Corrective Justice and Reparations for Black Slavery

Over the last two decades, legal scholarship has been catching up with the more than century old calls by black Americans for reparations.1 Tax scholar Boris Bittker (in)famously launched the viability of black reparations into legal scholarship with his now classic monograph, The Case for Black Reparations.2 However, it would take more than twenty years for mainstream legal scholarship to take up the robust and wide-ranging set of questions raised by the possibility of reparations for American slavery.3 In the late 1990s private law scholars leapt into the debate, discussing unjust enrichment and torts-based models of black reparations.4 While these scholars made a variety of distinct arguments, collectively, their model rested on the contention that America had wrongfully expropriated the labor of generations of enslaved African Americans and the result had been systemic unjust enrichment, or a species of mass torts. Grounded in various conceptions of corrective justice, these models conceive black reparations as a set of claims that would be litigated through the courts. Over the ensuing two decades, the private law model has become somewhat of an outlier in reparations discussions, largely set aside in favor of broader, more explicitly political approaches.

Beyond Borders and Across Legal Traditions: The Transnationalization of Latin American Lawyers

Latin American lawyers have been usually acknowledged for their influence and involvement in the formation, organization, and functioning of the state. Since the political movements that led to the independence from the European colonial powers more than two centuries ago until today, lawyers have always been front and center in the life of every Latin American country. From their most obvious occupations as judges, advocates, and legislators, to several other less visible roles, legal professionals are both ubiquitous and important. The intensification of globalization in recent decades has inevitably affected the role of Latin American lawyers, thus compelling us to look beyond national borders. This chapter does precisely that. It examines the transnational dimension of Latin American lawyers by looking at the contributing factors that led to its development. The chapter describes some of the common traits of transnational lawyers in the region. This chapter also explores the rise of mass torts and consumer protection in Latin America, two of the most visible areas that showcase the transnationalization of legal practice. The time frame of this chapter is the last three decades, a period of important political, economic, and social developments across the region, and also for the legal professions globally. In a more general way, this chapter engages with the broader discussion about the transnationalization of law in contemporary society, and the transformation of the legal profession.

Reparations for Mass Torts Involving the United Nations

In recent years, UN peacekeepers have been accused of several mass torts causing significant injury to host populations. Using the International Law Commission’s Draft Articles on the Responsibility of International Organizations as a backdrop, this article charts the efforts taken by host populations to seek reparation for the harms they suffered and the responses of the UN to arguments about their institutional liability and the consequential obligations to afford reparation. The author argues that the misapplication of the lex specialis principle has been central to the UN’s avoidance strategies.

Reputation and the Accountability Gap

In her recent article on the reputation of international organizations (IOs), Kristina Daugirdas concludes that reputation's constraining effect has some serious shortcomings in the context of sexual exploitation and abuse (SEA). This essay extends those conclusions to recent mass torts cases against IOs. In particular, it argues that member states and IOs have independent and overlapping concerns that have contributed to devaluing the relevance of a “good reputation,” particularly when it comes to providing compensation for wrongful conduct. IOs, it seems, do not want to develop a reputation for deep pockets. Nonetheless, this essay also demonstrates that when compensation is not at issue, there are instances in which reputation matters to IOs. It concludes by discussing recent cases related to responsibility and organizational immunities and suggests that the trend of narrowing immunities may change the reputational calculus for IOs and member states significantly.

The Impropriety of Punitive Damages in Mass Torts

Punitive damages have been around for centuries in classic one-on-one tort actions and are here to stay. Mass torts, of more recent origin and not without difficulties, have matured to the point that this article is comfortable referring to most of them as traditional. Notwithstanding the legitimacy of both institutions when employed separately, loud warning signals should sound when, as with drinking and driving, they are combined. Potentially destructive mixes of punitive damages and mass torts have, unfortunately, been prevalent in traditional, fault-based mass tort actions. The difficulties are mostly administrative. Although punitive damages are conceptually compatible with fault-based mass torts, courts administer punitive awards in ways that are so capricious as to generate gross unfairness and inefficiency. And if for that reason the warning signals should be loud in connection with punitive awards in traditional mass torts, they should be downright deafening if and when courts consider awarding punitives in what this article refers to as emerging, nontraditional, enterprise-liability-based forms of mass tort.Given that these serious difficulties cannot be eliminated by marginal reforms, this article argues that punitive damages are manifestly inappropriate in, and must be eliminated from, all forms of mass tort. Of course, a broad proscription would require courts to overrule precedent in connection with traditional mass torts, and this article explains how this could be accomplished. By contrast, such a proscription would come early enough in the development of emerging forms of mass tort to nip punitive awards in the bud without the need to overrule longstanding precedent. Thus, if courts are going to eliminate punitive awards in mass torts, now is the time for them to act.