1200 Dollars And A Mule: COVID-19, The CARES Act, And Reparations For Slavery


The COVID-19 pandemic casts into sharp relief a number of questions relating to reparations.  In particular, the COVID-19 crisis highlights the medical vulnerability of the Black community, illustrating the very real physical harm caused by slavery and racism in the United States.  At the same time, government responses to the crisis demonstrate the ability to distribute money to large swaths of Americans.  This juxtaposition makes clearer than ever the moral necessity to provide reparations today.

I. The COVID-19 Crisis and Racial Disparities

The COVID-19 pandemic has had many devastating effects.  As of August 10, there have been over 5 million cases in the United States, with about 162,000 deaths.[1]  The pandemic has created widespread economic hardship as well, with over 50 million people applying for unemployment since the crisis began.[2]

Initial data on mortality by demographic group was fractured and incomplete.  From the limited numbers available, however, it became apparent relatively early on that Black[3] communities were disproportionately affected by COVID-19.

In an editorial on April 7, 2020, Spencer Overton wrote that the CDC needed to publish COVID-19 data by race.[4]  Overton noted that “the early data suggest that the COVID-19 pandemic is hitting Black communities particularly hard” but that without official numbers, “there’s no way for the public to know” the extent of the disparity.[5]  On the same day, Niall McCarthy highlighted some regional numbers, noting that in Chicago, Blacks comprised 30 percent of the population but 69 percent of COVID-19 deaths; in Louisiana, Blacks were 32 percent of the population and more than 70 percent of deaths.[6]  Both authors suggested that the disparity might be tied to underlying disparities in rates of preexisting conditions such as diabetes, high blood pressure, and heart disease; and both called for further research.

Surgeon General Jerome Adams, a high-profile Black medical leader, mentioned the issue in a press briefing on April 10.  His comments were notable for their recognition of the racial disparities; unfortunately he then added statements shifting responsibility to individual Black and Latinx people.  “Avoid alcohol, tobacco, and drugs . . . [Do this] for your abuela . . .  Do it for your Big Mama.  Do it for your Pop-Pop.”[7]  Following a wave of criticism, Adams was removed from further public briefings about COVID-19.

On April 17, the CDC released nationwide numbers which confirmed earlier suspicions and showed that racial disparities were consistent across the country.  While the CDC numbers were only based on partial data, where racial data was available, 30 percent of COVID-19 patients were Black, while only 13 percent of the U.S. population is Black.[8]

At present there are still significant gaps in the data; detailed racial data is still only available for about half of patients.[9]  But the trend continues to hold up in general: As of August 10, where race data was available, 19.9 percent of reported cases were Blacks.[10]  And there are a number of specific places where the disparities have been eyepopping.  In Arkansas, Illinois, Louisiana, New York, Oregon, and South Carolina, Black residents are three times more likely to die of COVID-19 compared with white residents.[11]  In Wisconsin, Blacks make up 6 percent of the population but half of COVID-19 deaths.[12]  The disparity has become sufficiently large that former President Barack Obama mentioned it in his remarks to college graduates.[13]  Meanwhile some experts are worried that the numbers may be even higher, as Blacks have not had the same access to COVID-19 testing as white Americans.[14]

In addition to health disparities, Blacks are suffering disproportionate financial harm from COVID-19 and the related economic shutdowns.  This stems in part from the wealth disparity and the related ability to weather a significant financial hit: Median Black wealth is a tenth or less of median white wealth.[15]  Against this backdrop, it is not a surprise that 48 percent of Black Americans compared to 26 percent of whites said that they “cannot pay some bills” due to the COVID-19 pandemic.[16]  And of course, financial disparities can aggravate health disparities, and vice versa.

