The Ethics of Implementation: Institutional Remedies and the Lawyer's Role

The issue addressed in this article is whether and to what extent a lawyer has an ethical responsibility to pursue implementation of the remedy in institutional reform litigation. Institutional reform litigation refers to cases in which an individual or class of individuals sues a large organization in order to vindicate constitutional or statutory rights. The types of cases with which this article is concerned are the "public law" type, such as school desegregation, prisoners' rights and patients' rights cases, although included under the rubric of institutional reform can be, inter alia, antitrust, reapportionment and bankruptcy cases. The implementation stage of institutional reform litigation arises after an individual or class of individuals prevails at the liability stage, or pursuant to a settlement, and a court orders the defendant organization to change in order to vindicate the plaintiffs' rights. At that point, the defendant organization, whether it be a prison, mental hospital or school district, usually has the burden of implementing the order. One conclusion drawn is that the ethical duty of the lawyer must always be consistent with the lawyer's "special responsibility for the quality of justice."

Literacy Research: Issues of Authority, Ownership, and Representation

With the “social turn” of language in the past decade within English studies, ethnographic and teacher research methods increasingly have acquired legitimacy as a means of studying student literacy. And with this legitimacy, graduate students specializing in literacy and composition studies increasingly are being encouraged to use ethnographic and teacher research methods to study student literacy within classrooms. Yet few of the narratives produced from these studies discuss the problems that frequently arise when participant observers enter the classroom. Recently, some researchers have begun to interrogate the extent to which ethnographic and teacher research methods are able to construct and disseminate knowledge in empowering ways (Anderson & Irvine, 1993; Bishop, 1993; Fine, 1994; Fleischer. 1994; McLaren, 1992). While ethnographic and teacher research methods have oftentimes been touted as being more democratic and nonhierarchical than quantitative methods—-which oftentimes erase individuals lived experiences with numbers and statistical formulas—-researchers are just beginning to probe the ways that ethnographic and teacher research models can also be silencing, unreflective, and oppressive. Those who have begun to question the ethics of conducting, writing about, and disseminating knowledge in education have coined the term “critical” research, a rather vague and loose term that proposes a position of reflexivity and self-critique for all research methods, not just ethnography or teacher research. Drawing upon theories of feminist consciousness-raising, liberatory praxis, and community-action research, theories of critical research aim to involve researchers and participants in a highly participatory framework for constructing knowledge, an inquiry that seeks to question, disrupt, or intervene in the conditions under study for some socially transformative end. While critical research methods are always contingent upon the context being studied, in general they are undergirded by principles of non-hierarchical relations, participatory collaboration, problem-posing, dialogic inquiry, and multiple and multi-voiced interpretations. In distinguishing between critical and traditional ethnographic processes, for instance, Peter McLaren says that critical ethnography asks questions such as “[u]nder what conditions and to what ends do we. as educational researchers, enter into relations of cooperation. mutuality, and reciprocity with those who we research?” (p. 78) and “what social effects do you want your evaluations and understandings to have?” (p. 83). In»the same vein, Michelle Fine suggests that critical researchers must move beyond notions of the etic/emic dichotomy of researcher positionality in order to “probe how we are in relation with the contexts we study and with our informants, understanding that we are all multiple in those relations” (p. 72). Researchers in composition and literacy stud¬ies who endorse critical research methods, then, aim to enact some sort of positive transformative change in keeping with the needs and interests of the participants with whom they work.