An Excellent Analysis Of The Problem

[_Coggins7]

Holzer here adds some meat to the bones Horowitz has articulated as fundamental propositions in his basic statement on reparations.


The Achilles' Heel of the Reparations Lawsuits
By Henry Mark Holzer
FrontPageMagazine.com | October 3, 2002



If I were to report in this column that members of the Jewish faith living in the United States have sued Egypt because of the benefit that country derives from the stream of tourists to the Pyramids — built in part by Jewish slaves — readers would rightly think I'd lost my mind.

Yet, analogously, that kind of a lawsuit has recently been brought in at least four United States federal courts. Non-slaves have sued non-slaveholders because of the latter's alleged benefit from Seventeenth, Eighteenth, and Nineteenth Century slavery.

A few weeks ago, the Washington Post reported that

[D]escendants 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 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, as well as by others in this magazine, and elsewhere. What has not been addressed, however, is the fact that these cases, legally, are baseless. Believe me — as a constitutional and appellate lawyer for some forty-three years, it is my considered judgment 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, risk 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 nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law [Rule 11(b)(2)];
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, 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 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). Except in actions to declare the rights of parties (e.g., who owns a disputed painting), proof of damages is essential.

In point of fact, everyone knows what civil litigation is supposed to accomplish.

Given this purpose for 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 political agenda has not been as successful as he would have liked, because his 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 have shifted their activism from an openly political forum — where ever since 1989, Representative John Conyers has introduced a bill to study slavery reparations, only to see it die each time — to the venue of the federal courts.

This, in my considered judgment, 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 question is: Can what the plaintiff is complaining about be legally redressed? In other words, a jilted woman cannot sue her ex-boyfriend because the law does not recognize this as 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:

*

There are no legitimate plaintiffs. The reparations lawsuits have been bought by people who were not slaves, and thus have no grievances. Indeed, in a case brought a few weeks ago, the plaintiffs were described as descendants of slaves. Even if they could prove that allegation (which is well nigh impossible), they have no legal standing to complain about what happened to others — even 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 "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 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 those entities (e.g., lending money to slaveholding plantations) and today's defendants (e.g., alleged descendants of slaves).
*

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 companies over a century ago, let alone from 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 them — notably, defenses such as the 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 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 nonfrivolous complaint were satisfied, a case would survive the statute of limitations — whatever that might be after nearly 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 of money for their callous 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 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 the reparation movement's insidious attempt to induce, and capitalize on, collective guilt.

During the Civil War and its aftermath, in the wounds that continue to divide Americans today, our Nation has paid many times over the price that Mr. Ogletree and his comrades in the reparations movement seek to exact from us in baseless lawsuits. It is time that they be told by our courts, and by individual Americans, that enough is enough.

[_Sam Harris]

Have you personally been affected by this?

Why are you focusing on black people, if you are not a bigot, Loran?

Why this issue? How has it harmed you?

This is from '02. Find me something from TODAY that says that this is still an issue.

[_Coggins7]

Have you personally been affected by this?

Why are you focusing on black people, if you are not a bigot, Loran?

Why this issue? How has it harmed you?

This is from '02. Find me something from TODAY that says that this is still an issue.

Why I'm even responding to this, I have no earthly idea. However:

1. The entire culture and its political, economic, and social institutions are affected by this. Hence, I am or will be affected by it at some point, either directly or indirectly. Any direct assault on the Constitution and the principles of the American founding are an indirect assault upon me.

2. I am not focusing on black people. You and Scratch are the only ones doing that. I have been focusing upon two issues: Affirmative Action and slavery reparations, both of which, yes, happen to be focused upon black people. I did not create that situation. The statistics on black crime and the ratio of black on white interracial crime are empirical facts. If Scratch, you or anyone else cannot handle such facts, then so be it. Again, none of this is my doing.

Your assumption that any white person who focuses on or has serious perspectives or views upon political or social issues involving black people could only come from a thoroughly racist mind GIMR. The implication is that white people can have no opinion about anything relative to black culture or politics except upon a hostile racial basis. This is, of course, at its base, a racist, or racialist assumption and attitude in and of itself. My concern with racial issues has nothing whatever to do with skin color, and everything to do with political philosophy.

3. The third question is a rephrased reformulation of the first.


4. Yes. 2002. Ancient history. Never mind.

[_Sam Harris]

Oh, it's five-year-old political philosophy. That's why you're focusing only on black people, and calling those who question you racist.

You need a hobby.

[_Coggins7]

Oh, it's five-year-old political philosophy. That's why you're focusing only on black people, and calling those who question you racist.

I've never, under any circumstances, called anyone "racist" who questioned my beliefs. I'm saying that the question you posed, as it assumed a racial animus toward blacks on no other basis than the issue was related to them or conditions within which they are a central aspect, could only itself have come from a racially prejudiced mind. The assumption that any white person who criticizes political ideologies to which blacks have some relation or points out empirical facts relating to black cultural propensities as a demographic group, is itself a racially biased preconception.

