A Corporate Law Rationale for Reparations

Should the United States pay reparations to African Americans? A majority of Americans object, arguing that they are not personally responsible for slavery or Jim Crow laws. Their objection is rooted in the principle of ethical individualism, which holds that people can be blamed only for their own actions. This Article contends that the ethical-individualism objection to reparations is misplaced because it assumes that what matters is the culpability of each citizen. This Article argues that like a corporation, the United States is a legal person. Consequently, seeking reparations from the United States does not turn on the guilt of its citizens any more than prosecuting a corporation turns on the guilt of its shareholders. This Article further contends that corporate law contains resources for evaluating reparations on the merits. In particular, although this Article assumes that legal claims against the United States are not justiciable, it uses the Department of Justice’s Corporate Charging Guidelines to develop a moral case for paying reparations.