Reconsidering reparations

Eric Posner's and Adrian Vermeule's essay, Reparations for Slavery and Other Historic Injustices, seeks a framework for defining reparations and evaluating reparations claims. It explores a limited set of past reparations, as well as the connections between those asked to pay reparations and past wrongdoers, and the connections between those receiving reparations and those injured in the past. Posner and Vermeule use that framework to evaluate the morality of reparations and the legal problems that arise in implementing reparations proposals. This Essay takes up the Posner-Vermeule analysis at several points. It challenges their limited definition of reparations and their limited catalog of reparations in American history. In contrast to Posner and Vermeule, who date the origin of reparations action in the United States to 1946, this Essay presents a series of legislative "reparations" throughout American history. Using that historical evidence and a "legislative model" of reparations, the Essay proposes a relaxation of the relationship between wrongdoer and payer, and injured and recipient. Then it suggests several factors for a legislature to consider in designing reparations for historical injustice. This Essay, thereby, proposes an alternative framework for evaluating the morality and utility of reparations.