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Asking the Hard Questions: Truth, Reconciliation, and Corporate America

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Asking the Hard Questions: Truth, Reconciliation, and Corporate America Asking the Hard Questions: Truth, Reconciliation, and Corporate America Joseph Pileri* In the wake of the murder of George Floyd, many American companies issued public statements to support the Black Lives Matter movement and promised steps to address internal racial inequality and systemic racism. Telling Black Americans that their lives matter, Apple CEO Tim Cook promised to “bring critical resources and technology to underserved school systems” and “push[] progress forward on inclusion and diversity.”1 Nike declared Juneteenth, a day often used to commemorate the end of slavery following the Civil War,2 to be a paid holiday in honor of the emancipation of enslaved people.3 After initially refusing to allow employees to wear clothes supporting the movement, Starbucks announced that it would not only permit Black Lives Matter t-shirts but would also produce its own Black Lives Matter t-shirts for employees. In addition, Starbucks promised a $1 million donation to groups fighting for racial justice.4 JPMorgan Chase CEO Jamie Dimon was seen kneeling with rank-and-file workers in a show of support for Black Lives.5 These statements made by corporate leaders, and the efforts promised within, are laudable, provided that there is follow-through. However, these statements largely fail to acknowledge or examine how American companies have contributed to and benefitted from structural racism. JP Morgan Chase’s history, for example, dates back to 1799 with the chartering of the Manhattan Company, DOI: https://doi.org/10.15779/Z38599Z271. *. Chief Legal Officer at Mission Driven Finance, an impact investment firm headquartered in San Diego, California. Previously taught in legal clinics at Georgetown University Law Center and American University Washington College of Law. J.D. 2010, Harvard Law School; B.A. 2007, University of California, Los Angeles. I would like to thank Susan Bennett and Priya Baskaran for their helpful comments and feedback and for their mentorship and steadfast advocacy on behalf of racial justice in the transactional lawyering space. 1. Speaking up on racism, APPLE, https://www.apple.com/speaking-up-on-racism/ (last visited June 16, 2020). 2. Derrick Bryson Taylor, So You Want to Learn About Juneteenth?, N.Y. TIMES (June 19, 2020), https://www.nytimes.com/article/juneteenth-day-celebration.html. 3. Nike, NFL and Others to Start Giving Workers Juneteenth Off, ASSOCIATED PRESS, (June 12, 2020), https://apnews.com/article/be6a0c2746c2358b526ec29d6fd197c1. 4. Hannah Denham, In reversal, Starbucks will allow employees to wear ‘Black Lives Matter’ T- shirts, WASH. POST (June 12, 2020), https://www.washingtonpost.com/business/2020/06/12/starbucks- black-lives-matter/. 5.Id.; see Thornton McEnergy, Jamie Dimon drops into Mt. Kisco Chase branch, takes a knee with staff, N.Y. POST (June 5, 2020), https://nypost.com/2020/06/05/mending-jpm-chief-drops-into-mt-kisco- chase-branch/. 157 Berkeley Business Law Journal Vol. 18:2, 2021 a water utility that morphed into a financial institution.6 This institution witnessed such racist institutions as the Atlantic slave trade, the growth of slavery in the American South, the Civil War, Reconstitution, Jim Crow, redlining, mass incarceration, and predatory home lending. How were JP Morgan Chase and other corporate and financial institutions affected by these systems? As participants in American society, many companies reap the benefits and share some of the blame for today’s society—a society that brought Americans around the country into the streets, in the middle of the greatest pandemic in a century, to proclaim that Black Lives Matter. Translating statements in support of Black Lives Matters into real action will require that American companies take an honest look at their own role in this nation’s racial history. The United States never had a national process of truth and reconciliation regarding its treatment of Black Americans. A process of truth and reconciliation posits that the truth of human rights violations must be told publicly, including by the perpetrators, so that society may understand why these violations took place, how they may be prevented in the future, and what retribution or reparation is required to cure these harms.7 Truth and reconciliation requires that the oppressor acknowledge the truth before remedial steps can take place.8 A truth and reconciliation process will confront the history of the financial and business sector with structural racism. How many American companies owe their wealth and status to the plunder of Black communities? What pillars of the American economy rest on a foundation of stolen Black labor? And what of