Unsettling the Lawyers: Other Forms of Justice in Indigenous Claims of Expropriation, Abuse, and Injustice

University of Toronto Law Journal, Vol. 64, pp. 620-639, 2014

UC Irvine School of Law Research Paper No. 2014-47

21 Pages Posted: 14 Sep 2014

See all articles by Carrie Menkel-Meadow

Carrie Menkel-Meadow

University of California, Irvine School of Law; Georgetown University Law Center

Date Written: September 12, 2014

Abstract

This article considers, from the experience of the Indian Residential Schools Settlement, the limitations of the current formal justice system and the common ways that lawyers and parties act within it. Looking at the combinations of lawsuits, settlement negotiations, structured compensation schemes, truth and reconciliation processes, and memorial and education programs now provided for in the IRSS, the article suggests that we may need ‘process pluralism’ and different orientations to deal with modern mass harms: now recognized harms (like loss of culture, family, language, as well as physical, mental, and social injury) that the formal legal system has not yet developed the capacity to address. Placing the IRSS in a larger international context, the article suggests that some legal and social recognition of ‘new’ human harms and injuries has necessitated the development of different legal and quasi-legal processes. Whether called ‘restorative,’ ‘transitional,’ or ‘alternative’ justice, new forms of dealing with wrongs, harms, and conflicts will require redesigning legal processes and institutions; legal professional education; and social, cultural, and philosophical orientations to human injuries and ‘redress.’ Not all who are injured (both individually and in groups) want or require the same ‘remedies,’ and our conventional and historical common law and adversarial system must be adapted to the diverse needs of those who are injured by past and unconscionable wrongs, especially when inflicted by major governmental, religious, and civil society institutions and practices.

Keywords: transitional justice, restorative justice, alternative dispute resolution, legal process, legal profession, legal education

Suggested Citation

Menkel-Meadow, Carrie J., Unsettling the Lawyers: Other Forms of Justice in Indigenous Claims of Expropriation, Abuse, and Injustice (September 12, 2014). University of Toronto Law Journal, Vol. 64, pp. 620-639, 2014; UC Irvine School of Law Research Paper No. 2014-47. Available at SSRN: https://ssrn.com/abstract=2495539

Carrie J. Menkel-Meadow (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Drive
Irvine, CA 92697-1000
United States
949-824-1987 (Phone)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9379 (Phone)
202-662-9412 (Fax)

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