Various observers have suggested reasons for the health disparities.  For instance, a number of experts have noted that Blacks have a higher prevalence of certain health conditions, including diabetes, heart disease, and high blood pressure.[17]  It is not clear, however, that disparate outcomes are caused only by those health conditions, especially since some white COVID-19 patients with the same conditions do not have the higher rate of death.[18]  Some journalists have also noted that Blacks are overrepresented in certain populations that have seen major COVID-19 outbreaks, including incarcerated populations and people experiencing homelessness.[19]  But it is unlikely that such a wide statistical disparity over such a large population would be caused by these factors alone.

Ultimately, like Hurricane Katrina, COVID-19 is a facially neutral natural disaster whose effects have been much more strongly felt in communities whose members have been subject to sustained and systematic racial subordination.[20]

II. Responses: The CARES Act

One of the most important responses to COVID-19 was the Federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act), a $2 trillion relief bill passed on March 27, 2020.[21]  The CARES Act contained a host of provisions designed to boost the economy and support businesses and individuals.  For instance, it included stimulus payments of $1200 to most adult Americans, distributed through the IRS, with many initial payments coming through direct deposit.[22]  It also included hundreds of billions of dollars for businesses—$500 billion for larger corporations including airlines and oil companies and $370 billion for small businesses, and hundreds of billions more for local municipalities; critics have noted a lack of oversight which suggests these funds may be open to abuse.[23]

The provisions of the CARES Act were hotly debated during its drafting, with some proposals ultimately removed from the final bill.[24]  Nevertheless, there was sufficient political will to pass the bill within ten days from the first proposal; in fact, it passed the House with an unusual voice vote.

The economic impact of the CARES Act has been significant.  Prior to its passage, the stock market was in free fall, with the S&P 500 losing nearly 30 percent of its value between mid-February and mid-March of 2020.[25]  Following the passage of the CARES Act, the stock market rebounded almost to its earlier high, despite massive business shutdowns and millions of unemployed individuals.  It is a paradox that the stock market is thriving while the economy and individual Americans suffer; commenters have suggested that one major reason for the stock market rebound is the stimulus.[26]  Political leaders have discussed the possibility of follow-up bills such as the proposed Health and Economic Recovery Omnibus Emergency Solutions Act (HEROES Act).  It is likely that the federal government will continue to invest trillions of dollars—on top of additional trillions at the state and local levels—in order to mitigate some of the health and economic effects of the COVID-19 pandemic.

There have been ongoing critiques of some aspects of the logistics of the federal stimulus payments—in particular, how the structure disadvantaged lower-income people who were more likely to be unbanked.[27]  There have also been criticisms of the exclusions, which include many undocumented Americans.  Despite the critiques, the stimulus bill has been extremely popular and has been a vehicle for quickly distributing cash to almost 300 million Americans.[28]

III. Reparations and COVID-19

The COVID-19 pandemic provides a lens through which to analyze reparations.  Among other things, the COVID-19 crisis illustrates the ongoing health disparities in the Black community; the relative ease of paying for massive social programs when majority economic interests are threatened; and ultimately, the way that racial subordination replicates itself and compounds over time, underscoring the need for antisubordination programs such as reparations.

A. COVID-19, Health Disparities, and Intergenerational Trauma

COVID-19 disparities highlight the longstanding and continuing health disadvantages within the Black community.

There is a growing body of research that investigates intergenerational trauma.  Researchers Frances Champagne, Denise Herd, Angelique Davis, and others have written about how Blacks in the United States today exhibit heightened “allostatic loads”—that is, the physical effects of longterm exposure to fight-or-flight stress hormones in higher concentrations, which are in turn the product of societal racism and related violence.[29]  At a recent conference at the University of California, Berkeley,[30] these researchers spoke about how this kind of trauma can be passed down from one generation to another.[31]

This corresponds with similar research on infant mortality.  Blacks have 2.3 times the infant mortality rate of whites.  As one researcher noted, evidence now suggests that years of dealing with discrimination—living in poor, segregated neighborhoods, having to move frequently, sometimes losing a parenting partner to mass incarceration—may lead to chronic stress, which takes a toll on the body and may prompt biological changes in a woman that can affect the health of her children.  “We literally embody, biologically, the societal and ecological conditions in which we grow up and develop and live.”[32]

