If I were to
suggest that members of the Jewish faith living in the United States should
consider suing the nation of Egypt because of the benefit it has derived for
centuries from long-ago enslavement of Jews, readers would rightly think I’d
lost my mind.
Yet today
here comes Richard North Patterson—lawyer, bestselling author, political
functionary and elite Washingtonian—to remind us that
the stark reality is that America’s grappling with race is
far from done. As the distinguished conservative commentator Charles
Krauthammer wrote: “The African-American case is unique. There is nothing to
compare with centuries of state-sponsored slavery followed by a century of
state sponsored discrimination.” Contemporary Americans, [Patterson says Krauthammer]
asserted, were still bound by this dynamic: “Even when guiltless we remain collectively responsible for our nation’s
past.”
The emphasis
is mine, highlighting the obeisance paid to the gods of statism and collectivism
by Patterson and, sadly, the late Charles Krauthammer (who should have known
better.) Even if we’re guiltless, we’re responsible! How’s that for a moral,
religious, constitutional and legal principle?
Increasingly,
Patterson has more and more company cavorting in the reparations follies.
Patterson reports that presidential-candidate Senator Cory Booker and
Representative Sheila Jackson Lee “have now called for a commission on
reparations to, as Booker puts it, ‘bring together the best minds to study the
issue and propose solutions that will finally begin to right the economic
scales of past times’.”
Memo to
Mr. Booker and Ms Lee: the “best minds” already know today’s reparations enterprise
is merely another Jackson-Sharpton-type guilt-scam designed and effectuated to
snare unnecessarily guilty whites and other Americans who had nothing to do
with slavery. (For the record: Nor did I!)
Some brief history
will remind Booker, Lee and their allies of what happened last time the
reparations scheme was tried, and look at the law will inform them why any
reparations case is doomed.
Back in the
day, reparations lawsuits were brought in at least four United States federal
courts. Non-slaves sued non-slaveholders because of the latter’s alleged
benefit from Seventeenth, Eighteenth, and Nineteenth Century slavery.
At the time, 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 those 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), and
there is no need to repeat here Mr. Horowitz’s devastating deconstruction of
the entire reparations enterprise.
What has not been addressed, however, is the fact that reparation
lawsuits, are legally, baseless. They are frivolous in the extreme. As
such, anyone who brings such cases risks 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. 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.
that [the paper] is not being
presented for any improper purpose . . . . [Rule 11(b)(1)]; and
2.
the claims . . . and other legal
contentions therein are warranted by existing law or by a nonfrivolous argument
for the extension, modification, or reversal of existing law or the
establishment of new law [Rule 11(b)(2)]; and
3. the 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 provisions are violated, the
culpable lawyers, law firms, and/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 following analysis it needs to be
understood that the purpose of 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, or through the enactment
of statutes). Proof of damages is essential, except in actions to declare the
rights of parties (e.g., who owns a disputed painting).
Most observers know what civil litigation is supposed to accomplish, so 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 then 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. (My emphasis.)
Translation: Because Mr. Ogletree’s political agenda was unsuccessful,
because his naked purpose was 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
ever since 1989, the late Representative John Conyers introduced a bill to
study slavery reparations, only to see it die each time—to the venue of the
federal courts.
Moreover, and more important, America had a very costly “full
and deep conversation on slavery.”
It is called
the Civil War.
Ogletree’s motive was a clear violation of Rule 11(b)(1).
As for Rule 11(b)(2)’s requirement that the complaint in a
lawsuit have some basis in law, let’s be clear about the statute’s intention.
The only relevant question is: Can what the plaintiff is complaining about be
legally redressed? In other words, a jilted woman cannot sue her ex-boyfriend for
jilting her because the law does not recognize ungentlemanly conduct as legally
actionable conduct. On this score, 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:
o There
are no legitimate plaintiffs.
Reparations lawsuits have been bought and threatened today by people who were
not themselves slaves, and thus have no grievances. Indeed, in one case, the
plaintiffs were described as descendants of slaves. Even if they could prove they
were descendants (which is well-nigh impossible), they would have no legal
standing to complain about what happened to others—even their relatives—centuries
ago.
o There
is no cognizable legal claim.
Apart from the undeniable fact— as reprehensible as it was— that pre-Civil War 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.
o There
are no legitimate defendants.
Back in the day, the reparations enterprise sued railroads, banks, insurance
companies, and the like. Putting aside whether these entities or their
predecessors even existed while slavery existed, there never was, nor can there
ever be, the requisite causal connection between the acts of those entities
(e.g., lending money to slaveholding plantations) and today’s plaintiffs (e.g.,
alleged descendants of slaves).
o
There are no provable damages. If the concept of legal causality has any meaning, today’s
reparations plaintiffs could not prove they suffered any damages
from the conduct of companies over a century ago, let alone from whomever would
be the named defendants.
Given these fatal flaws in reparations litigation complaints
generally, it is not necessary to examine other problems those cases would
suffer from even if they survived predictable motions to dismiss them—notably,
defenses such as the legality of slavery, statutes of limitations, and the
constitutionality of retroactive liability. Clearly, Rule 11(b)(2) would be
violated.
Finally, Rule 11(b)(3), which is directly connected to Rule
11(b)(2), requires factual support for a complaint’s allegations. Accordingly,
there could not be a shred of factual support that:
o Any
potential reparations litigation plaintiff would have the requisite personal
stake in the outcome of such a case.
o Anything
legally actionable was done.
o Any
would-be defendant did anything—actionable or not—to any plaintiff
Any reparations litigation plaintiff could have suffered any damages.
Any reparations litigation plaintiff could have suffered any damages.
Even if the plaintiffs, the defendants, and the cause of
action requirements of a nonfrivolous complaint were satisfied, no case would
survive the expired statutes of limitations after the passing of centuries.
Rule 11(b)(3), like the other two sections, would be violated.
It has to be emphasized that there is much more at stake concerning
reparations lawsuits than safeguarding the integrity of our civil justice
system. It is important for us to prevent race hustlers like Jackson, Sharpton,
and some of the current democrat presidential candidates from enlisting the
judicial process in a campaign of extortion, one that has already infected our
political and economic system. At stake, as well, is the integrity of our
federal judges. They must recognize reparations litigation for what it is and
reject its insidious attempt to induce, and capitalize on, undeserved collective
guilt.
In the Civil War and its aftermath and in the wounds that
continue to divide Americans today, our Nation in many ways—not often fair to
those of us who are innocent—has paid many times over the reparations the race
hustlers then wanted, and their successors want today: Extracting through moral
extortion from innocent Americans through dubious legislation and baseless
lawsuits undeserved money and other entitlements.
It is time that the likes of Jackson, Sharpton, Sanders,
Booker, Lee and the countless others who have jumped on the
statist-collectivist reparations bandwagon be told by our legislators, courts,
and individual Americans that enough is enough. That we the innocent reject the
pernicious idea that “even when guiltless
we remain collectively responsible for our nation’s past.”
