers funded by federal tax revenues or, as suggested above, by some special tax on whites. Indeed such a system is what many slavery reparations proponents seem to have in mind. That type of racially redistributive cash transfer, however, is not the only possibility. Once we broaden the notion of what counts as a program of redistribution, it becomes clear that we already engage in some degree of racial (white-to-black) redistribution, some of which is controversial and some of which, apparently, is not. Thus, for example, affirmative-action programs can be seen as a prominent real-world example of an explicitly race-based in-kind transfer from whites (and Asian Americans) to blacks (and some other racial and ethnic groups, such as Native Americans). Moreover, even transfers that are not explicitly race-based can be understood as a form of redistribution by race. For example, because blacks are overrepresented in most inner-city metropolitan areas, any federal or state spending programs that primarily benefit the inner city, but that are funded by general tax revenues would have a racially redistributive effect. Even certain types of anti-discrimination law can be seen as having a racially redistributive component, insofar as it such laws result in racial cross-subsidization of blacks by whites. An example of this would be laws against racial discrimination in insurance underwriting. The point here is that broad-based racial redistribution, from all or almost all whites to all or almost all blacks, can take many forms. One of the lessons of this Article will be that all of these various program-design issues must be taken into account by those calling for slavery reparations in the form of white-to-black redistribution.

My main argument is straightforward. First, I contend that some level of redistribution from whites to blacks - whether paid in-cash or in-kind, whether explicitly race-based or only implicitly so, and whether labeled reparations or something else - can be defended on fairly intuitive and straightforward distributive justice grounds. The idea is that, according to every empirical study of the issue, African Americans are on average significantly less well off than whites. Moreover, the inequality extends to almost every conceivable measure of well-being - income, wealth, education, employment, health, housing, even life expectancy. Given this fact, and given especially this country's history of slavery and segregation, it is not difficult to argue that the government ought to spend some resources to reduce that inequality. Although the conclusion is not especially new, the distributive justice angle has been largely overlooked in discussion of slavery reparations. Second, I argue that any program to effect racial redistribution or reduce racial inequality - again, whether labeled reparations or not - should be informed by the basic lessons of public finance economics, a field that has long been devoted to the problem of designing real-world distributional programs. Drawing on that literature, I point out that the concept of race has three qualities that make it a surprisingly useful tool, at least in theory, for implementing an egalitarian vision of distributive justice: (a) race is one of the best predictors of, or proxies for, overall social and economic well-being; (b) unlike redistribution with respect to other proxies for well-being, such as redistribution with respect to income or wealth, redistribution on the basis of race will not cause labor-market distortions, because race is relatively immutable; and (c) race is relatively observable. For all of these reasons, redistribution on the basis of race, at least in theory, has the properties of a distributively just lump-sum transfer program. Third, although I do not here endorse any particular racially redistributive program, I point out the costs and benefits of several alternative forms that programs of racial redistribution might, and in some cases already do, take. Included in that discussion are direct cash transfers from whites to blacks (perhaps administered through the federal tax system), which would probably be unconstitutional but which provides an interesting point of comparison. I also discuss a range of in-kind redistributive programs, from race-based affirmative-action programs to federal funding of urban housing and educational programs to certain types of anti-discrimination law, all of which may be constitutional, depending on their particular design details. One point of emphasis in the Article is that, although redistributing explicitly on the basis of race may have certain advantages, such as the absence of labor distortions that accompany income or wealth redistribution and the increased precision of the redistributive transfers, there are disadvantages that have to be considered as well, such as the difficulty of defining and policing racial categories for the purpose of administering a redistributive program. In addition, it may ultimately be that there are other proxies for well-being besides race (such as geography) that can be used to produce a distributively-just lump sum transfer, but those systems will inevitably have drawbacks as well.

Before launching into my primary argument regarding the use of race in redistributive programs, I should point out that my focus on reparations as redistribution is a departure from the general thrust of the slavery reparations literature. Instead, most reparations scholars and activists view reparations as an issue of corrective justice, of rectifying a historic wrong. That vision of reparations, insofar as it builds on the notion of corrective justice that is employed in the private law context, is derived from an analogy to tort law, which says that if person A wrongfully harms person B, A must pay compensation to B. That view of slavery reparations has considerable appeal. Much, probably most, of the inequality between blacks and whites today, which I describe in some detail below, is doubtless attributable directly or indirectly to the historical injustices of slavery, Jim Crow, and subsequent discrimination. And it is certainly understandable that reparations proponents would seek to link racial redistribution directly with those past injustices. To ignore that link would itself be an injustice, as well as perhaps a tactical political (and perhaps legal) error. Nevertheless, because of the amount of time that has elapsed since the end of slavery and the difficulty of assigning blame today for what happened hundreds of years ago, a program of slavery reparations that involved large-scale redistributive transfers from whites to blacks would not fit neatly within the conceptual category of corrective justice. Again, I am not arguing for ignoring the past. To the contrary, as will become clear, my distributive justice argument has an important historical component. Rather, my primary argument is that whether and how society ought to structure a slavery reparations program depends on what such a program is expected to achieve. The goal of slavery reparations - whether it is to achieve distributive justice by reducing the substantial inequalities between whites and blacks, or to achieve corrective justice, which requires identifying specific wrongdoers and assigning them blame for the harms caused by slavery - will have important implications for the design of the program.

The Article proceeds as follows. Part I describes the private-law roots of corrective justice and explains how the move from paradigmatic private-law setting (the simple tort or contract case) to group-based harm saps the intuitive strength of the corrective justice rationale. Building on this conclusion, Part I then points out some of the conceptual and practical difficulties with applying the corrective justice rationale to slavery reparations that take the form of broad-based transfers from whites to blacks. Next, Part II argues that some level of white-to-black racial redistribution can be justified on the basis of a modest (and fairly conservative) version of egalitarian distributive justice, although I make no claim as to the appropriate amount. Part III emphasizes the lump-sum (and therefore relatively efficient) nature of racial redistribution, discusses some of the alternative forms that racial redistribution might take, and highlights some of the costs and benefits of those alternatives. The final section in Part III also responds to some of the most obvious objections to the idea of racial redistribution of any kind. As I conclude there, it may well be that the expressive or political problems associated with racial redistribution - such as the hostility that might be created among non-black citizens who would be required to pay the cost of the program and the expressive harms experienced by blacks who regard the program as demeaning - would outweigh the social benefits of such a program. That is an issue, I argue, for voters to decide. Indeed, insofar as government programs that implicitly engage in racial redistribution already exist, the voters have already decided. The question is whether more, or less, should be done. Part IV then concludes.



[1]. Professor of Law, University of Michigan Law School.

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