They say they can win a reparation lawsuit. But first they must figure out a few details: Whom to sue. On whose behalf. In what court. And on what legal theory.
Nine top class-action and civil-rights lawyers--including men who have won huge settlements against the tobacco industry and the maker of the fen-phen diet drugs--have met several times over the last few months to plot strategy.
They face several challenges.
First, there's the statute of limitations. Slavery ended 135 years ago. The most egregious laws oppressing free blacks, such as voter tests that denied them the ballot, were repealed decades ago. However, Congress could waive the statute of limitations. It did for the lawsuit filed on behalf of black farmers who had been denied loans by the U.S. Department of Agriculture. Lawyers also could argue that slavery and segregation should be exempt from time limits because they are crimes against humanity. That approach worked for Nazi slave laborers forced to toil for German firms during World War II.
Lawyer Alexander Pires, who represented the black farmers, asserts that the plaintiffs in any reparation case simply would be "black America."
But his colleagues are struggling to parse that phrase.
Should they sue on behalf of living blacks who were denied specific opportunities, such as a mortgage or higher education? Or on behalf of the black underclass, which arguably suffers most from the legacy of slavery? Should they include only African Americans who can trace their ancestry to slaves?
Identifying defendants is tricky as well. The federal government is an obvious target. So are states that enacted laws designed to harm blacks. But most suits against the government require a specific defendant be named--and the people who enacted and enforced the worst laws are long dead.
Other possible defendants include corporations or private individuals who profited from slavery. The Hartford Courant newspaper in Connecticut, for example, ran wanted ads for runaway slaves.
As for the legal underpinning of a suit, the U.S. 9th Circuit Court of Appeals in 1995 dismissed a suit by several blacks who demanded reparations for slavery and the prejudice it fostered. The court found no legal theory to back up their claim and said such grievances should be brought to Congress.
To get around that precedent, Pires and company are considering a straightforward breach-of-contract suit alleging the government broke its promise to give each freed black 40 acres and a mule. Or several suits alleging specific civil-rights violations stretching back to the Jim Crow era.
In the end, the legal strategy may not be as important as the public relations campaign. With enough pressure, Pires predicted, Congress will approve reparations.