Causation and Attenuation in the Slavery Reparations Debate


Recent discussions of reparations have noted the difficulty reparations advocates have in showing causation. Criticisms of reparations have focused on the attenuated nature of the harm, suggesting that modern claimants are not connected to slaves, that modern payers are not connected to slave owners, and that modern disadvantages cannot be connected to slavery.

This Article examines attenuation concerns and finds that they come in three related but distinct varieties: Victim attenuation, wrongdoer attenuation, and act attenuation. These three components, defined in this Article, show themselves in a number of interrelated legal and moral arguments. They have important strategic consequences, and operate together to create a formidable obstacle for reparations.

This Article then discusses how ideas on causation from the mass tort context can address legal problems of attenuation in reparations. Mass tort cases have developed novel methods of showing causation, such as statistical evidence, and these tools can be used in the reparations context. By using the tools of mass torts, it is possible for reparations advocates to show causation.


Civil Rights and Discrimination | Torts

Date of this Version

August 2004