The research on the physical effects of intergenerational trauma is still in its infancy but suggests strongly that the accumulated harms and stresses of slavery, Jim Crow, and systemic racism manifest in distinct health disparities across generations of Blacks.  (And of course, those intergenerational health effects are amplified by the ongoing impact of continued higher allostatic loads in a world that continues to subordinate Blacks.)  Ultimately, COVID-19 disparate health outcomes need to be viewed in the context of drastic and longstanding Black public health disadvantages in the United States—resulting from historic racism and implicit bias in the medical establishment, as well as the compounding effects of related stress and trauma.[33]

When we add this all up against the backdrop of COVID-19, we arrive at a remarkable conclusion.  COVID-19 is killing Blacks at a much higher rate, and medical professionals believe this is probably linked to underlying health disparities; meanwhile those disparities themselves are the physical manifestation of intergenerational trauma, going back to slavery and Jim Crow, and ongoing today.  Thus, COVID-19 is killing Blacks today because of health disparities which were created by slavery and its legacy.  The COVID-19 pandemic illustrates the present-day harms which continue to affect Blacks, demonstrating the need for reparations.

As Ta-Nehisi Coates has written, the legacy of slavery plus the harm of historical racism provides a compelling argument for reparations.[34]  But legal claims for reparations failed in court, precisely because the Court held that plaintiffs had not shown a causal link between slavery and Jim Crow, and harms to Blacks today.[35]  Tort law has not historically recognized most intergenerational harm, but it has been recognized in a few instances where statistical causation can be shown.[36]  COVID-19 demonstrates the causal link that courts said did not exist when they dismissed reparations lawsuits.

There are related factors as well.  Research shows that Blacks are less well-served by medical professionals.[37]  In turn, Blacks tend to have justifiably higher rates of distrust of the medical establishment.[38]  This creates a cycle of medical harm and distrust.

In addition, the financial effects compound the harm, many of  which predate COVID-19.[39]  The financial sector has always underserved the Black community,[40]  and a disproportionate number of Blacks are already in financially precarious positions.[41]  Financial effects are repeated in the COVID-19 crisis, such as in Black lack of access to stimulus money, both as individuals and businesses.[42]

B. COVID-19 Responses and Political Will for Reparations

Finally, COVID-19 responses expose the lies in logistical objections to reparations.

One of the common criticisms of reparations is that there is not enough money for payment.[43]  This objection is exposed as a pretext when the country sends $1200 checks to almost 300 million Americans, along with larger sums for business bailouts.  If there is money for $2 trillion in stimulus in 2020—barely a decade after the last stimulus where $1 trillion was spent to shore up insurance companies and banks during the financial crisis of 2008[44]—then there is money for reparations.

The difference in political will is also striking.  As noted above, despite some disagreements, the stimulus bill passed the House and Senate in an extremely short amount of time: ten days to pass the largest stimulus bill in history.  Political leaders were able to work out issues and even pass the House version without a vote, because there were literally no votes against it.  The bill has a highly unusual procedural history, especially since the health crisis severely limited the ability of the House to even convene.  In contrast, reparations bills have languished for decades.[45]

And of course, the CARES Act demonstrates that the federal government has the ability to deliver individual payments to large numbers of Americans.  Despite criticisms of the delivery method, the CARES Act structure has conveyed stimulus checks to almost 300 million Americans over a relatively short period of time.

Not all reparations proposals involve individual payments.  Reparations advocates have suggested a variety of structures, including community-based approaches.[46]  But at least some kind of individual payment is a feature in many reparations proposals—one that also tends to be highlighted by critics.[47]

The CARES Act shows that distribution to individuals is possible, if political will exists.


