If I were to report
that members of the Jewish faith living in the United States have sued Egypt
because of the benefit that country derived from the stream of tourists to the
pyramids—erroneously believed to have been built by Jewish slaves—readers would
rightly think I’d lost my mind.
Yet, analogously,
that kind of a lawsuit has from time to time been brought by Americans in
several United States federal courts. Non-slaves have sued non-slaveholders
because of the latter’s alleged benefit from Seventeenth, Eighteenth, and
Nineteenth Century slavery.
For example, several
years ago, the Washington Post reported that "descendants of black
American slaves in New York and San Francisco filed lawsuits against several
major corporations . . . contending that the companies should pay reparations
for reaping profits on the backs of people who worked without pay. * * * The
complainants argue that corporations benefited from an immoral institution and
conspired to continue profiting from slavery even after the practice was
outlawed. They seek unspecified damages."
The cultural and
political absurdity, not to mention the immorality, of these frivolous reparations
lawsuits—let alone the whole idea of reparations—has been exposed with
unanswerable logic by David Horowitz in his Uncivil Wars: The Controversy
Over Reparations For Slavery (Encounter Books), as well as by others in Horowitz’s
Front Page Magazine and elsewhere.
Yet in May 2014 the
bizarre delusion of contemporary Negro entitlement to reparations has been
again disinterred in all its collectivist/racist irrationality.
In the June 1, 2014 edition of Townhall.com Derek Hunter published an
essay with the intriguing title “There is a good case for reparations.”
Progressives
have long called for reparations—payments to blacks for the horrors of slavery.
These were routinely dismissed because they’re absurd – those who suffered the
injustice of slavery and those who perpetrated it are long dead, and most
Americans of every national origin had nothing to do with it.
But the
push for reparations truly never was about slavery, it’s about redistribution
of wealth and perpetrating the victimhood mentality that keeps people voting
for progressives. * * *
Enter The
Atlantic [magazine]. Writer
Ta-Nehisi Coates has brought the issue back to the forefront of progressives’
minds and set a debate raging on MSNBC. * * *
Coates’
article, “The Case for Reparations: Two hundred fifty years of slavery.
Ninety years of Jim Crow. Sixty years of separate but equal. Thirty-five years
of racist housing policy. Until we reckon with our compounding moral debts,
America will never be whole,” lays out a series of damning government policies
and actions that directly harmed, if not targeted, black Americans and held
them back economically.
The
specific claims of Coates have been refuted by people much smarter than I, and I suggest you read the original article and the rebuttals to form your own
conclusion. But if progressives are interested in reparations for past wrongs,
they should target those who perpetrated them – the Democratic Party.
The
Democratic Party was the party of slavery. It gained power from it, profited
from it, and fought to keep it.
Jim
Crow was the spawn of racist Democrats who, angry they could no longer own
slaves, set about creating a series of laws, both on the books and off, to deny
blacks the dignity they deserved and their rights as full citizens.
It was
Democrats who pioneered “separate but equal,” standing in schoolhouse doors to
keep out children who only wanted to learn without having to travel miles to an
inferior “black school.”
It was
Democrats who, through Fannie Mae and Freddie Mac, instituted mortgage policies
that led directly to the housing market crash and record foreclosures in black
communities.
It was
Democrats who, through a continual string of lies, promised to right the wrongs
their policies caused, only to make them worse. Their legislative and
regulatory actions created a permanence to government dependence, trapping
generations in poverty and a feeling of hopelessness.
Detroit,
Baltimore, Chicago, and every major city with a large black population is in or
on the verge of financial and social bankruptcy. Vacant lots, abandoned houses,
rampant drug dealing and use, gang violence, massive job losses, astronomical
crime rates, failed social and governmental services—all are staples of these
cities, as is generations of Democratic political leadership. They aren’t
mutually exclusive.
There’s
a lot of power in telling people they’re powerless, but that you’ll help them.
