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Enslavement, Racial Inequality and Making Victims Whole

Paper Session

Friday, Jan. 3, 2020 2:30 PM - 4:30 PM (PDT)

Manchester Grand Hyatt, Marina
Hosted By: National Association of Forensic Economics & National Economic Association
  • Chair: Jerome S. Paige, Jerome S. Paige & Associates

Compensating Versus Making One Whole

Charles Betsey
,
Howard University

Abstract

The author examines whether current forensic economic methodology replicates past and present discrimination in the award of economic damages. In Jones & Laughlin Steel Corp. v. Pfeifer, the U.S. Supreme Court indicated that an important goal of economic damages calculations is “to put the plaintiff in the position he would have been in if not injured.” Standard practice in the field of forensic economics is to measure lost earning capacity in terms of evidence of actual earnings in the past and likely future earnings of the individual or others with similar characteristics. To the extent that past and future earnings reflect discriminatory treatment on the basis of race, gender, or other factors, an award for economic damages based on such measures, while appropriate on accepted methodological grounds, will replicate past discriminatory patterns. We explore the implications of this phenomenon and alternative considerations that might be employed in calculating economic damages.

CARICOM: Unjust Enrichment and the Case for Restitution

Richard America
,
Georgetown University

Abstract

Europe and North America have realized a super accumulation of “unjust enrichment,” which today is embedded in every asset class in these regions. After introducing the concept of “unjust enrichment,” the case is made for how unjust enrichment was attained. Drawing on economic development studies, a method of calculation of damages is presented. Using this method, a basis for restitution is established and program to carry out that restitution is suggested. This approach does not include any payment for non-economic damages like pain and suffering, or for crimes against humanity in slavery, the slave trade, or other forms of international criminal conduct. The approach only aims to recapture, recover, recoup, reclaim, reacquire the economic damages based on the benefits derived from unjust enrichment

From Here to Equality: A Framework for Restitution for Black Descendants of American Slavery

William Darity Jr.
,
Duke University
Kirsten Mullen
,
Artefactual

Abstract

This paper chronicles the story of the “unmet black reparations” that got its start with the legitimate expectations of the formerly enslaved that they would receive tracts of land and farm implements (“40 acres and a mule”) in the immediate aftermath of the Civil War. The reasons for the cyclical swings in the attention given to reparations by black Americans and America as a whole are examined, with a particular emphasis on the most recent developments. The paper also details how an actual reparations plan might be designed and enacted, in light of the evolution of thought about restitution for black Americans over the past 150 years, details which include an assessment of the potential of H.R.40 and S.1083 to meet the expectations of blacks for reparations. Consequently, a critical analysis is undertaken on the form and role of the proposed “Commission to Study and Develop Reparation Proposals for African Americans” and how an actual reparations program could be advanced in the Commission’s report. The analysis includes: how the size of the “reparations bill” might be determined; how the program might be administered; how the goals and guideposts for the success of the program can be established; how the funds from the reparations program might be allocated; and how the reparations bill might be financed. An argument is made that the reparations of black Americans are entirely feasible, at least in principle.
Discussant(s)
Sibylle Scholz
,
Forensic Economist
Dania V. Francis
,
University of Massachusetts-Amherst
Jerome S. Paige
,
Jerome S. Paige & Associates
JEL Classifications
  • K1 - Basic Areas of Law