[_Mister Scratch]

Have you personally been affected by this?

Why are you focusing on black people, if you are not a bigot, Loran?

Why this issue? How has it harmed you?

This is from '02. Find me something from TODAY that says that this is still an issue.

Why I'm even responding to this, I have no earthly idea. However:

1. The entire culture and its political, economic, and social institutions are affected by this.

A bit of an overstatement, don't you think?

Hence, I am or will be affected by it at some point, either directly or indirectly. Any direct assault on the Constitution and the principles of the American founding are an indirect assault upon me.

I would be interested in seeing you elaborate upon this. How are you hurt by this, Loran? Clear, specific, concrete examples would be terrific.

2. I am not focusing on black people. You and Scratch are the only ones doing that. I have been focusing upon two issues: Affirmative Action and slavery reparations, both of which, yes, happen to be focused upon black people.

In other words, you *are* focusing on black folks.

I did not create that situation. The statistics on black crime and the ratio of black on white interracial crime are empirical facts. If Scratch, you or anyone else cannot handle such facts, then so be it. Again, none of this is my doing.

If AA and other race-related issues "harm" you "either directly or indirectly," then it makes perfect sense for us to point out that your trotting out of these racist statistics helps contribute to another set of unpleasant statistics which you have completely ignored to this point. I'm only guessing here, but, going out on a limb, I would venture to guess that your "ration of black on white interracial crime" just might have something to do with the institutionalized racism in the US justice system.

Your assumption that any white person who focuses on or has serious perspectives or views upon political or social issues involving black people could only come from a thoroughly racist mind GIMR.

Where did she ever say---or even imply---such a thing? I know that *I* have said that your uncritical trotting out of certain statistics strongly suggests that you are, at heart, a racist.

The implication is that white people can have no opinion about anything relative to black culture or politics except upon a hostile racial basis. This is, of course, at its base, a racist, or racialist assumption and attitude in and of itself. My concern with racial issues has nothing whatever to do with skin color, and everything to do with political philosophy.

What "political philosophy"? Are you joking with this? I think this goes back to a basic problem with all of your arguments, Loran, which is that you rely almost exclusively on abstraction and theory to the exclusion of concrete, lived-in reality. Your "political philosophy" vis-a-vis race is sort of pointless if it cannot deal with the realities of living in a multi-colored world.

[_Mister Scratch]

Oh, it's five-year-old political philosophy. That's why you're focusing only on black people, and calling those who question you racist.

I've never, under any circumstances, called anyone "racist" who questioned my beliefs. I'm saying that the question you posed, as it assumed a racial animus toward blacks on no other basis than the issue was related to them or conditions within which they are a central aspect, could only itself have come from a racially prejudiced mind.

No, Loran. It is easy to "assume" (actually, no assumption is necessary, since you have provided ample evidence) you are a racist, since you spout out these statistics about crimes committed by Blacks, apparently totally convinced that that stats are unquestionable, borderline gospel. What point was it you were trying to make anyways, Loran? Were you "merely" trying to demonstrate that Blacks commit more crimes on average than whites? Were you trying to portray Blacks as being more violent and prone to interracial violence, what? It seems, inescapably, that you are engaged in a racist smear campaign, my dear Coggins.

The assumption that any white person who criticizes political ideologies to which blacks have some relation or points out empirical facts relating to black cultural propensities as a demographic group, is itself a racially biased preconception.

Okay, this is not even a complete sentence (despite its length). Second, assuming that "is racist" was inserted in between "demographic group" and the comma, there are still problems with your claim. Sure, there is nothing wrong with a cracker like yourself offering up demographic statistics. There is, however, a mighty big problem with you offering up these stats in a totally uncritical, tendentious way. It's not as if you are holding up data for inquiry and scrutiny, saying, "What do these stats mean? Why do we have these problems in our culture? How might we address and work towards solving these issues?" Instead, you use the stats as a rhetorical sledgehammer, and as a crutch to support your racist views. Tell me, Loran, did it ever---even once---cross your mind that your fun interracial violence stats might be the result of institutionalized racism, or in some way the fault of white folks and the system they wrought? Or have you thought all along that this was simply a fact of life with Blacks?

[_Coggins7]

I

f AA and other race-related issues "harm" you "either directly or indirectly," then it makes perfect sense for us to point out that your trotting out of these racist statistics helps contribute to another set of unpleasant statistics which you have completely ignored to this point. I'm only guessing here, but, going out on a limb, I would venture to guess that your "ration of black on white interracial crime" just might have something to do with the institutionalized racism in the US justice system.

