Courts / Dispute Resolution

  • This section includes literature on civil and criminal proceedings.
  • Literature on judicial review of eg: administrative action, is listed with the topic eg: the Administrative Law section
  • Literature on international arbitration is listed in the International Law > International Arbitration section.
‘Administration of Justice’ [2020] (July) Public Law 548-549
Jurisdiction: UK
Abstract: Reviews the Lord Chief Justice's guidance to civil and family courts on the management of hearings and court proceedings during the coronavirus pandemic, a Protocol on remote hearings, priority court buildings that remain open for essential in-person hearings, a ‘Message to Circuit and District Judges’ in civil and family courts, and an Administrative Justice Council report, ‘Digitisation and Accessing Justice in the Community’.
Ahmed, Masood, ‘Alternative Dispute Resolution during the Covid-19 Crisis and Beyond’ (2021) 32(1) King’s Law Journal 147–156
Introduction: The civil justice system has reacted with unprecedented speed to the Covid-19 crisis to ensure that the courts continue to provide a vital public service in the administration of justice. The government’s measures of social distancing to tackle the spread of Covid-19 has meant that only the most critical hearings have been taking place in person. In adjusting to the new default position of remote hearings, the civil justice system has experienced a substantial and significant procedural change in the increased use of technology to help facilitate remote hearings and to support the judicial case management of disputes. This is not to suggest that the Covid-19 crisis alone has led to the increased use of technology, although there is no doubt that it is a major catalyst.

Alexander, Nadja Marie, 'Mediation: The New Normal?' (SSRN Scholarly Paper ID 3742561, 4 December 2020)
Abstract: Imagine a tightrope walker, walking along a tightrope, holding a long, light rod. To help her balance, the performing artist continually moves the rod, changing the angle of the rod to maintain a constant – her balance in space. If she were to hold the rod in a fixed position, what would happen? She would fall off. In other words, the variation of the rod has the function of maintaining the deeper continuity which enables the artist to make it to the other end, alive. In this essay, the tightrope walker offers a metaphor for dispute resolution systems. In order for a dispute resolution system to survive, it needs to be agile and adapt to changing circumstances; to evolve – just like a tightrope walker.

Allman, Kate, ‘Covid-19: Events Suspended; Hearings Move Online, but Rule of Law Will Continue “to the Extent Possible”’ (2020) (65) LSJ: Law Society of NSW Journal 16
Abstract: Courts have suspended face-to-face hearings and asked they be heard via telephone or online in a bid to follow "social distancing" recommendations and stem the spread of coronavirus in NSW.

Allman, Kate, ‘Courts: Jury Trials to Resume from 15 June’ (2020) (67) LSJ: Law Society of NSW Journal 22
Abstract: After a two-month hiatus due to COVID-19, jury trials will resume in NSW with strict new hygiene measures for anyone attending court.

Allman, Kate, ‘Hot Topic: Legal Threat or Mere Puff?’ (2020) (66) LSJ: Law Society of NSW Journal 24–25
Abstract: As COVID-19 spreads around the world, some groups have begun looking to the courts to seek legal reparations for the economic and societal damage it is causing. But can you sue a government for a global pandemic?

Anand, Anku, ‘Virtual Courts: The Changing Face of Indian Judicial System’ (SSRN Scholarly Paper ID 3865629, 12 June 2021)
Abstract: The global catastrophe has had a huge impact on India as well as on the Indian judiciary. Throughout India, all the courts have been suspended for more than two weeks, leading to a pause throughout trial proceedings. Access to justice is a constitutional right in order to ensure that there is no infringement of human rights and to optimize social isolation, the judiciary has turned to virtual justice. India’s first virtual court was launched in Faridabad in 2019. Until then, relatively little attempt has been made to convert traditional courts into virtual courts. On 26 November 2019, the President of India unveiled an application called ‘Supreme Court Vidhik Anuvaad Software,’ which is capable of translating English judicial records into nine vernacular languages and vice versa. The Official Multilingual Mobile Application of the Supreme Court of India will also be released to provide accurate real-time access to case status, review screen, judgements to lawyers and litigants, daily orders, etc. Much technical advancement has been made in the judiciary, such as capturing testimony by video conferencing , but a significant change to virtual courts has arisen as a result of the current Covid-19pandemic. Before delving into the key findings and recommendations of the PSC, one question considered by it is of immense importance. Is a court a place or a service? If a court is indeed a service, then it is simpler for it to function online. On the other hand, if a court is a place, more than a service, then that may bring nuances and complications of its own as far as the digitisation of courtrooms is concerned.

Anniwell, Brin and Alanna Van der Veen, ‘Practice and Procedure: Navigating the New Normal: The Virtual Court’ (2020) (67) LSJ: Law Society of NSW Journal 74-75
Abstract: Wherever possible, NSW courts are proceeding with hearings by audio-visual link ('AVL’). Courts have a discretion as to whether a matter should proceed by AVL. In some circumstances, it may be unfair to a party to proceed in that fashion. Just as it is important to employ persuasive techniques in the physical courtroom, so too is it important in the virtual courtroom: prepare and plan accordingly. Know your AVL technology and prepare your workspace in a way that conveys professionalism, minimises distractions and establishes a connection with the bench.

