Suits bring debate over slavery reparations into the courtroom.

Under normal circumstances, four suits brought recently against J.P. Morgan Chase & Co., R.J. Reynolds Tobacco Holdings Inc., and other corporate giants would not have caused the companies significant alarm. The cases had the sort of elements defense lawyers love: alleged actions more than a hundred years old; no living witnesses or victims directly affected; and, best of all, a practice that was enshrined in the U.S. Constitution.

But these are no ordinary cases. According to the suits, the companies share a secret: Each, in varying degrees, built its profits on the traffic in African slaves.

The four suits filed in August and September, combined with four others filed last spring, constitute the first wide-scale effort to bring the issue of slavery reparations from college textbooks and TV talk shows into the courtroom. In doing so, however, the cases have highlighted the often unbridgeable gap that exists between justice and the law.

Proponents of reparations say the money would compensate African-Americans not only for slavery, but also for the century of legally sanctioned racism that followed. In 1865, General William Tecumseh Sherman issued his famous order granting "40 acres and a mule" to freed slaves. Following the assassination of Abraham Lincoln, however, President Andrew Johnson rescinded the order and returned the property to Southern rebels. Many believe slavery's enduring legacy is the widespread poverty in African-American communities and persistent disparities in income and educational success.

But as a matter of law, the fight for reparations is expected to be an uphill battle. In addition to surmounting numerous evidentiary hurdles, the plaintiffs must comply with laws regarding due process and the statute of limitations, as well as establish a chain of causation across generations linking the harm done to slaves to problems facing African-Americans today.

"Even when something is unconstitutional, it is extremely difficult to get money out of the government, due to all kinds of sovereign immunity and official immunity," said Kim Forde-Mazrui, a professor of criminal and constitutional law at the University of Virginia, who generally supports the concept of reparations. "But for those seeking reparations from the government or corporations, how do you get around slavery being constitutional at the time it was practiced? As much as I hate to admit it, slavery was legally sanctioned."

Indeed, the first attempt at obtaining reparations from the government, Cato v. United States, was dismissed on grounds of sovereign immunity. (70 F.3d 1103 (9th Cir. 1995).)

A new effort led by Harvard Law School Professor Charles Ogletree,--separate from the suits against corporations--plans to reprise reparations claims against the U.S. government.

The attorneys behind the eight ongoing class action claims, however, believed that the immunity issue was too great an obstacle to surmount. Instead, they took their cue from the success of the recent U.S.-government-supported settlement against European companies that profited from the Holocaust.

Diane Sammons, an attorney in Livingston, New Jersey, said she had not considered the idea of reparations for slavery until 2001, when she traveled to Austria to represent some of the families of 1-55 people killed in a ski resort fire. While there, she met with the staff of Ed Fagan, another Livingston lawyer and a key player in the Holocaust case. In U.S.-brokered talks, companies including Volkswagen and DaimlerChrysler eventually agreed to pay more than $4 billion in reparations to Holocaust survivors used as slave labor in Nazi Germany.

At the time, Sammons asked: "Has anyone thought about using that model for U.S. slavery?" As it happened, Fagan had already met Deadria Farmer-Paellmann, an activist who went to law school to try to make a case for reparations. In the process, she unearthed copies of insurance policies from Aetna, Inc., that protected slave owners against the loss of their slaves.

Though Aetna later apologized for its past conduct, Farmer-Paellmann became one of the first plaintiffs in the reparations effort. (Farmer-Paellmann v. FleetBoston Financial Corp., No. CV-02-1862 (E.D.N.Y. Mar. 22, 2002).) Fagan and Sammons are among the lawyers representing her and other plaintiffs.

Aetna, meanwhile, along with all of the corporate defendants who commented publicly, predicted the suits would not pass muster. "We do not believe a court would permit a lawsuit over events which--however regrettable---occurred hundreds of years ago," according to an Aetna statement. "These issues in no way reflect the Aetna of today."

The suits were filed on behalf of 35 million African-Americans, seeking payments for the "illicit profits" of stolen labor. If they prevail, the money will go into a humanitarian fund to address the "collective harm" slavery has done to African-Americans.

Legal experts, while acknowledging the reparations suits' similarity to the Holocaust claims, are quick to note the differences. The monetary damages against corporations and governments that supported the Nazi regime are going largely to living victims. In those claims, the causal relationship between the defendant's conduct and the plaintiffs' injuries was more easily established and clearly defined.

The Holocaust claims also had the benefit of Clinton administration support, while Congress and the White House have been reluctant to embrace reparations for slavery. The public is divided as well. In a CNN/USA Today/Gallup poll conducted in February, 62 percent of white Americans opposed corporate reparations, while 68 percent of black Americans supported them.

Some African-Americans, meanwhile, wonder if reparations are justified or whether they would make a difference. "I think slave owners should be punished and slaves should receive reparations," said Walter Williams, chair of the economics department of George Mason University in Fairfax, Virginia. "The trouble is, there are no longer slaves and slave owners in this country. If you believe in the doctrine of individual accountability, that's a matter that's going to have to be taken up in heaven and hell."

He added that the $7 trillion the United States has spent fighting the "war on poverty" since 1965 is a form of redress. "If that didn't clean up everything, what reason do we have to believe that reparations would?" Williams asked.

Sammons dismisses Williams's comments, calling 1960s-style welfare programs "a drop in the bucket compared to the enormous liability of corporations for slavery." While acknowledging that the legal team had to be "creative" in forming its strategy, Sammons said she believes that, as with the Holocaust case, "the law allows room to breathe" when confronted with historical injustice.

The legal arguments supporting reparations have succeeded in other cases before, but seldom in concert. For example, the team behind the eight ongoing class action claims plans to address the lack of living defendants with an approach similar to that used for the children of victims harmed by Agent Orange, tobacco, and asbestos--namely, that those injured by corporations have a right to damages even if they had no direct contact with the defendants.

Statute of limitations? The legal team cites the discovery rule, which says the statute does not begin to run until the discovery of the harm. The lawyers will also argue that slavery is a continuous tort--a harm that repeats itself over time.

As for the former legality of slavery, the lawyers note that other laws have held corporations accountable for actions that were not illegal at the time they were committed. The Holocaust claims, for example, were successful despite Nazi laws that once endorsed discrimination against Jews. The reparations lawyers also point to toxic-tort laws that allow injured people to sue a company that dumped toxic waste-even if the act occurred over a hundred years ago.

In targeting defendants, the team is relying on the notions of enterprise and joint liability, often used in conspiracy cases.

"In order for slaves to be brought to America, they had to be on boats," Sammons said. "They needed to be insured. In order for them to work in the fields, [there had to be] a market. There had to be people willing to buy cotton or tobacco. There had to be trains to get slaves to various locations and get products to market."

The reparations lawyers view the "corporate conspiracy" as a chain, each part dependent on the other. If the various enterprises that depended on the slave trade had not worked together, Sammons said, "slavery would not have endured."