Academic journal article The Review of Litigation

At the Heart of the Law: Remedies for Massive Wrongs

Academic journal article The Review of Litigation

At the Heart of the Law: Remedies for Massive Wrongs

Article excerpt

It was Sir Isaac Newton who said, "To every action there is always opposed an equal reaction." Had he been a writer, he might have simply said, "To every action there is a story."

Take [this] story, for instance. It's yours. Do with it what you will. Tell it to friends. Turn it into a television movie. Forget it. But don't say in the years to come that you would have lived your life differently if only you had heard this story. You've heard it now.

Thomas King, The Truth About Stories1

What remedies are most appropriate for large-scale violations of law and human rights? A common response involves deflection away from the law: a strictly legal remedy would be impractical because it would cost too much, or the acts occurred too long ago, or the evidence is unavailable, or the perpetrators and victims are too difficult to identify.2 Therefore, we are told, we must look to political rather than legal solutions. This political focus usually means an acknowledgment of the wrong and, at best, an apology or token monetary compensation. Thus, the discussion of legal remedies is effectively precluded before it has even begun.

As a lawyer, I find this response problematic for many reasons. Most immediately, of course, is its disrespect for the victims of the most egregious conduct, and the incentive thereby created to perpetrate similar wrongs. More fundamentally, it raises questions about the legitimacy of the entire legal project, for a system capable of providing remedies only for minor violations of law, but not massive wrongs, promotes neither justice nor the rule of law.3 Instead, it is a political machine masquerading as law to preserve a status quo that accepts fundamental violations of human rights as inevitable.

My thesis, therefore, is that lawyers have an obligation to analyze large-scale wrongs primarily from a legal, not political or sociological, perspective, and to take seriously both the law itself and the remedial mechanisms it has created, even when the implications of such an approach initially appear overwhelming. The basic principles we take for granted in everyday instances of legal analysis, if they have any legitimacy, should be equally applicable to large cases: Was there a right or a duty?4 Was it violated and, if so, who is responsible? What damage accrued as a result? How can the wrong be rectified?

Preconceptions about the "practicability" of remedies cannot be allowed to preempt the analysis, and the perpetrators of the wrong should not be permitted to decide the outcome. Because this is a short, reflective essay, and because I am most familiar with the United States's history of redress (or lack thereof) for large-scale injustices, I focus here on the approach we have taken within our legal system to racially based violations of U.S. and international law. 5 Much thoughtful scholarly analysis exists, of course, on the various aspects of redress or reparations for race-based wrongs in the United States, and I do not presume to address this broad, indeed overwhelming, subject in any comprehensive manner.6

For purposes of this essay, I assume that there have been fundamental injustices that constituted violations of law-constitutional, international, or both-at the time of their occurrence and that have continuing human consequences. In any particular case, evidence of the wrong at issue must be presented, of course.7 My point is simply that, in such cases, we need to resist the temptation to leapfrog over sound legal analysis to the presumption that only political solutions are viable as a result of an unexamined belief that overwhelming disruptions to the status quo would be entailed by legal remedies of the sort routinely prescribed in smaller cases. I make this argument not because such remedies necessarily need to be implemented in every case, but because I believe that it is only by first making such legal findings that we honestly frame the debate and subsequently arrive at resolutions that-from the perspective of the victims, not just the perpetrators-adequately address the violations at issue and, therefore, preserve the integrity of our legal and political institutions. …

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