Ariani, Nevey Varida et al, ‘The Implementation of the Law of Criminal Procedure in Judicial Process During the Covid-19 Pandemic’ (Proceedings of the First International Conference on Law and Human Rights 2020 (ICLHR 2020), 2021) 200–208
Jurisdiction: Indonesia
Abstract: The spread of the 2019 coronavirus disease (covid-19) with the growing number of cases and deaths across regions and countries has impacted political, economic, social, cultural, legal, defense and security aspects as well as public welfare, including an impact on trial that can now be conducted virtually. Departing from this background, the problem is the Application of Criminal Procedure Law in the Judicial Process in the Covid-19 Pandemic Era. The objective of the present research is to analyze the legal aspects of the application of Criminal Procedure Law in the Judicial Process in the Covid-19 Pandemic Era. This study uses a qualitative method investigating legal materials in the form of statutory regulations, journals, and expert opinions. The previous trial process is referred to the Criminal Procedure Code and other laws that are presented open to the public and closed sessions at religious courts and were conducted directly (face to face) by judges, prosecutors, advocates, witnesses, and defendants. Several conditions have been carried out through teleconference media, but only limited to witness testimony. During this pandemic, through Perma 4/2020, criminal proceedings can be carried out electronically by coordinating with the prosecutor’s office and related detention centers/prisons, even though the Criminal Procedure Code has not yet been regulated. The rights of suspects and other parties including witnesses need to be fulfilled. These obstacles can then be overcome, one of which is by utilizing online media. This is in line with the principles of due court principles of law and the protection of the human rights of the parties. A government regulation in lieu of law (Perpu) is needed as an addition to an article in the RUU KUHAP that regulates virtual proceedings as a solution to filling the legal vacuum.

Ashby, Scott, ‘Sanitised Perspectives from Below the Bench: Coordinating COVID Safe Proceedings at the Supreme Court of Tasmania’ (2020) 39(1) University of Tasmania Law Review 39–46
Abstract: At the Supreme Court of Tasmania, the primary function of a judge’s associate is to coordinate proceedings in court and in-chambers. There are many moving parts to any given court proceeding, and it is an associate’s job to ensure that all the parts are in the right place at the right time. Pre- COVID (indeed since 1824) the majority of court proceedings would take place in court that is to say, in a court room full of people including judges, security staff ajudge’s attendant, ajudge’s associate, lawyers and their assistants, public spectators, witnesses, defendants, and prison officers. This commentary speaks to some of the changes in court proceedings one judge’s associate observed at the Supreme Court during the height of the COVID-19 pandemic in Tasmania.

Auslander, Philip, ‘Pandemic Proceedings: Legal Performance in the Time of Covid-19’ (2021) 43(3(129)) PAJ: A Journal of Performance and Art 77–86
Extract: Just two weeks after the federal government’s declaration of a national emergency on March 13, 2020, the Congress of the United States passed the Coronavirus Aid, Relief, and Economic Security Act (known as the CARES Act), a law designed to provide a range of emergency assistance to address the impact of the novel coronavirus. Included in its provisions are a number of measures directed to the judiciary, effective for the period from the beginning of the emergency until thirty days after it is declared to be over, one of which concerns ‘Video Teleconferencing for Criminal Procedures.’ This part of the law (sec. 15002) empowers ‘the chief judge of a district court . . . [to] authorize the use of video teleconferencing, or telephone conferencing if video teleconferencing is not reasonably available,’ in a range of legal proceedings if the judge feels the functioning of the court has been materially affected by the pandemic.
The legal proceedings mentioned in the CARES Act and the orders that flowed from it are all situations in which someone might appear before a judge: arraignments, initial appearances, preliminary hearings, misdemeanor pleas and sentencings, and the like. It is important to observe, first, that the CARES Act does not permit conducting trials by video teleconferencing, even under life-threatening emergency conditions, and second, that it required legislation for even the routine appearances mentioned in these documents to be carried out through mediatized communication rather than live physical co-presence in a courtroom. This speaks to the way live presence and performance in the courtroom are deeply engrained in the procedural fabric of American jurisprudence.

Azmi, Amylia Fuziana, Nik Salida Suhaila Nik Saleh and Zaharuddin Zakaria, ‘Jurisdictional Conflicts in Facing COVID-19 Pandemic: An Analysis of Hibah Cases in Negeri Sembilan Syariah Courts’ (2020) 3(1) INSLA E-Proceedings 622–628
Jurisdiction: Malaysia
Abstract: This study investigates the impacts of the Covid-19 pandemic on the number of hibah cases brought before the Syariah Courts in the state of Negeri Sembilan. In 2020, statistic reveals that a total number of 30 hibah cases have been registered in the Negeri Sembilan Syariah Courts. Interestingly, the total number of cases registered this year has decreased as compared to 51 cases for the previous year. This study discovers that the Covid-19 pandemic has an effect on the number of registered and resolved cases pertaining to hibahin Negeri Sembilan Syariah Courts. This study recommends that electronic method such as e-proceeding to be fully implemented so as to enable the public to access the court easily. It is hoped that findings of this study will shed light on the issue of jurisdictions concerninghibahand beneficial in providing clear and precise information on the jurisdiction of the Syariah Courts in deciding hibah matters.

Bailey, Diggory, ‘Judicial Anticipation of Legislation’ (2020) Statute Law Review, Article hmaa014 (advance online article, published 5 August 2020)
Jurisdiction: UK
Abstract: This note considers Re: A Company (Injunction to Restrain Presentation of Petition) [2020] EWHC 1406 (Ch) and Travelodge Ltd v. Prime Aesthetics Ltd [2020] EWHC 1217 (Ch) in the context of earlier case law and looks at the circumstances in which the courts have shown a willingness to have regard to the likelihood of future legislation.
Note: the litigation concerns a press release by the Secretary of State for Business, Energy and Industrial Strategy on 23 April 2020 which announced certain proposals designed to mitigate the effects of the Covid-19 pandemic on businesses and the economy. The legislation in question is the Corporate Insolvency and Governance Bill (‘the Bill’) was introduced into the House of Commons on 20 May 2020.