If you convince people they can’t get ahead, that the system, as progressive
Sen. Elizabeth Warren, D-Mass., put it in her 2012 convention speech, “is
rigged” against them, many will believe you. If you convince people they are
victims of discrimination, be it from skin color or the economics in which they
were born, then normal failures in life—such as not getting a job you want—are
not chalked up to someone being a better fit or you simply not being the best
candidate, but to that “rigged” system. That deflates the human spirit, kills
aspiration, and perpetuates the cycle.
There
is no power in empowering others. But there is a lot in the opposite. And it is
the opposite in which the Democratic Party, led by progressives, lives, and has
always lived. They couch their actions in the vernacular of liberty—freeing
people from “job lock,” for example—but the results are always the same.
Government can’t grant you liberty; you’re born with it, government can only
infringe upon it. People who take the bait don’t realize they’ve swallowed the
hook too.
Reparations are in order, but they should
not be sought from the government—it was only the conduit through which
oppression was carried out. They should be sought from the source of that
oppression, its originators and perpetrators to this day—the Democratic Party. (Holzer’s emphasis.)
Obviously, that’s not going to happen. The Progressives’ lawyers are not
going to target their political benefactors. They’re going to attack our
deep-pocket Uncle Sugar.
What has not been
addressed about reparations in popular discourse, however, is the fact that
these cases, legally, are baseless. As a constitutional and appellate
lawyer for some fifty-five years, I can tell you that these reparations cases
are frivolous in the extreme. As such, those who have brought these cases, and
those who would do so in the future, should suffer serious consequences.
Rule 11 of the
Federal Rules of Civil Procedure (and comparable provisions in state law)
establishes certain standards that lawyers and their clients must comply
with whenever they bring a lawsuit. Most non-lawyers are unaware that Rule 11
provides for sanctions if those standards are violated.
The statutory
language aimed at baseless lawsuits is clear cut: "By presenting to the
court [any] paper, an attorney . . . is certifying that to the best of the
person’s knowledge, information, and belief, formed after an inquiry reasonable
under the circumstances, –
1.
It [the paper] is not being presented for any improper purpose . . . . [Rule 11(b) (1)];
2. The
claims . . . and other legal contentions therein are warranted by existing law
or by a non-frivolous argument for the extension, modification, or reversal of
existing law or the establishment of new law [Rule 11(b)(2)];
3. he
allegations and other factual contentions have evidentiary support or, if
specifically so identified, are likely to have evidentiary support after a
reasonable opportunity for further investigation or discovery . . . . [Rule
11(b) (3)].”
In sum, Section (1)
requires a proper motive, Section (2) requires some basis in law, and
Section (3) requires present or reasonably anticipated factual support.
If any one of
these requirements are violated, the culpable lawyers, law firms, or parties
can be sanctioned by the court. Subject to certain limitations, the sanctions
can be monetary in order "to deter repetition of such conduct by others
similarly situated." And the monetary sanctions can be substantial.
As a predicate to the
analysis that follows, it needs to be understood that the purpose of legitimate
civil litigation is to resolve actual disputes between individuals
and/or entities arising out of conduct deemed by the law to violate recognized rights (whether those rights
have been created by common law, through the enactment of statutes, or by
federal or state constitutions). Except in actions to declare the rights of
parties (e.g., who owns a disputed painting), proof of damages is essential.
Most serious people
know what legitimate civil litigation is supposed
to accomplish. Given the purpose of proper civil litigation, let’s zero in on
the motive for reparations litigation.
For proof that
reparations litigation is not properly motivated, we need only read a
March 31, 2002 article in The New York Times by Harvard Law School
Professor Charles J. Ogletree, Jr., co-chairman of the so-called Reparations
Coordinating Committee. Among other things, Ogletree wrote that:
Bringing the government into [reparations] litigation will .
. . generate a public debate on slavery and the role its legacy
continues to play in our society. The opportunity to use expert witnesses and
conduct extensive discovery, to get facts and documentation, makes the
courtroom an ideal venue for this debate. A full and deep conversation on
slavery and its legacy has never taken place in America; reparations litigation
will show what slavery meant, how it was profitable and how it has continued to
affect the opportunities of millions of black Americans. Litigation is required
to promote this discussion because political accountability has not been
forthcoming.