Its quite clear Scratch, based on the above, that at a level of intellectual resolution much above standardized, formatted can't, you're really quite incapable (if unwilling) to engage in substantive debate. As you will not accept long standing empirical facts at the table of discussion, and are quite content with the cultural Marxist mythology of "institutional racism" (a claim with no empirical or logical support) to explain the disproportionate criminality among American blacks as a group, what is there to discuss?

You explain away all statistical and empirical evidence if it does not conform to your ideological assumptions, and dismiss careful, rational arguments and observations by non-leftists--including black non-leftists--as morally suspect by definition. You have left no open space for rational discussion. As you do not seem to be able to handle facts, logic, data, sustained, close reasoning, or serious criticism of your beliefs except through a Manichean, black and white, either/or template of ideological purity in which all statements must conform to a test of political correctness before even being allowed on the table, productive dialog is, for all intents and purposes, impossible.

[_Coggins7]

No, Loran. It is easy to "assume" (actually, no assumption is necessary, since you have provided ample evidence) you are a racist, since you spout out these statistics about crimes committed by Blacks, apparently totally convinced that that stats are unquestionable, borderline gospel. What point was it you were trying to make anyways, Loran? Were you "merely" trying to demonstrate that Blacks commit more crimes on average than whites? Were you trying to portray Blacks as being more violent and prone to interracial violence, what? It seems, inescapably, that you are engaged in a racist smear campaign, my dear Coggins.

This is nothing but pure ad hominem hocus pocus, besides being a virtual textbook example of traditional leftist bigotry, bad faith and intolerance of all beliefs other than their own. This is nothing more than a adolescent rant against evidence and argument for which Scratch has no rational rebuttal or counter argument.



Quote:
The assumption that any white person who criticizes political ideologies to which blacks have some relation or points out empirical facts relating to black cultural propensities as a demographic group, is itself a racially biased preconception.

Okay, this is not even a complete sentence (despite its length). Second, assuming that "is racist" was inserted in between "demographic group" and the comma, there are still problems with your claim. Sure, there is nothing wrong with a cracker like yourself offering up demographic statistics. There is, however, a mighty big problem with you offering up these stats in a totally uncritical, tendentious way. It's not as if you are holding up data for inquiry and scrutiny, saying, "What do these stats mean? Why do we have these problems in our culture? How might we address and work towards solving these issues?" Instead, you use the stats as a rhetorical sledgehammer, and as a crutch to support your racist views. Tell me, Loran, did it ever---even once---cross your mind that your fun interracial violence stats might be the result of institutionalized racism, or in some way the fault of white folks and the system they wrought? Or have you thought all along that this was simply a fact of life with Blacks?

If you ever, ever, come up with a serious empirical refutation of the national FBI crime statistics, or a serious, philosophically mature critique of the causes of the disproportionate social pathology that plagues American blacks in a collective sense, then let me know. I could here post numerous quotes from leading black intellectuals and activists making clear that the social pathologies endemic among American blacks are primarily internal to some key aspects of black culture and have little or nothing to do with white racism, such as it actually still exists at present in any general sense. But you would just dismiss them as "lawn jockeys" and "uncle Toms" and have done with it.

That's the full extent of your intellectual abilities as thus far demonstrated.

[_Mister Scratch]

I

f AA and other race-related issues "harm" you "either directly or indirectly," then it makes perfect sense for us to point out that your trotting out of these racist statistics helps contribute to another set of unpleasant statistics which you have completely ignored to this point. I'm only guessing here, but, going out on a limb, I would venture to guess that your "ratio of black on white interracial crime" just might have something to do with the institutionalized racism in the US justice system.

Its quite clear Scratch, based on the above, that at a level of intellectual resolution much above standardized, formatted can't, you're really quite incapable (if unwilling) to engage in substantive debate. As you will not accept long standing empirical facts at the table of discussion, and are quite content with the cultural Marxist mythology of "institutional racism" (a claim with no empirical or logical support) to explain the disproportionate criminality among American blacks as a group, what is there to discuss?

That's a good question, Loran, especially since I have long been saying that I fully accept your FBI statistics. Why won't you accept the stats I've presented to you? Hmmmm.....

You explain away all statistical and empirical evidence if it does not conform to your ideological assumptions, and dismiss careful, rational arguments and observations by non-leftists--including black non-leftists--as morally suspect by definition.

No, that's not correct.

You have left no open space for rational discussion. As you do not seem to be able to handle facts, logic, data, sustained, close reasoning, or serious criticism of your beliefs except through a Manichean, black and white, either/or template of ideological purity in which all statements must conform to a test of political correctness before even being allowed on the table, productive dialog is, for all intents and purposes, impossible.

That's ridiculous. All I have asked is that one remain skeptical and open to further data. Why is it that you refused to confront the data on the disparity between arrest and conviction rates, Loran?