Baksi, Catherine, ‘Access Denied’ (2020) 163(6) Solicitors Journal 28-31
Jurisdiction: UK
Abstract: Reports on the increasing number of litigants in person (LiPs) in family and civil proceedings, and the disadvantages for those representing themselves in criminal proceedings. Notes additional problems created by remote hearings during the COVID-19 crisis.

Baldwin, Julie Marie, John M Eassey and Erika J Brooke, ‘Court Operations during the COVID-19 Pandemic’ (2020) 45(4) American Journal of Criminal Justice 743-758
Jurisdiction: USA
Abstract: This paper reviews the distinct nature of the COVID-19 pandemic and examines the resultant court responses and recommendations disseminated by various entities that support courts. Specifically, we contextualize the current environment the present pandemic has created by considering how it compares to the most-recent previous pandemics. We then review guidelines disseminated to the courts and the modifications and innovations implemented by the courts in response to the COVID-19 pandemic. Additional challenges related to these recommendations and modifications are identified and discussed.

Bandes, Susan A and Neal Feigenson, ‘Empathy and Remote Legal Proceedings’ (2021) 51(1): (Symposium on Courts in the COVID-19 Era) Southwestern Law Review (forthcoming)
Abstract: Do remote legal proceedings reduce empathy for litigants? Pre-COVID studies of remote bail hearings and immigration removal hearings concluded that the subjects were disadvantaged by the remote nature of the proceedings, and these findings are sometimes interpreted to mean that decision-makers tend to be less empathetic toward remote litigants. Reviewing both the pre-COVID literature and more current studies, we set out to determine whether empathy is reduced in virtual courts. The notion that it is more difficult for decision-makers to exercise empathy toward someone they encounter only on a video screen is consistent with findings that physical distance increases social and hence psychological distance, and may well be borne out by further research. However, while there are reasons to suspect that the exercise of empathy may be altered on Zoom or comparable platforms, thus far there is no firm evidence that the remote nature of legal proceedings, in itself, reduces empathy for litigants, witnesses, or other participants in legal proceedings. On the other hand, there are ample grounds for concern that remote proceedings may further disadvantage litigants who are already unequally burdened by empathy deficits based on race, social class, gender, ethnicity, or other factors that may differentiate them from decision-makers. We call attention to particular ways in which virtual proceedings may exacerbate these empathy deficits.

Bandes, Susan A and Neal Feigenson, ‘Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom’ (2020) 68(5) Buffalo Law Review 1275-1352
Abstract: Faith in the legitimating power of the live hearing or trial performed at the place of justice is at least as old as the Iliad. In public courtrooms, litigants appear together, evidence is presented, and decisions are openly and formally pronounced. The bedrock belief in the importance of the courtroom is rooted in common law, constitutional guarantees, and venerated tradition, as well as in folk knowledge. Courtrooms are widely believed to imbue adjudication with ‘a mystique of authenticity and legitimacy.’ The covid-19 pandemic, however, by compelling legal systems throughout the world to turn from physical courtrooms to virtual ones, disrupts and calls into question longstanding assumptions about the conditions essential for the delivery of justice. These questions are not merely tangential – they implicate many of the core beliefs undergirding the U.S. system of justice, including the whole notion of ‘a day in court’ as the promise of a synchronous, physically situated event with a live audience. Rather than regard virtual courts as just an unfortunate expedient, temporary or not, we use them as an occasion to reflect on the essential goals of the justice system, and to re-examine courtroom practices in light of those goals. We draw on social science to help identify what can be justified after the myths are pared away. Focusing on three interrelated aspects of traditional courts – the display and interpretation of demeanor evidence; the courtroom as a physical site of justice; and the presence of the public – we prompt a reassessment of what our legal culture should value most in courtroom adjudication and what we are willing to trade off to achieve it.

Bannon, Alicia and Douglas Keith, ‘Remote Court: Principles for Virtual Proceedings During the COVID-19 Pandemic and Beyond’ (2021) 115(6) Northwestern University Law Review 1875-1920
Abstract: Across the country, courts at every level have relied on remote technology to adapt the justice system to a once-a-century global pandemic. This Essay describes and assesses this unprecedented journey into virtual justice, paying particular attention to eviction proceedings. While many judges have touted remote court as a revolutionary innovation, the reality is more complex. Remote court has brought substantial time savings and convenience to those who are able to access and use the required technology, but it has also posed hurdles to individuals on the other side of the digital divide, particularly self-represented litigants. The remote court experience has varied substantially depending on the nature of the proceedings, the rules and procedures courts put in place, and the relevant court users’ resources and tech savvy. Critically, the challenges posed by remote court have often been less visible to judges than the efficiency benefits. Drawing on these lessons, this Essay identifies a series of principles that should inform future uses of remote technology. Ultimately, new technology should be embraced when—and only when—it is consistent with fair proceedings and access to justice for all.

Bar-Siman-Tov, Ittai, Itay Cohen and Chani Koth, ‘The Changing Role of Judicial Review during Prolonged Emergencies: The Israeli Supreme Court during COVID-19’ [2021] Legal Policy and Pandemics: The Journal of the Global Pandemic Network (forthcoming)
Abstract: This paper explores the role of the Israeli Supreme Court in exercising judicial review of COVID-19 control measures. It argues that the Court exhibited changes in its review methods and an adaptation of its role (and its demands from the other branches of government) throughout this prolong crisis. At the first stage, the Court focused on protecting institutional democratic safeguards, while exercising judicial restraint and greater deference than usual in its substantive review of the content of COVID-19 measures. The second stage, as time has passed, was characterized by greater judicial intervention, and growing propensity to hold COVID-19 measures unconstitutional, based on a combination of stricter substantive judicial review and an increased demand for an evidentiary and scientific basis to justify infringement of rights. The Israeli case therefore demonstrates the question of the changing role of judicial review in general (and of evidence-based judicial review in particular) during prolonged emergencies.

