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."

Book Review of "Will the Circle Be Unbroken?": Aboriginal Communities, Restorative Justice, and the Challenges of Conflict and Change by Jane Dickson-Gilmore and Carol La Prairie

Over the past decade or two, restorative justice has become a popular approach for the criminal justice system to take in Canada, New Zealand, and Australia. In part, this is due in all three countries to an appalling disproportionality in the incarceration rates for racialized minorities. As the authors of "Will the Circle Be Unbroken?" point out, however, governments have been attracted to restorative justice for cost-cutting reasons as well. A burning question, therefore, is whether restorative justice works.

Perceptions of Procedural and Distributive Justice in the September 11th Victim Compensation Fund

The September l1th Victim Compensation Fund (the Fund) was created in response to the terrorist attacks of September 11, 2001. Much has been written about the Fund, both pro and con, in both popular media and scholarly literature. Perhaps the most widely used term in referring to the Fund is "unprecedented." The Fund is intriguing for many reasons, particularly for its public policy implications and its impact on the claimants themselves. The federal government has never before provided compensation to victims of terrorism through a special master who had virtually unlimited discretion in determining awards. Consequently, this formal allocation of money by a representative of the federal government to its citizens has provided an opportunity to test theories of procedural and distributive justice in a novel context. This article tests these theories by analyzing the results of a study of the Fund's claimants. Part I provides general background, summarizes existing commentary on the Fund, and discusses prior research on social justice that is relevant to the 9/11 claimants' experiences with the Fund. Part II of this article describes the methodology behind the study, in which seventy-one individuals who filed claims with the Fund completed surveys about their experiences with and perceptions of the Fund. Part III discusses the survey results. We found that participants were reasonably satisfied with the procedural aspects of the Fund, such as representatives' impartiality and respectful treatment. Participants were less satisfied, however, with the distributive aspects of the Fund, such as the unequal distribution of compensation and the reduction in compensation if claimants received compensation from other sources (e.g., life insurance). Part IV of this article addresses the implications of the study results for public policy and for theories of social justice.