Black observers writing about COVID-19 have repeatedly invoked the truism, “when white folks catch a cold, Black folks get pneumonia.”[48]  COVID-19 demonstrates this truth, but it also bolsters the case for reparations, and some advocates have made this claim.[49]  It is not clear whether law will respond, or even can.  In other writings, I have suggested that law itself may be part of the “Master’s Tools” of which Black author Audre Lorde wrote when she said that “the master’s tools will never dismantle the master’s house"; if so, law may be inherently unable to address racial subordination.[50]  But if so, we can call out that failure.  COVID-19 deaths provide the causal link for a legal claim for reparations, while the CARES Act illustrates their potential logistics.  It is time that the United States provides Blacks with real reparations.  We can call it a “stimulus.”

[1].       See Cases in the U.S., Ctrs. For Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html [https://perma.cc/ZQ5J-LW2J] (last visited Aug. 10, 2020).  The numbers are updated daily.

[2].       Patricia Cohen & Tiffany Hsu, ‘Rolling Shock’ as Job Losses Mount Even With Reopenings, N.Y. Times(June 11, 2020), https://www.nytimes.com/2020/05/14/business/economy/coronavirus-unemployment-claims.html [https://perma.cc/QG9X-YJJ7]; Charisse Jones, Layoffs: 1.3M Workers File for Unemployment as COVID-19 Spikes and Businesses Close Again, USA Today (July 9, 2020), https://www.usatoday.com/story/money/2020/07/09/coronavirus-1-3-m-file-unemployment-benefits-amid-covid-19/5397132002/ [https://perma.cc/A72Q-P5EG].

[3].       Throughout this Article I will use the term “Black” rather than “African American” except in direct quotations.  This recognizes Blackness as a cultural identity; while the term African American is also widely used, not all Black people identify as coming from Africa.  While no label perfectly captures the experience of the community, Black  is the most widely used today.  See Brionna Renee, I’m Not African American, I’m Black: Why Racial Labels Matter, Elite Daily (Apr. 30, 2015), https://www.elitedaily.com/life/culture/im-not-african-american-im-black-racial-labels-matter/1008819 [https://perma.cc/9PCK-9Z55]; Michael Quander & Lauryn Froneberger, Black vs. African-American: The Complex Conversation Black Americans Are Having About Identity #ForTheCulture, WUSA9 (June 17, 2020), https://www.wusa9.com/article/news/local/black-history/black-vs-african-american-the-complex-conversation-black-americans-are-having-about-identity-fortheculture/65-80dde243-23be-4cfb-9b0f-bf5898bcf069 [https://perma.cc/8YWW-GNHT]; cf. Kimberlé W. Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1332 n.2 (1988) (“Blacks, like Asians, Latinos, and other ‘minorities,’ constitute a specific cultural group and, as such, require denotation as a proper noun.”); NABJ Style Guide A, Nat’l Ass’n Black Journalists, https://www.nabj.org/page/styleguideA [https://perma.cc/3VZW-V2ZH] (last visited July 28, 2020) (noting that “not all black people are African Americans”).

[4].       Spencer Overton, Opinion, The CDC Must End Its Silence on the Racial Impact of COVID-19, Wash. Post (Apr. 7, 2020), https://www.washingtonpost.com/opinions/the-cdc-must-end-its-silence-on-the-racial-impact-of-covid-19/2020/04/07/6d686450-7906-11ea-9bee-c5bf9d2e3288_story.html [https://perma.cc/NTS6-BDWP].

[5].         Id.; see also Rashawn Ray, Why Are Blacks Dying at Higher Rates From COVID-19?, Brookings (Apr. 9, 2020), https://www.brookings.edu/blog/fixgov/2020/04/09/why-are-blacks-dying-at-higher-rates-from-covid-19 [https://perma.cc/F57Z-2FMP].

[6].       Niall McCarthy, COVID-19 is Having a Devastating Impact on African Americans [Infographic], Forbes (Apr. 7, 2020, 5:17 AM), http://www.forbes.com/sites/niallmccarthy/2020/04/07/covid-19-is-having-a-devastating-impact-on-african-americans-infographic [https://perma.cc/4V28-YE44].