Beck, Andrew, ‘Litigation: COVID and the Courts’ [2020] (June) New Zealand Law Journal 177-180, 200
Abstract: The COVID-19 virus has caused substantial disruption to the normal operation of the world’s business. The pre-emptive action taken by the New Zealand Government following the issue of a pandemic notice under the Epidemic Preparedness Act 2006 effectively curtailed all but essential business for a period of 5 weeks.

Bell, Felicity et al, ‘The Use of Technology (And Other Measures) to Increase Court Capacity: A View from Australia’ (SSRN Scholarly Paper ID 3873637, 19 October 2020)
Abstract: This paper is a submission to the House of Commons Justice Committee Inquiry into Court Capacity. The purpose of this submission is to describe how technology has been used, especially during the COVID-19 pandemic, to increase court capacity in Australia. The submission identifies some challenges raised by the use of technology, and the responses to those challenges. The submission also covers some measures, not limited to technology, that have been taken to increase court capacity in response to COVID-19. Part I of this submission sets out the range of uses for which technology may be used in the justice system and develops a taxonomy of these uses. Part II provides an overview of the use of technology to increase court capacity in Australia, both before and during the COVID-19 pandemic. Part III identifies challenges that have arisen in connection with open justice, procedural fairness, access to justice and jury trials. We explain how Australian courts have responded to these challenges.

Bielik, Larysa et al, ‘Features of Criminal Proceedings (Pre-Trial and Trial Investigation) in the Time of Pandemic Covid-19’ (2020) 9(2) Ius Humani Law Journal 203-224
Jurisdiction: Ukraine
Abstract: The work is devoted to the main problems and features that have emerged in the field of criminal justice (pre-trial investigation and trial) in a pandemic. The relevance of this article is that criminal justice, like other areas of human activity, has been affected after the spread of Covid-19 and its recognition as a pandemic. The introduction of quarantine was accompanied by some problematic issues, including uncertainty in the work of the judiciary and law enforcement agencies, lack of a unified approach to court schedules, and the conduct of certain investigative actions. Thus, it is necessary to analyze the peculiarities of criminal proceedings in a pandemic. An explorative and collative methodology (that considers the comparative law) was used. The proposals have been made to address the problems that arise during the pre-trial investigation and criminal proceedings in a pandemic, in particular: the need to allow videoconferencing in criminal proceedings out of court; a list of programs for video communication have been defined; to provide adequate funding for technical re-equipment; to suspend the terms of criminal proceedings, and; to prevent in the future the situation of cancellation of previously adopted decisions on the strengthening of criminal liability for intentional infection.

Bicknell, Rachael, ‘‘ODR: The Next Leap Forward?’ (2020) 65(5) Journal of the Law Society of Scotland 26
Abstract: Discusses the benefits of online alternative dispute resolution (ODR) as part of measures globally to support individuals and businesses affected by the COVID-19 pandemic, and how ODR gives lawyers in Scotland an opportunity to better serve their clients where litigation through the Scottish courts is disproportionately expensive, slow and uncertain.

Brazile, Kevin C and Sherri R Carter, ‘Accessing Justice in a Pandemic’ (2020) 43(4) Los Angeles Lawyer 30–34
Jurisdiction: USA
Extract (page 32): Reinventing the largest court in the nation during a pandemic crisis required an extraordinary effort. Full-time working groups in every litigation area, and across the court’s administrative areas, worked tirelessly to create solutions, guided by a common set of principles: 1) preserve essential functions, 2) find ways to support those functions in a manner that supports social distancing of at least six feet, 3) appropriately delay non essential functions that cannot be safely supported, 4) craft solutions that are supported by key stakeholders and authorized by law, and 5) implement changes rapidly albeit in a way that can be sustained throughout the crisis. Court leadership had to figure out what it means to stay committed to access to justice while also being committed to flattening the curve.

Brown, Latoya, ‘Bad Law or Just Bad Timing?: Post-Pandemic Implications of Managed Care Advisory Group, LLC v. CIGNA Healthcare, Inc.’s Ban on the Use of Virtual Technology for Taking Non-Party Evidence Under Section 7 of the Federal Arbitration Act’ (2021) 75(4) University of Miami Law Review 1037–1086
Abstract: The COVID-19 pandemic has had an enormous socio-economic impact globally. To continue operations, the legal field, like other sectors, has had to adapt to the exigencies of the pandemic by, inter alia, becoming increasingly reliant on remote technologies to conduct business. Yet, only a few months before COVID-19 was declared a pandemic, the Eleventh Circuit ruled in Managed Care Advisory Group, LLC v. CIGNA Healthcare, Inc., 939 F.3d 1145 (11th Cir. 2019), that Section 7 of the Federal Arbitration Act (the ‘FAA’), 9 U.S.C. § 7, prohibits prehearing discovery and does not allow a summonsed witness to appear in locations outside the physical presence of the arbitrator and, thus, an arbitral summons for a witness to appear via video conference is not enforceable. Intellectually, Managed Care raises interesting issues concerning the textualist approach to statutory construction. For practical purposes, the opinion stands at odds with the realities of arbitration in the modern world, where remote technology has played a key role in the efficient administration of arbitration proceedings. Further, in light of the pandemic and its related health risks, the Eleventh Circuit’s opinion raises concerns about the conduct of arbitration proceedings, particularly when disclosure of information by non-parties is needed for a full and fair hearing. After examining the text of Section 7 and federal circuit courts’ opinions interpreting the provision, this Article proposes an alternate, perhaps timelier, textual interpretation of Section 7—one that remains true to the text, comports with the practicalities of modern arbitration, and anticipates challenges that will continue or arise in a post-pandemic world.

