Foreword: why retry? Reviving dormant racial justice claims.

• Author: Minow, Martha

"A patched and leaky vase may be less desirable than an unbroken vase, but it is better than a pile of shards."

--Marc Galanter (1)

Two familiar arguments oppose lawsuits and legislative efforts to address racial injustices from our national past, (2) and a third tacit argument can be discerned. "Why open old wounds?": this question animates the first argument. The evidence is stale--this expresses the second argument. The third, less explicit objection reflects worries that exposing some gross and unremedied racial injustices from the past will reveal the scale of imperfections in the systems of justice and government and thereby undermine the legitimacy of those systems. To introduce the meticulous and passionate essays in this Colloquium, I elaborate and respond to each of these questions. Like the Colloquium authors, I think it far more important that public attention come to these issues than that any particular remedy be secured. For inattention has been the insult laid upon the injuries of the past.

1. WHY OPEN OLD WOUNDS?

   Reopening old wounds is treated as an argument against litigation when time has passed since the underlying events. To some, even two years can seem like sufficient time for injuries to recede into a past that should not be disturbed. One editorial writer recently urged a district attorney to drop a potential prosecution that arose when a homeless couple accidentally started a fire in a vacant warehouse that led to the death of six firefighters. (3) "All a trial would accomplish now is to reopen old wounds in a city that has already spent two years grieving." (4)

   In that situation, the pursuit of justice seems to interrupt or undermine a process of mourning, a process that involves ceremonies, memorials, grief, and private memory. (5) Though blame could be found, the editorial argued that the wrongdoers needed no trial because they already suffered "the hell of living with what they have done." (6) This notion that wrongdoers have suffered enough, however, is absent when the underlying harms arose not by negligence but hate, and when the wrongdoers actually boast about their behavior and remain unrepentant.

   Sometimes the worry about reopening old wounds comes with the acknowledgment that the conflicts are still raw. Proposed trials could "reopen old wounds and plunge the country back into civil war," commented one observer after representatives of the United Nations withdrew from plans to set up a special court to prosecute former leaders of the Khmer Rouge for 1.7 million deaths in Cambodia during the 1970s. (7) Although the underlying events reach back several decades, civil war persisted until 1998. (8) It seems therefore a bit odd to talk of "old wounds." Perhaps people warn against reopening the conflicts precisely because they are so fresh and barely ended. In other words, arguments against opening old wounds--whether in Cambodia, the United States, or elsewhere--may stand in for worry about current social disorder and the fragility of peace. Yet however uncomfortable discussions of the racial past may be in this country, can there be any honest worry about social instability if we address the old wounds concerning racial violence of the 1960s and 1970s? Of course, addressing past racial violence has a bearing on the present day examinations of affirmative action, racial profiling, and other social policies, but basic peace and social order are not in jeopardy.

   Some worry that assessing past incidents risks undermining current efforts to build trust across racial lines. Shootings killed two white police officers and a black youth, allegedly a gang member, over a two-week period in August of 2002 in Minneapolis, Minnesota. (9) Given long-standing friction between white police officers and African Americans in Minneapolis, one editorial warned that evaluation of each incident would risk reopening memories of prior incidents, clouding judgments about the present, and dissolving current efforts to build trust between the police and the community. (10) Once again, this kind of worry cannot be raised in the notable recent efforts to bring litigation or seek reparations concerning civil rights abuses of the 1960s and 1970s or slavery. Indeed, it is precisely because of growing trust and real progress toward fairness and objectivity in the local legal systems that current-day efforts turn to these systems for redress for unremedied racial injustices.

   Perhaps criminal prosecutions or any kind of adversarial litigation hold special...