[7].       See Dan Diamond, Surgeon General Gets Pushed to Sidelines, Sparking Questions, Politico (Apr. 20, 2020, 7:21 PM), https://www.politico.com/news/2020/04/20/surgeon-general-coronavirus-197508 [https://perma.cc/WGD7-WEVF].

[8].       See Zeeshan Aleem, New CDC Data Shows COVID-19 Is Affecting African Americans at Exceptionally High Rates, Vox (Apr. 18, 2020, 11:00 AM), https://www.vox.com/coronavirus-covid19/2020/4/18/21226225/coronavirus-black-cdc-infection [https://perma.cc/5S2D-G9ZR].

[9].       As of August 10, racial data was available for 48 percent of cases.  See Demographic Trends of COVID-19 Cases and Deaths in the US Reported to CDC, Ctrs. For Disease Control & Prevention, https://www.cdc.gov/covid-data-tracker/index.html#demographics [https://perma.cc/S6WP-UVTQ] (last visited Aug. 10, 2020).

[10].     Id.

[11].     Harmeet Kaur, The Coronavirus Pandemic is Hitting Black and Brown Americans Especially Hard on All Fronts,CNN(May 8, 2020, 8:43 PM), https://www.cnn.com/2020/05/08/us/coronavirus-pandemic-race-impact-trnd/index.html [https://perma.cc/P9RK-ABQV].

[12].     Emma Grey Ellis, COVID-19 Is Killing Black People Unequally—Don’t Be Surprised, Wired (May 2, 2020, 7:00 AM), https://www.wired.com/story/covid-19-coronavirus-racial-disparities [https://perma.cc/LAV8-WYQV].

[13].     Janet Hook, Obama, in National Commencement Address, Decries Racial Impact of COVID-19 Deaths, L.A. Times (May 16, 2020, 6:05 PM), https://www.latimes.com/politics/story/2020-05-16/obama-first-major-public-speech-racial-impact-of-covid [https://perma.cc/U98U-3B6E].

[14].     Ronald J. Daniels & Marc. H. Morial, Opinion, The COVID-19 Racial Disparities Could Be Even Worse Than We Think, Wash. Post (Apr. 23, 2020, 12:58 PM), https://www.washingtonpost.com/opinions/2020/04/23/covid-19-racial-disparities-could-be-even-worse-than-we-think [https://perma.cc/9V8G-9MGT] (discussing the gap in access to COVID-19 testing between Black and white Americans).

[15].     See, e.g., Heather Long & Andrew Van Dam, The Black-White Economic Divide Is as Wide as It Was in 1968, Wash. Post (June 4, 2020, 6:19 AM), https://www.washingtonpost.com/business/2020/06/04/economic-divide-black-households [https://perma.cc/G5A4-3RBK]; Kriston McIntosh, Emily Moss, Ryan Nunn & Jay Shambaugh, Examining the Black-White Wealth Gap, Brookings (Feb. 27, 2020), https://www.brookings.edu/blog/up-front/2020/02/27/examining-the-black-white-wealth-gap [https://perma.cc/ MG54-8T7M].

[16].     See Mark Hugo Lopez, Lee Rainie & Abby Budiman, Financial and Health Impacts of COVID-19 Vary Widely By Race and Ethnicity, Pew Res. Ctr. (May 5, 2020), https://www.pewresearch.org/fact-tank/2020/05/05/financial-and-health-impacts-of-covid-19-vary-widely-by-race-and-ethnicity [https://perma.cc/H5VV-86BZ].

[17].     McCarthy, supra note 6; Ray, supra note 6; see also Daniels & Morial, supra note 14; Susan Jones, Myths Persist in Racial Disparity of COVID-19 Deaths, Speaker Says, U. Pitt.: U. Times (May 14, 2020), https://www.utimes.pitt.edu/news/myths-persist-racial [https://perma.cc/9V8G-9MGT].