Byrom, Natalie, Sarah Beardon and Abby Kendrick, Rapid Review: The Impact of COVID-19 on the Civil Justice System: Report and Recommendations (Report, Civil Justice Council and Legal Education Foundation, June 2020) 1-93
Jurisdiction: UK
This review was undertaken by the Civil Justice Council between 1-15 May 2020. The aim of the review was:
  • To understand the impact of the arrangements necessitated by COVID-19 on court users.
  • To make practical recommendations to address any issues over the short to medium term.
  • To inform thinking about a longer-term review.
The Report’s findings include:
  • Understanding the context for remote hearings under COVID-19
  • Remote hearings under COVID-19—The experience of lawyers
  • Remote hearings during COVID-19—Satisfaction with hearings
  • Understanding remote hearings under COVID-19—The experience of lay users
  • Remote hearings under COVID-19—The impact on open justice
The Report also makes recommendations for recovery and managing the backlog of cases.
For an excellent summary and analysis of the Report’s key findings and recommendations, see Paul McGrath , ‘Civil Justice Council Report on the Impact of COVID-19 on Civil Courts’, ICLR Blog (Blog Post, 8 June 2020)

Cafaggi, Fabrizio and Paola Iamiceli, ‘Global Pandemic and the Role of Courts’ (SSRN Scholarly Paper ID 3866621, Social Science Research Network, 14 June 2021)
Abstract: While policy makers, legislators and scientists have been in the front line in designing the institutional and regulatory framework of the preparedness strategy, the role of courts has soon emerged as a key component of the institutional response to the challenges brought by the current pandemic. Not only courts have overseen statutory legislation and administrative acts, in order to assess their conformity with constitutional norms and the rule of law; but, on a more substantive level, courts have also been custodians of fundamental rights, ensuring the right balance between conflicting ones.This paper is intended to address a possible need for inter-institutional cooperation and to establish an ideal dialogue among courts and policy makers of different world regions, facing comparable issues in the context of the current pandemic.Legal changes have occurred within legislation, administration, and litigation, both at national and international levels. Are these changes permanent or temporary? Will they dissolve with the end of this pandemic or will the necessity to organize appropriate institutional global answers to similar phenomena generate long term changes, including a new role for global judicial cooperation? We predict that rules will be modified but the new principles or the new version of consolidated principles will stay.

Cafaggi, Fabrizio and Paola Iamiceli, ‘Uncertainty, Administrative Decision Making and Judicial Review: The Courts’ Perspectives’ (SSRN Scholarly Paper ID 3916801, 3 August 2021)
Abstract: The role of courts has been rather significant in the COVID-19 pandemic, weakening the theory that the judiciary is not equipped to manage emergencies and contribute to govern crisis management. Although the analysis shows that differences exist across countries, depending on institutional varieties and political contexts, the experience of COVID-19 has shown that, even in times of emergency, courts can adapt, and provide the necessary balance to the power shift towards the executives. Both action and inaction affecting fundamental rights have been scrutinised, with different intensity across countries, to ensure that governments took the necessary measures to contrast the pandemic, taking into account fundamental freedoms and the rule of law. Deference to political decision-making has varied across jurisdictions and along the multiple phases of the health crisis. Differences in the balancing have emerged compared to ordinary times. Uncertainty has played a major role, calling for new strategies in regulatory, administrative and judicial decision making, and new balances between precaution and evidence-based approaches. The role of scientific evidence in political and administrative decision-making has been at the core of judicial review aimed at ensuring transparency and procedural accountability. Proportionality and reasonableness with multiple conceptual variants, partly associated with the different national legal traditions, have been used to scrutinise the legality of restrictive governmental measures. Courts are likely to continue playing a significant but different role in the years to come, when liability issues and recovery measures will likely become the core of litigation.

Candler, Blake, ‘Court Adaptations during COVID-19 in the World’s Two Largest Democracies’ (SSRN Scholarly Paper ID 3609521, 24 May 2020)
Jurisdictions: United State and India
Abstract: Physical distancing measures to mitigate COVID-19 have significantly disrupted the judiciaries of both the United State and India. Courts are strained by an increased case backlog during and immediately after pandemics, as they receive more incoming cases and are less able to process them. Public safety interventions and economic decline cause the caseload to increase. The rate at which courts process cases, known as their disposal rate, decreases as in-person courtroom procedures are interrupted due to physical distancing requirements. Since the start of COVID-19, disposal rates have remained relatively high in the United States while they have plummeted in India. This article explores the main reasons for this difference, particularly the role of virtual courts. It also analyzes the benefits of virtual courts as well as their challenges, including data security and privacy, connectivity and remote access to files, and accountability to the public.

Canfield, Rachel A, ‘Zooming In on the Impact Florida’s Remote Civil Jury Trials May Have on Appellate Standards of Review’ (2021) 95(1) Florida Bar Journal 30–33
Abstract: The article discusses the possible effects of remote civil jury trials being piloted in Florida to the appellate standards of review and trial courts’ superior vantage points. Also cited are the use of the in-person jury system in Florida before the COVID-19 pandemic, the launching of the Remote Civil Jury Trial Pilot program to continue administering justice amidst the pandemic, and the possible elimination of the need for appellate deference by making video recordings as part of case records.

