Courts and Civil Justice in the Time of COVID: Emerging Trends and Questions to Ask
Helen Hershkoff & Arthur R. Miller, Courts and Civil Justice in the Time of COVID: Emerging Trends and Questions to Ask, 23 N.Y.U. J. LEGIS. & PUB. POL’Y (Forthcoming 2021)
108 Pages Posted: 23 Apr 2021
Date Written: Feb 1, 2021
COVID-19 is a highly infectious virus that has caused worldwide disruption, large numbers of deaths, and economic dislocation. Since its appearance in 2019, containment of COVID-19 has depended, in part, upon forms of social distancing that have strained and made impossible traditional forms of judicial and legal practice. This Article focuses on how state and federal courts in the United States so far have adapted to the COVID-19 pandemic. We argue that the judiciary's initial responses to COVID-19 were constrained by political decisions of the President and Congress that tended to magnify, rather than mitigate, some of the pandemic’s worst effects. We further show that the ability of the judiciary to make a quick transition to virtual practice drew from the courts' experience with legal technology, investments in electronic infrastructure, changes in legal education, and flexible procedural rules. These emergency measures are testing the limits of what it means to be in court and to have one’s day in court. By their nature, these measures do not address the extreme economic and racial inequalities that pre-existed but were exacerbated by political responses to the pandemic and that threaten the principle of equal justice under law. Whether these emergency judicial adaptations prove to be expedient and transient, or permanent and seismic, remains uncertain. We argue that the judiciary's response to the pandemic, although impressive, may not provide an appropriate blueprint for post-COVID court reforms.
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