[18].     Dr. Thomas LaViest at Tulane School of Public Health makes this observation:

The prevailing narrative about the cause of this disparity cites several reasons, LaVeist said, such as more chronic diseases like asthma, hypertension and obesity, and risky health behaviors, like smoking, drinking and lack of exercise, in the black community.  But LaVeist said whites in the South are just as likely to have the same diseases and same unhealthy behaviors.

         See Jones, supra note 17.

[19].     Ellis, supra note 12.

[20].     See generally Lolita Buckner Inniss, A Domestic Right of Return?: Race, Rights, and Residency in New Orleans in the Aftermath of Hurricane Katrina, 27 B.C. Third World L.J. 325, 332 (2007) (discussing disparate racial effects of Hurricane Katrina).

[21].     Sarah D. Wire, Senate Passes $2-Trillion Economic Stimulus Package, L.A. Times (Mar. 25, 2020, 8:57 PM), https://www.latimes.com/politics/story/2020-03-25/vote-senate-on-2-trillion-economic-stimulus-package-coronavirus [https://perma.cc/W7EB-6596].

[22].     Some people were excluded—in particular, most undocumented individuals and “mixed”-immigration status families were not eligible for stimulus.  See Monique O. Madan, Millions of Immigrant Families Won’t Get Coronavirus Stimulus Checks, Experts Say, Mia. Herald (Mar. 26, 2020, 7:33 PM), https://www.miamiherald.com/news/local/immigration/article241531211.html [https://perma.cc/V69T-TKWM].

[23].     See, e.g., Eoin Higgins, Big Oil Takes $1.9 Billion in CARES Act Tax Breaks Intended for Small Businesses, Truthout (May 17, 2020), https://truthout.org/articles/big-oil-takes-1-9-billion-in-cares-act-tax-breaks-intended-for-small-businesses [https://perma.cc/RU4G-BFZ5]; Kelsey Snell, What's Inside the Senate's $2 Trillion Coronavirus Aid Package, NPR (Mar. 26, 2020, 5:34 PM), https://www.npr.org/2020/03/26/821457551/whats-inside-the-senate-s-2-trillion-coronavirus-aid-package [https://perma.cc/CFC9-ZTTD]; Jeff Stein & Peter Whoriskey, The U.S. Plans to Lend $500 Billion to Large Companies. It Won’t Require Them to Preserve Jobs or Limit Executive Pay., Wash. Post (Apr. 28, 2020, 9:58 AM), https://www.washingtonpost.com/business/2020/04/28/federal-reserve-bond-corporations [https://perma.cc/2PXH-8M3K]; Associated Press, AP: Catholic Church Lobbied for Taxpayer Funds, Got $1.4B, U.S. News (July 10, 2020, 1:03 PM), https://www.usnews.com/news/politics/articles/2020-07-10/ap-after-lobbying-catholic-church-won-14b-in-virus-aid [https://perma.cc/CX6N-6DG5].

[24].     For instance, provisions regarding student loans were significantly changed from the initial proposal.

[25].     See Fred Imbert & Yun Li, Dow Drops 1,300 Points, S&P 500 Loses 5% as Coronavirus Market Sell-off Reaches New Low, CNBC (Mar. 17, 2020), https://www.cnbc.com/2020/03/17/stock-futures-fall-slightly-after-market-rebounds-on-hopes-for-1-trillion-stimulus.html [https://perma.cc/4ACC-VATS].

[26].     See Emily Stewart, The Economy Is in Free Fall.  So Why Isn’t the Stock Market?, Vox (May 6, 2020, 7:30 AM), https://www.vox.com/covid-19-coronavirus-economy-recession-stock-market/2020/5/6/21248069/stock-market-economy-federal-reserve-jerome-powell [https://perma.cc/GR2M-DPLA].