Caparelli, Christopher, ‘COVID-19's Impact on the U.S. Judiciary and Litigation (3 April 2020) 1 Emerging Areas of Practice Series: COVID-19 (Coronavirus), Westlaw Canada
Jurisdiction: Canada
Introduction: Due to the COVID-19 outbreak and escalating restrictions on Americans to stay at home as much as possible, U.S. courts at the state and federal levels are implementing emergency procedures in recognition of social distancing.
Because the U.S. judiciary is decentralized, no single contingency plan applies and each court is responsible for its own practices and procedures. As a result, the adjustments are varied and include restrictions on courthouse access, hearing and trial adjournments, deadline extensions, and allowance of remote appearances. It is important for litigants and their counsel to stay attuned to developments that are changing frequently by checking court websites, dockets and contacting the court as necessary.

‘Case Updates: COVID-19 Case Updates’ (2020) 32(4) Judicial Officers Bulletin 35–36
Jurisdiction: Australia
Abstract: Supreme Court : ‘Bail Act’ 2013, sections 16A, 16B, 17, 18, 19 - release application - evidence of effect of COVID-19 pandemic on criminal justice and prison systems - pandemic relevant to bail considerations - ‘Rakielbakhour v DPP’ [2020] NSWSC 323. Procedure -Trial procedure COVID-19 pandemic adjournment application granted trial in virtual courtroom impractical given technological difficulties accused’s right to a fair trial compromised - ‘R v Macdonald; E & M Obeid (No 11)’ [2020] NSWSC 382. Federal Court - Civil procedure - COVID-19 pandemic civil trial adjournment application refused virtual trial would have some adverse impact but not unjust to proceed to extent possible under public health regulations - ‘Capic v Ford Motor Company of Australia Ltd’ [2020] FCA 486

Casey, Conor, ‘Business as Usual? Irish Courts, the Constitution, and COVID-19’ [2021] Percorsi Constituzionali/Constitutional Paths (forthcoming)
Abstract: This article documents the Irish Courts treatment of legal challenges brought against the Irish State’s response to the COVID-19 pandemic. I outline how the Courts have continued acting throughout the pandemic as a forum of legal accountability for actions taken by the executive and legislature. In playing this role, I suggest the judiciary have neither displayed notable signs of enhanced deference nor assertive scrutiny. Instead, Irish Courts continued to apply the generic legal tools of procedural and substantive administrative and constitutional law with their typical cautious, but not supine, attitude to reviewing political branch action. For the most part, the broad attitude of the Courts displayed thus far has been that the general rules of Irish public law still apply. Overall, I suggest it is fair to say Irish Courts have been a cautious but important legal check on arbitrary political branch action during the pandemic.

Castelliano, Caio, Peter Grajzl and Eduardo Watanabe, ‘How Has the Covid19 Pandemic Impacted the Courts of Law? Evidence from Brazil’ (2021) 66 International Review of Law and Economics Article 105989 (article pre-proof, available online 31 March 2021)
Abstract: We provide empirical insight into the consequences of the Covid19 pandemic for the administration of justice. Drawing on a comprehensive monthly panel of Brazilian labor courts and using a difference-in-difference approach, we show that the pandemic has had a large and persistent deleterious effect on adjudicatory efficacy, leading to a massive decrease in the clearance rate and an increase in court backlogs. The pandemic has affected how courts dispose adjudication cases, expectedly causing a plummeting in the share of disputes resolved via trial hearings and, less predictably, exerting a temporally non-linear effect on the share of in-court settlements. Notably, we find no evidence of an effect of the pandemic on efficacy in enforcement. Although the pandemic led to an increase in the share of new filings requiring enforcement, any effect on the relative use of enforcement to execute court-ordered payments has been intermittent and temporary. The intensity of the pandemic has been an important moderating factor.

Chiodo, Suzanne, ‘Ontario Civil Justice Reform in the Wake of COVID-19: Inspired or Institutionalized?’ (2021) 57(3) Osgoode Hall Law Journal 801–833
Abstract: On 17 March 2020, Ontario’s courthouses shut their doors as the civil justice system locked down with the rest of the province. Regular court operations were suspended due to the state of emergency caused by the COVID-19 pandemic. This was followed by a flurry of activity as courts drew up plans to resume operations as soon as possible. The ‘new normal’ became virtual hearings, either by video conference, in writing, or by telephone. As Attorney General Douglas Downey said, ‘We’ve modernized the legal system by about 25 years in 25 days.’ Has the revolution arrived? Will the changes made in response to the pandemic become permanent? Will they be sufficient to address the problems of cost and delay that plague the civil justice system? This article will posit that many of these changes are likely to become permanent. However, the extent and effectiveness of change will depend on the ability of ‘policy entrepreneurs’ to use this moment of crisis to overcome institutional inertia in the Ministry of the Attorney General (MAG) and professional resistance in the Bar. This is not the first time that ‘dramatic innovation[s]’ have been made in response to a crisis in the civil justice system, as evidenced by the history of reform in that area. Lasting change will not come easily. Furthermore, while these changes are welcome, they are insufficient to address the crippling backlog facing the courts. A functioning civil justice system is essential to a functioning democracy, and Ontario’s civil justice system is fundamentally broken. The ‘paradigm shift’ needs to go further. We need to entirely change our conception of how courts work, the nature of procedural justice, and our understanding of access to justice and how to facilitate it. The answer I propose, as Richard Susskind and others have, is a system of online courts, where human judges hear evidence and arguments and render decisions by way of an online platform, all within a public dispute resolution (court or tribunal) system. British Columbia’s Civil Resolution Tribunal (BC CRT) is an excellent example. I argue that, as in BC, online courts could be initiated incrementally, alongside the current system, and thereby bypass and address many of the issues facing the current court system. I conclude with some thoughts for the future. Much has been written on the subject of online courts, and the COVID-19 crisis in Ontario has precipitated numerous blogs and online articles. However, no-one has yet conducted a deep analysis of the changes in Ontario and what they mean for our court system. More importantly, my article fills a gap in the literature on online courts in general, none of which has considered the history of civil justice reform and the nature of institutional change.

