|Montréal, 7 juillet 2001 / No 85|
by Ralph Maddocks
Our southern neighbours often surprise us with their ingenuity and the ways in which they are able to devise legal methods to seek compensation for the things they do not like, or to profit from exploiting a given situation. There have been lawsuits brought against companies for damage alleged to have resulted from products which that company discontinued almost thirty years ago. Lawsuits have been brought against paint manufacturers for paint that contained lead pigment 50 years ago.
Then too we are all familiar with the numerous lawsuits launched against various tobacco companies by former smokers or by states seeking to fill their coffers. Latterly, we have even seen attempts being made to sue firearms manufacturers alleging liability for the deaths caused by firearms. Somewhere, in this farrago of lawsuits, the concept of individual responsibility has been mislaid if not irreparably lost.
The latest of these class action lawsuits being mooted is slightly different in that it seeks reparations for the descendants of those unfortunate Africans who were sold into slavery by their own tribal chieftains in Africa during the 16th to the early 19th centuries and transported to America. However, as time passes, both those accused of wrongdoing and those to whom wrong may have been done have left the scene. Surely then it makes little sense, except perhaps to the lawyers attracted by the potential to earn billions of dollars, to seek financial redress from present day governments or the descendants of those businesses who profited from such slavery 150 years ago.
It is now 138 years since the Emancipation Proclamation and 37 years since the 1964 Civil Rights Act was passed. It is thus impossible to decide fairly which of today's African-Americans should receive compensation and, more importantly who should pay for it.
It can be argued that the actual slaves themselves might be entitled to some form of financial redress, but it is equally obvious that they are no longer around to enjoy it. Is it then proper to award their great-great grandchildren compensation based upon some genetic relationship? One of the arguments raised in support of this course of action relates to the compensation awarded to survivors of the Holocaust but this has to do with people who are alive, or were until recently at least.
A second argument mentions the compensation provided to those unfortunate badly mistreated Japanese Americans as an example justifying reparations. In 1988 the US Congress awarded money to each of the
There is, however, some kind of a precedent for this which has been set by both the US and Canadian governments when they accepted as legitimate historically derived claims on behalf of groups of people who suffered injustice. Groups such as the Inuit in Canada and the Native Americans in the United States. Other precedents might be the Aborigines in Australia and the Maoris in New Zealand.
This litigious mania which sweeps through the USA from time to time can perhaps be accounted for by the fact there are more lawyers per square inch there than in any other country. There are, I am told, more lawyers in New York City than in the entire country of Japan. Thinking about it from this angle it is easy to conclude that much of this litigation may spring from fertile legal minds seeking personal enrichment. Sueing a large corporation with
Imposing liability upon institutions in conventional lawsuits may serve two useful purposes. Firstly, it may deter executive or employee misconduct by furnishing large economic incentives for those who run such institutions to avoid future liabilities. After all, company directors and executives are accountable to the shareholders for any misdeeds over which they preside. Secondly, compensating real people for real injuries occasioned by the company comes in real time and can act as a guide to future behaviour.
However, when the company is sued fifty years after an event then neither purpose is served. No executive is blessed with the ability to see what will happen decades into the future and thus that person has no incentive to create reserves to cover such contingencies and is most likely to concentrate his or her energies upon maximizing short term profits. Anyway, as mentioned earlier, it is rarely possible to compensate the real actual victim of some half century old tragedy. Many such suits, recognizing this, sue for damages in case something will happen in the future. For example, most of the asbestos claims were against the future possibility of illness not for proven actual present sickness. Similarly, the suits for damages against lead based paint manufacturers compensated few if any children because they simply could not be traced. Instead they sue to fill the coffers of various governments for cleanup programmes which may or may not be carried out.
The electors are not likely to complain if a corporation with billions of dollars in assets is obliged to give part of them to the government. Such lawsuits though amount to hugely uneconomical concealed taxes that could be raised far more efficiently by taxing the public in the normal way. Studies of asbestos and other class action suits have shown that as much as 60 cents to 70 cents of every dollar paid out by the defendants and their insurers does not go to compensation of the injured. Nor does it go to strip lead paint from buildings, but is used to pay for those legal costs which in turn to finance the lifestyles, palaces, boats and private jets of the plaintiffs' attorneys. Lawyers who take between one third and one half of any award.
In the final analysis, the costs of these actions are incurred by all of us. If the lawsuit doesn't bankrupt the company and throw thousands of people out of work, the company must inevitably find ways to raise its prices so that it may continue to operate. While US juries award outrageously large sums to plaintiffs in class action suits against corporations, they do not do so when the offender is the state itself. Juries seem to recognize that if the state is obliged to pay out large sums in damages it will only collect them from those same tax paying jurors, and collecting taxes isn't something any government will shy away from.
The billions of dollars they award happily against tobacco companies are never replicated when the case involves sueing the local police force for shooting a citizen unlawfully. Why jurors do not seem to understand that in each case the defendant somehow must recover the monies lost will probably remain an unsolved mystery. Sueing the US federal government does not always work anyway; in 1995, the Ninth Circuit affirmed that the Federal Tort Claims Act – which waives the government's
If ever a court did award African Americans the thousands of billions of dollars that would be required to compensate four hundred years of slavery then taxes would inevitably increase very dramatically, and a precedent would have been created that would undoubtedly be used by all Native Americans to demand compensation for all that land stolen by our ancestors from theirs. What would we then do? Return to our former countries and sue their present day governments for having created the economic, anti-religious or whatever conditions caused us to emigrate in the first place.
The politically correct demand for reparations is not confined to the United States, it has been raised by several African nations who, ignoring the fact that the practice of slavery continues in many of their own countries, are asking that the slave trade be declared a crime against humanity requiring substantial reparations by the former colonial powers. Two centuries after the UK Parliament abolished slavery throughout the British Empire, African nations are pushing for a wide-ranging resolution to be adopted at a conference on racism, to be held in South Africa later this year, sponsored by the United Nations. Mary Robinson, the former Irish president who is now the UN Commissioner for Human Rights, says she will support
The wording of the resolution on slavery has caused a major argument between Africa and the former colonial powers such as Britain, France, Spain and Portugal who regard the resolution simply as a ploy to extract more money. The resolution asks the conference to
The American government has gone further by threatening to withdraw aid to African countries if the conference decides to debate the issue of reparations. American diplomats say they are prepared to recognize all slavery as a crime against humanity, but want any resolution to embrace the centuries-old traffic in human beings from east and central Africa by Arab slave traders. The inclusion of the term
A recent claim for compensation was approved by New Zealand's Waitangi Tribunal – a judicial body set up to hear Maori traditional land grievances against European settlement. The proposed award is to descendants of the Morioris of the Chatham islands some 500 miles east of New Zealand. For a long time, New Zealanders clung to the belief that the Morioris were driven to the Chathams from mainland when the Maoris arrived the Pacific islands around AD 800. Today it is no longer disputed that in 1835 the Ngati Mutunga and Ngati Tama Maori tribes seized a ship in Wellington port and sailed it to the Chathams after learning that the Morioris were pacifists and would not put up a fight. A large number of Morioris were killed in the massacre that followed and the few remaining survivors were enslaved. Their lands were occupied by these warlike Maoris and by 1870 there were only 100 Morioris left.
The tribunal said that
The recommendation for compensation will now go to the government. One of the claimants, Maul Solomon, said after hearing the tribunal's ruling:
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