Published in vol. 84, no. 5 (December 2004) of Boston University Law Review.
Despite an initial appearance of superior doctrinal fit, restitution is not an appropriate vehicle for reparations claims based on slavery and similar large-scale historical injustices. The justifying principle behind restitution—prevention of unjust enrichment—lacks the moral force necessary to resolve a controversial public dispute about moral rights and obligations among segments of society. At its core, a claim to restitution is an attempt to right a wrong not by alleviating the adverse consequences to oneself, but by diminishing the position of others. In other words, the notion of unjust enrichment is a comparative idea that draws on resentment and the desire for retaliation, rather than the desire to be made whole. Retaliatory impulses probably are inevitable in human affairs, and if so it may be wise to include some avenues for retaliation among the legal remedies available in private disputes. In a public controversy of considerable social significance, however, resentment and retaliation should not be accommodated by law.
Date of Authorship for this Version
Reparations, Unjust enrichment, Restitution, Slavery
Sherwin, Emily, "Reparations and Unjust Enrichment" (2004). Cornell Law Faculty Publications. 6.