Translation: Because
Mr. Ogletree’s and his comrades’ political agenda has not been as successful as
they would have liked, because their naked purpose is to subvert the proper
function of civil litigation in order to stir up a national debate about slavery and
reparations, he and his political bedfellows shifted their activism from an
openly political forum—where, for
example, from 1989 to 2013 Democrat Party House of Representatives member John
Conyers introduced a bill to study slavery reparations, only to see it die each
time—to the jurisdiction of the federal courts.
This is a clear
violation of Rule 11(b) (1).
As for the Rule 11(b)
(2) requirement that the complaint in a lawsuit have some basis in law, let’s
be clear about the statute’s intention. The only relevant Rule 11 question is: Can what the plaintiff is complaining about
be legally redressed? In other words, a jilted woman cannot successfully sue
her ex-boyfriend because the law does not recognize jilting as legally actionable
conduct, no matter how impolite or even cruel. For this reason, then,
reparations litigation complaints fail miserably in more ways than there is
space here to deal with. I’ll spell out just four major deficiencies:
· There are no
legitimate plaintiffs.
The reparations lawsuits have been bought by people who were not slaves, and
thus have no grievances. Indeed, in one case the plaintiffs admitted that they were
only descendants of slaves. Even if they could prove that allegation (which is
virtually impossible), they had no legal standing to complain about what
happened to others—even distant relatives—over a century ago.
· There is no
cognizable legal claim. Apart from the undeniable fact—as reprehensible as it was—that
slavery was a legal institution, not since the inception of this country has
there been what we lawyers call a recognized civil "cause of action"
(e.g. trespass, breach of contract, assault and battery) for slavery, or for
anything even remotely connected with that obscene practice.
· There are no
legitimate defendants. The reparations movement has sued today’s railroads, banks,
insurance companies, and the like. Putting aside whether these entities or
their predecessors even existed while slavery held sway, there is not, nor can
there ever be, the requisite causal connection between the acts of ante-bellum
entities (e.g., lending money to slaveholding plantations) and today’s
defendants.
· There are no provable
damages. If
the concept of causality has any meaning, today’s reparations plaintiffs cannot
prove they suffered any damages from the conduct of anyone over a
century ago, let alone by the named defendants.
Given these fatal
flaws in reparations litigation complaints, it is not necessary to examine
other problems those cases would suffer even if they survived predictable
motions to dismiss, notably defenses such as the then-legality of slavery,
statutes of limitations, and the constitutionality of retroactive liability.
Clearly, Rule 11(b) (2) has been violated.
Finally, Rule 11(b) (3),
which is directly connected to Rule 11(b) (2), requires factual support
for a complaint’s allegations. Yet,
·
There
is not a shred of factual support that any reparations litigation plaintiff has
a personal stake in his or her case.
·
There
is not a shred of factual support that anything legally actionable was done.
·
There
is not a shred of factual support that any defendant did anything—actionable or
not —to any plaintiff.
·
There
is not a shred of factual support that any reparations litigation plaintiff
suffered any damages.
·
There
is not a shred of factual support that even if the plaintiff, the defendant, and
the cause of action requirements of a non-frivolous complaint were satisfied, a
case would survive the statute of limitations—whatever that might be after some
150 years.
Rule 11(b) (3), like
the other two sections, has been violated.
If ever the imposition
of sanctions under Rule 11 were warranted, it is in the reparations litigation.
These ersatz plaintiffs should be ordered to pay sizeable sums for their
frivolous abuse of our rules of civil procedure.
It should be noted
that there is much more at stake here than safeguarding the integrity of our
civil justice system. It is important for us to prevent race hustlers from
enlisting the judicial process in a campaign of extortion, one that long ago
infected our political and economic system.
At stake, as well, is
the integrity of our federal judges. They must recognize frivolous reparations
litigation for the extortion it is and reject the reparation movement’s
insidious attempt to induce, and capitalize on, collective guilt.
During the Civil War
and its aftermath, and in the wounds that continue to divide Americans today,
our nation has paid many times over the price that those in the reparations
movement seek to exact from American citizens and taxpayers in frivolous
lawsuits. It’s time that they be told by our courts, and by individual Americans,
that enough is too much.
