Thursday, June 12, 2014

Racial Reparations: Guilt by non-association

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 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.