the countless smaller firms that, in one way or another, owe their existence at least in part to capital and resources stolen from Black Americans? It seems unlikely that such an effort, led by the federal government, will take place in the U.S. In the absence of leadership in Washington, D.C. on truth and reconciliation, American companies can and should take the initiative by asking themselves hard questions about their role in this country’s racist history and the plunder of wealth from Black, indigenous, and other communities. Companies that are serious about addressing racial injustice should not only make promises now but also audit their past for their involvement in and benefit from structural racism. The ways that American companies have contributed to and benefitted from structural racism are myriad and the subject of a great deal of scholarship. While a full calculation of the monetary benefit to companies of structural racism is beyond the scope of this article and, indeed, is the work of commissions such as those that I propose, several examples of historical and present monetary benefits 6. History of Our Firm, JPMORGAN CHASE, https://institute.jpmorganchase.com/about/our-history (last visited June 16, 2020). 7.See Jennifer J. Llewellyn & Robert Howse, Institutions for Restorative Justice: The South African Truth and Reconciliation Commission South Africa’s Truth and Reconciliation Commission: A Symposium, 49 U. TORONTO L.J. 355, 356–357 (1999). 8.Id. 158 ASKING THE HARD QUESTIONS readily come to mind.9 Enslaved people were worth more in 1860 than any other financial asset in the country; those held in bondage, of course, enjoyed none of their inherent financial value. Enslaved people were used as collateral for early mortgages, and those mortgages were combined and securitized so that they could be traded in financial markets.10 After the Civil War, insurance companies offered race-based life insurance plans that valued and consequently compensated Black lives at a lower price than Whites.11 In the twentieth century, banks conspired to deny mortgage financing to Black homebuyers through redlining and discriminatory lending practices.12 Decades after redlining was determined to be unlawful, banks continued to target Black neighborhoods to undertake predatory lending practices, ultimately foreclosing on those properties when Black borrowers were unable to make mortgage payments.13 The list of racist institutions and the involvement of corporate America with those institutions is long. This plunder is not just limited to the companies offering the mortgage loans or writing the insurance policies. What of the accountants who audited financials? And the lawyers who drafted contracts denying Black Americans opportunities to build wealth? What other companies benefitted from the exploitation of Black labor and Black consumers? Racist policies at every level of government allowed plunder to spread throughout the American economy. The point of truth and reconciliation is not to root out unlawful or criminal activity; most of this activity occurred within the bounds of the law. Laying this story out clearly is not a tool to punish beneficiaries of American racism. It is a condition precedent for reconciling with American racial injustice. Scholars and advocates have suggested truth and reconciliation processes to address our country’s racial history. Sherrilyn Ifill proposed a process to deal with the legacy of lynching in the United States, modeled after South Africa’s Truth and Reconciliation Commission.14 Such a commission would focus on “the responsibility of individuals and local institutions that promoted, condoned, or tolerated lynching.”15 Failure to do so could “continue to foment racial distrust and disconnection,” even decades after lynchings occurred and perpetrators died.16 Bryan Stevenson relied on similar principles of truth and reconciliation 9. See Mary Heen, Ending Jim Crow Life Insurance Rates, 4 NW. J. L. & SOC.L POL’Y 360, 363, 369– 370 (2009). 10. Matthew Desmond, In order to understand the brutality of American capitalism, you have to start on the plantation, N.Y. TIMES MAG. (Aug. 14, 2019), https://www.nytimes.com/interactive/2019/08/14/magazine/slavery-capitalism.html. 11. Heen, supra note 9, at 362. 12. See Ta-Nehisi Coates, The Case for Reparations, THE ATLANTIC (June 2014), https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/. 13.Id. 14. See Sherrilyn A. Ifill, Creating a Truth and Reconciliation Commission for Lynching, 21 LAW & INEQ. 263, 271 (2003). 15.Id. 16.Id. at 272. 159 Berkeley Business Law Journal Vol. 18:2, 2021 when planning the Memorial for Peace and Justice, the country’s first national monument to lynching victims in Montgomery, Alabama.17 In the United States, institutions of higher learning have begun efforts to understand, acknowledge, and
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