“Fair” v. “Most Fair”

Today we argued the appeal of our civil rights class action dealing with whether it is “fair” for the New Jersey Administrative Office of the Courts to pay restitution over to crime victims one-at-a-time or should it be distributed pro rata to all victims.  As usual, the panel of Lihotz, Parrillo and Messano was extremely well-prepped on the issues.  This was the firm’s 3rd appearance before the same appellate panel in 60 days (Our client has already prevailed in Zagami v. Cottrell, ___  N.J. Super. ___ (App.Div. 2008), (957 A.2d 691) and are awaiting the ruling in Constantine v. Bass River.) The discussion was quite lively.

One issue that arose was whether or not the Constitution requires that the process be “fair” or the “most fair”.  My response was that I do not expect there to be “grades” of fairness.  Something is either fair or unfair, just like a switch is “on” or “off” .  Otherwise the court would then have to define how fairness is graduated, giving rise to Constitutional conundrums that need not exist.

What do you think – is “fair” an all or nothing concept or are there grades of fairness?

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