[27].     See David Beckworth, Mehrsa Baradaran on How COVID-19 Is Exposing Existing Societal Wealth Gaps and Financial Access ChallengesMercatus Ctr.: The Bridge (Apr. 22, 2020), https://www.mercatus.org/bridge/podcasts/04222020/mehrsa-baradaran-how-covid-19-exposing-existing-societal-wealth-gaps-and [https://perma.cc/S45Z-963J]; see also Aaron Klein, A Big Problem for the Coronavirus Economy: The Internet Doesn’t Take Cash, Brookings (Mar. 25, 2020), https://www.brookings.edu/opinions/a-big-problem-for-the-coronavirus-economy-the-internet-doesnt-take-cash [https://perma.cc/C8ME-G6QX] (discussing problems with stimulus distribution).

[28].     As of May 11, the IRS has distributed 130 million checks; it expects to send another 150 million.  See Lorie Konish, 130 Million Stimulus Checks Have Gone out.  Here’s Which States Got the Most Money, CNBC (May 11, 2020, 1:32 PM), https://www.cnbc.com/2020/05/11/130-million-stimulus-checks-have-gone-out-which-states-got-the-most.html [https://perma.cc/YE37-NHBF].

[29].     See, e.g., Kathryn Gudsnuk & Frances A. Champagne, Epigenetic Influence of Stress and the Social Environment, 53 Inst. Lab’y Animal Res. 279 (2012).

[30].     Civ. Just. Res. Initiative, Program: Roundtable on Legal Remedies for Racial Trauma (2020), https://civiljusticeinitiative.org/wp-content/uploads/2020/01/Legal-Remedies-for-Racial-Trauma-Program-Flyer.pdf [https://perma.cc/3DGN-UHTT].

[31].     For ethical reasons, there are not human studies proving this; animal studies, however, show children of stressed parents experience significant health differences.  See Georgette Jasen, Frances Champagne Studies How a Mother’s Care Affects the Brain, Colum. News (June 27, 2017), https://news.columbia.edu/news/frances-champagne-studies-how-mothers-care-affects-brain [https://perma.cc/6TYN-2VCZ].

[32].     Zoë Carpenter, What’s Killing America’s Black Infants?, Nation (Feb. 15, 2017), https://www.thenation.com/article/archive/whats-killing-americas-black-infants [https://perma.cc/S9BX-T9SV] (quoting Dr. Nancy Krieger, Professor of Social Epidemiology, Harvard University).

[33].     Health Disparities Between Blacks and Whites Run Deep, Harv. Sch. Pub. Health: News, https://www.hsph.harvard.edu/news/hsph-in-the-news/health-disparities-between-blacks-and-whites-run-deep [https://perma.cc/LZL4-VUDR] (last visited July 28, 2020) (“In the U.S., health disparities between blacks and whites run deep.  For example, blacks have higher rates of diabetes, hypertension, and heart disease than other groups, and black children have a 500% higher death rate from asthma compared with white children.”); see also Ivan Natividad, Among the Reasons COVID-19 Is Worse for Black Communities: Police Violence, U. Cal. Berkeley Res. (Apr. 23, 2020), https://vcresearch.berkeley.edu/news/among-reasons-covid-19-worse-black-communities-police-violence [https://perma.cc/7Z6F-3QCH].

[34].     Ta-Nehisi Coates, The Case for Reparations, Atlantic, June 2014, https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631 [https://perma.cc/53FH-UHXV].

[35].     See Kaimipono David Wenger, Causation and Attenuation in the Slavery Reparations Debate, 40 U. S.F. L. Rev. 279 (2006) (discussing court decisions dismissing tort action brought by descendants of enslaved persons, based on failure to show legal causation).

[36].     See id. at 307–15 (discussing a tort case of granddaughters of women who took DES).

