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Lionel Smith
Sun, 18 Nov 2007 18:37:02 -0500
Cases of restitution for historic wrongs


Chaim, a recent Canadian case of that kind concerned a racist "head tax" levied on Chinese immigrants in the late C19 and first part of the C20, which was litigated quite recently; unjust enrichment was one of several claims. The claims failed on substantive grounds, the limitation point being left aside: Mack v. A.-G. (2002), 60 O.R. (3d) 737 (C.A.), leave to appeal refused (2002), 101 C.R.R. (2d) 375 (S.C.C.). A political settlement was later reached. There was a conference in 2003 that led to a book, Dyzenhaus and Moran, eds., Calling Power to Account: Law, Reparations, and the Chinese Canadian Head Tax (2005).




On 18/11/07 10:13, "Chaim Saiman" wrote:

Dear RDG Friends.

As many of you are probably aware, in the past several years, descendants of African-American slaves have attempted to bring private rights of action for restitution/unjust enrichment against a variety of successors of civil war era corporate interests. Not surprisingly, these cases have not progressed very far, and were eventually dismissed. See, In re African-American Slave Descendants Litigation, 375 F. Supp.2d 721 (N.D. Ill. 2004), aff'd, 471 F.3d 754 (7th Cir. 2006) (Posner, J.)

By and large the courts have not engaged in the substance of the restitution claim, and have preferred to rejected the claims on procedural grounds relating to the limitations of federal jurisdiction and the doctrine of standing. And while standing is often another way to frame the substantive claim, I find it relevant that nearly all the precedents and analysis focus in on questions of federal jurisdiction rather than unjust enrichment. Stated simply, these cases are conceptualized as raising procedural rather than substantive issues.

My question is whether there are any cases regarding what some have called "restitution for historic wrongs" or similar situations in the English/Commonwealth courts? I am not so much interested in whether the claims succeed (though if they do its certainly noteworthy) but more about how they are conceptualized. My intuition is that such claims are far more likely to be litigated in terms of the merits of the restitution claim that the proceduralist tones of the American courts.

Any relevant cases/examples would be most welcomed.

[if any of you have ideas from other areas of restitution, such examples would also be welcomed].

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