‘CIArb: Mediation as a Multidisciplinary Practice’ (2020) 170(7902) New Law Journal 22
Jurisdiction: UK
Abstract: Examines the increasing demand for mediation as a means of addressing court backlogs in the wake of the coronavirus pandemic.

Clift, Noel Rhys, ‘The Impact of COVID-19, Facilitative Mediation, Early Intervention and the New on-Line Visual ODR- Part 2’ (2021) 27 The Journal of International Maritime Law 189–203 (pre-print)
Abstract: THE COVID-19 pandemic has had widespread effects, notably on dispute resolution, on mediation practice and on court practice. Much of the change has the appearance of permanence. This is the second of two articles on this topic. The first touched on the pandemic and then looked in some depth at certain aspects of Facilitative Mediation (FM). This second article, by way of comparison, now addresses first Early Intervention (EM), a new form of mediation, and then the new Visual ODR, that is FM and EI on-line. These two articles can be read separately but are designed as a coherent whole.Introduction: This is the second of two papers published at the point of consolidation of a revolutionary new step in ADR, at a particularly striking moment, the British Government having, as at 19th July 2021, lifted substantially all formal, domestic restrictions imposed to curtail the spread of COVID-19. Facilitative Mediation (FM) has progressively become the dominant form of alternative dispute resolution (ADR) process in the UK and more widely aboard. FM is now probably the dominant form in major international disputes and the principal form of ADR chosen by the International Chamber of Commerce in Paris. The main reason is that it works, cases settle, problems are solved. The first paper was principally directed to that process.Early Intervention (EI), sometimes referred to as Early Intervention Mediation, is a new form of mediation. It has evolved from the original concepts that have made facilitative mediation so successful, but with differences that can prove useful, in particular cases. It offers a wide range of methods to reach consensus and settlement. This second paper now sets out, in fairly short form, some of the essential features of EI.Online Dispute Resolution (ODR) has existed from some point after the launch of the internet and widespread use of email, from about 1999 onwards. Software systems now offer the opportunity to conduct both traditional mediation and early intervention remotely, in a manner that broadly replicates the original concept in each case, but in a radical new way, as a new and enormously enhanced form of Visual ODR. This change has occurred with staggering rapidity. The COVID-19 pandemic and technology have made on-line mediation, and on-line EI, both a necessity and a credible, workable and effective new normal. This second paper in large part also deals with this new Visual ODR.At the end of this paper there are conclusions that touch on the material covered in both the first and second paper. Before turning to the main themes, this article looks very briefly at the nature of change and at dissonance between problems that become disputes, on the one hand, and the usual timetable for their resolution by formal process, on the other.

Conditions of Confinement, COVID-19, and the CDC’ 134(6) Harvard Law Review 2233–2256
Extract from Introduction: Section A surveys recent cases in the Eighth Amendment and Fourteenth Amendment conditions of confinement sphere to show that courts are giving excessive deference to Centers for Disease Control and Prevention (CDC) guidance and sometimes ceding the constitutional inquiry to the CDC altogether. Section B then argues that this level of deference is inappropriate given established principles of administrative and constitutional law. The CDC’s guidance represents the most informal of agency actions — it was promulgated with little process and involves details of prison administration outside the CDC’s expertise. Administrative law instructs courts to provide this sort of agency action little to no deference. Here, courts have done the opposite. Further, by inserting the CDC into constitutional cases, courts are abdicating a duty that is fundamentally theirs: to answer questions about what our society is willing to accept in the name of punishment. In fact, courts are deferring to CDC guidance which itself seems to subjugate the best public health advice to penological interests of incarceration. This results in a double deference of sorts: courts defer to the CDC which in turn defers to prison officials. Both public health and constitutional rights get lost along the way.

D’Aeth, Chris, ‘Virtual Courts in the Time of Coronavirus’ 32(8) Judicial Officers Bulletin 83–84
Abstract: The necessary changes to traditional courtroom practices that the 2020 public health crisis required have afforded the court the opportunity to review and evaluate alternatives. The author predicts that many of these changes will be retained once the pandemic fades.

Daulay, Royyan Mahmuda Al’Arisyi, ‘The Effectiveness of Application of Diversi During Covid-19 Pandemic Period in Balai Pemasyarakatan Kelas II Pekalongan’ (Proceedings of the First International Conference on Law and Human Rights 2020 (ICLHR 2020), 2021) 160–167
Jurisdiction: Indonesia
Abstract: Diversi is an effort to resolve cases written in Law Number 11 of 2012 concerning the Juvenile Criminal Court System. Diversi efforts are realized by bringing together children who are faced with the law and victims and other parties related to the goal of recovery. The implementation of diversi has been acknowledged by all law enforcement officials in Indonesia, including the Balai Pemasyarakatan Kelas II Pekalongan. However, since the emergence of the Covid-19 pandemic, the application of diversi in the juvenile criminal system has faced obstacles and challenges. The present study aims to identify the effectiveness of the application of diversi as a legal policy in the Child Criminal Justice System Act during the Covid-19 pandemic. This study uses a descriptive-analytic method with a qualitative-normative approach. Our data come from statutory regulations, legal theories, and interviews with informants from Bapas Kelas II Pekalongan. The results indicate that the application of diversi during the Covid-19 pandemic in Bapas Pekalongan environment has been running well despite several challenges and obstacles, such as constrained coordination between law enforcement officials due to social restrictions, constrained supervision when implementing the results of the diversi agreement and restricted access to social institutions as an effort to prevent the spread of the Covid-19 outbreak. Meanwhile, the recommendations offered include strengthening information technology as a solution to the coordination of law enforcement officials and maximizing the function of the village government as a partner to oversee the results of the diversi agreement.