[37].     See Khiara M. Bridges, Reproducing Race: An Ethnography of Pregnancy as a Site of Racialization (2008) (discussing how medical professionals marginalize Black women); Michele Goodwin & Erwin Chemerinsky, No Immunity: Race, Class, and Civil Liberties in Times of Health Crisis, 129 Harv. L. Rev. 956 (2016) (book review) (discussing the history of racism in the medical industry).

[38].     See Ellis, supra note 12; Daniels & Morial, supra note 14; cf. Beckworth, supra note 27.

[39].     See, e.g., Andrea Freeman, Racism in the Credit Card Industry, 95 N.C. L. Rev. 1071, 1081–95 (2017) (discussing the history of legal and financial policies creating racial wealth gaps, often deliberately).

[40].     Id.

[41].     See generally Mehrsa Baradaran, How the Other Half Banks (2015) (describing how banks pushed for deregulation, which allowed them to abandon low-income customers in favor of wealthier clients, and explaining that low-income communities were subsequently forced to rely on payday lenders and similar unscrupulous entities, leaving low income individuals underserved).

[42].     See Klein, supra note 27; cf. Beckworth, supra note 27.

[43].     See, e.g., Kaimipono David Wenger, “Too Remedy?”  Rethinking Big to Mass Restitution for Slavery and Jim Crow, 44 Loy. L.A. L. Rev. 177 (2010) (citing critics); see also Alfred L. Brophy, Reparations: Pro & Con (2006).

[44].     See Beckworth, supra note 27; Baradaran, supra note 41.

[45].     See Brophy, supra note 43, at 11–16 (discussing the history of reparations bills, including public opposition).

[46].     Reparations proposals differ in a number of ways, including potential recipients.  Some approaches, such as the Slave Descendants lawsuit, would limit recipients to descendants of enslaved persons.  See generally Brophy, supra note 43, at 97–117, 123–27 (discussing reparations lawsuit goals and the Slave Descendants lawsuit particulars); see also In re Afr.-Am. Slave Descendants Litig., 304 F. Supp. 2d 1027, 1039 (N.D. Ill. 2004) (noting that the putative class consists of “descendants of formerly enslaved Africans”).  There are important and fine-grained differences in group identities among the Black community—not all Blacks are descendants of enslaved persons; not all people who identify as Black identify as being of African descent; there are also differences between recent African immigrants and earlier African Americans.  The rough correlation between these groups, however, is sufficient for our analysis of COVID-19 issues and reparations in this Article.

[47].     See Brophy, supra note 43, at 147–50, 168–79 (discussing different proposals); see also Roy L. Brooks, Atonement and Forgiveness: A New Model for Black Reparations (2004) (proposing a hybrid approach); Randall Robinson, The Debt: What America Owes to Blacks (2001) (arguing for individual payments).

[48].     See, e.g., Kaur, supra note 11.

[49].     See William A. Darity Jr. & A. Kirsten Mullen, The Racial Disparities of Coronavirus Point Yet Again to the Need for Reparations, Phila. Inquirer (Apr. 20, 2020), https://www.inquirer.com/opinion/commentary/coronavirus-black-americans-racial-disparities-reparations-20200420.html [https://perma.cc/98HY-SX7T]; see also Black Los Angeles Demands in Light of COVID-19 and Rates of Black Death, Black Lives Matter L.A. (Apr. 16, 2020), https://www.blmla.org/newsfeed/2020/4/16/black-los-angeles-demands-in-light-of-covid-19-and-rates-of-black-death [https://perma.cc/ZEV5-UPD3].

[50].     See Audre Lorde, The Master’s Tools Will Never Dismantle the Master’s House, in Sister Outsider: Essays and Speeches 110 (2007); see also Kaimipono David Wenger, The Unconscionable Impossibility of Reparations for Slavery; Or, Why the Master’s Mules Will Never Dismantle the Master’s House, in Injury and Injustice (Anne Bloom et al. eds., 2018).


About the Author

Emeritus Professor of Law, Thomas Jefferson Law School, San Diego, California; Senior Staff Attorney, Inner City Law Center, Los Angeles, California.