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Vanderbilt Law Review

First Page

127

Abstract

In recent years, there have been lively popular and academic debates in the United States and elsewhere about whether injustices committed decades or even centuries ago should be redressed through official apologies, commissions of inquiry, reparations, and restitution. In the American context, the historical injustices for which redress has been pursued, and in some cases granted, include the internment of Japanese Americans during World War II, the Holocaust, and the mistreatment of Native Americans. Recently, the most prominent debate in the United States has been about whether federal and state governments and corporations should pay reparations to African Americans for slavery and subsequent discrimination. Indeed, in the past few years, several major books have been published advocating reparations for African Americans, numerous law reviews have held symposia on the idea, and many stories have appeared on the subject in print and television media.

This Article examines whether there is a moral justification for redressing historical injustices, focusing on debates in the American context. Perhaps because the legal case for redressing historical injustices is often weak, many supporters of redress advance moral arguments. For example, proponents argue that redressing historical injustices is necessary to deter future wrongdoing or to promote a more just distribution of societal resources. More frequently, they emphasize the injustice of the original wrong and argue that there is a continuing obligation to correct it.

I argue that notwithstanding the prominent role that moral arguments play in these claims, it is difficult to justify redress for historical injustices in moral terms. This does not mean that redress never is morally warranted. But the difficulty of making a strong moral argument for redressing historical injustices is instructive. In particular, it helps to explain why redress has not been implemented in many instances notwithstanding extensive public debate and why, when redress has been implemented, it often has been on a relatively limited scale. In addition, the moral complexity of claims for redressing historical injustices raises a fundamental question about the value of the time and resources that have been devoted to debating the redress of historical wrongs.

This Article proceeds as follows. Part I provides some background for analyzing the moral justifiability of redressing historical injustices. It attempts to define what a historical injustice is by specifying the characteristics shared by many of the events to which the term is applied. in the United States. In addition, it discusses how claims for redressing historical injustices are advanced and the range of motivations for bringing claims and remedies requested.

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