Why The Case For Reparations Would Be Immediately Thrown Out Of Court

Tort law is the only meaningful system of law we have for resolving the type of issue reparations seeks to resolve, and it is categorically, legally, logically, and morally improper for addressing reparations.

Even if it sounds confusing, tort law is probably the most familiar area of law to the average American. Our incredibly litigious society lionizes tort law in newspaper headlines and Hollywood productions by sensationalizing lawsuits and the resulting jury awards.

Tort law seeks to right wrongs by restoring victims or by punishing wrongdoers. What better legal doctrine could there be to address reparations?

Tort law is used when someone sues someone else. The most common result is payment for damages. “You broke my leg. You owe me $5,000 for medical bills, plus pain and suffering!” This sounds like reparations for the victim, so let’s explore slavery reparations in the same way.

Selecting a Tort Theory

The three areas of tort law are intentional torts, negligence, and strict liability. Think of this as an attack, a slip and fall, and a dangerous consumer product, respectively. Someone can be liable for harming another person under one of these three theories, because they either intentionally, recklessly, or negligently acted badly toward the victim.

The obvious problem already is discerning which theory we could even use for reparations, with no living person intentionally, recklessly, or negligently causing harm. We usually do not hold other people liable for harm someone else has done. It wouldn’t be fair to punish your next-door neighbor on the right because your neighbor on the left egged your front door.

But vicarious liability does offer a chance to hold someone else responsible. Maybe an employer fails to control his employee, or a parent fails to control her child, resulting in some type of harm. Importantly, our legal system recognizes this vicarious liability because the third party also did some type of wrong, even if it was just carelessness. No true justice, however, could involve a truly innocent party being punished for something he had no part in.

When it comes to reparations, even vicarious liability is too strained a theory for recovery. That’s not only because it would hold someone else responsible, but because it would hold an innocent someone else responsible. Not to mention it would flip vicarious liability on its head. Instead of holding a parent responsible for her child’s damage, it would hold a child (or a great-great-great-grandchild) responsible for the sins of his ancestors.

Read the rest from Benjamin R. Dierker HERE at The Federalist.

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