Davies, Andrew, Victoria M Smiegocki and Hannah E Hall, ‘The Court Is in Recession: On the Implications of the COVID-19 Pandemic for Indigent Defense Spending’ (SMU Dedman School of Law Legal Studies Research Paper No 488, 2020)
Jurisdiction: USA
Abstract: What is the likely effect of the recession brought on by the COVID-19 pandemic on indigent defense budgets in the United States? To look forward, we look backward. We examine data on county-level spending on indigent defense in Texas during the Great Recession of 2007-2009. Redistributive policies – those which use tax payer funds to support individuals who themselves pay little or no tax – are particularly susceptible to cuts during times of fiscal stress. Yet our analysis shows indigent defense policy, measured in terms of spending and access to counsel rates, was generally stable through the Great Recession years, even in counties hit hardest. We attribute this apparent stability to two general explanations. First, certain factors made Texas unique: expenditures on indigent defense were already relatively low prior to 2007 and legal changes in the state shored up the mandate to supply representation. And second, the characterization of indigent defense itself as redistributive seems faulty. Indigent defense policy is also, in an important sense, a set of mutually-beneficial transactions between lawyers and judges, occurring with comparatively little oversight. The resilience of indigent defense services during times of scarcity suggests it is not only a policy which allocates funds to help the poor, but also is a policy which allocates funds in support of another clientele – the lawyers.

Davison, Matthew, ‘No Ordinary Process: The Flaws in Illinois Courts’ Use of Remote Video Technology in Mental Health Trials’ (2021) 30(1) Annals of Health Law and Life Sciences 137–176
Abstract: This article discusses and criticizes Illinois courts’ use of remote video conference technology in mental-health trials during the COVID-19 pandemic. It contends that, while the Illinois Supreme Court issued rules and guidance that directed how local courts should implement video conference technology with purpose and accommodations, the local courts (including the largest circuit court in Illinois) instead mandated remote video technology for mental health trials as a panacea without regard to participants’ preferences, objections, or disabilities. As detailed further, the issues only compound because of a separate shortcoming where, unlike other remote hearings and trials which are widely available to view by the public, no such public access links accompany any of these remote video mental health trials. Meaning, for the majority of 2020 and continuing to date (as of Feb. 20, 2021), trials involving fundamental liberty interests (i.e., involuntary commitments and forced administration of medications or electroconvulsive therapy) occurred out of public view, in a manner inconsistent with law and policy.

Davydenko, Dmitry, ‘Procedural Force Majeure and Hardship in ADR on the Example of the COVID Pandemic’ (SSRN Scholarly Paper ID 3841353, 14 May 2021)
Abstract: Not only the performance of a commercial contract but also the implementation of the chosen method of resolving a dispute may become impossible or excessively burdensome due to unexpected circumstances, such as the effect of restrictive measures during a pandemic. This puts in question the civil legal concepts of ‘force majeure’ and ‘hardship’. Usually, they are applied to substantive legal relations such as rendering services or delivery of goods. However, they arguably should be applied also to procedural legal relations. Unlike in substantive law, the main purpose of the application of these concepts does not consist in avoiding liability for failure to perform one’s duties but to authorize the dispute resolution provider to adapt the procedural form or timeframe to the unforeseeable circumstances.Legal concepts of force majeure and hardship should not normally excuse a party from fulfilling its agreement to arbitrate or mediate, or for the dispute resolution provider to refrain from administering ADR. Instead, they should constitute a ground to adapt the procedure to changed circumstances.The purpose of application of ‘procedural’ force majeure and hardship concepts consists in the elimination of obstacles in the resolution of disputes caused by uncontrollable and unforeseeable circumstances by means of adaptation of the procedure, taking into account the resources of the participants in a particular dispute.

Dernikovic, Fiona and Marion Wright, ‘Practice and Procedure: Adjournments and e-Trials in the COVID-19 Context’ (2020) (67) LSJ: Law Society of NSW Journal 68-70
Jurisdiction: Australia
Abstract: Two recent cases concerning adjournments illustrate the implications of the COVID-19 pandemic and the influence of the Federal Court’s Special Measures in Response to COVID-19 note on practice and procedure. It seems there has been a rapid re-adjustment of the drivers underlying the ‘just, quick and cheap’ rationale for the resolution of disputes, with parties having to demonstrate a certain level of prejudice or unfairness (as opposed to mere inconvenience), before an adjournment will be granted.

Dias, João Paulo et al, ‘Judicial Responses to COVID-19 Attack: Impacts on the Working Conditions of Portuguese Courts’ (2021) 12(2) International Journal for Court Administration Article 7
Abstract: The coronavirus outbreak shows the critical importance of health and safety at work measures and working conditions in all sectors of activity, including the judicial system. The COVID-19 crisis put pressure on the Portuguese judicial system to implement new procedures and practices in a very short time, which severed and exposed some previous identified fragilities of the judiciary organization and management of the judicial system, with consequences in the working conditions of the judicial professionals. The main objective of this article is to analyse the response(s) to the coronavirus crisis concerning the working conditions in the Portuguese judicial system. The pursuit of this objective involved the collection and analysis of legislation and regulation and online news, opinion pieces and press releases from the judicial associations and public official institutions from February to June 2020 concerning the response to the COVID-19 pandemic in the judicial system.

Dodson, Scott, ‘Videoconferencing and Procedural Doctrine’ (2021) Southwestern University Law Review (Symposium) (forthcoming)
Abstract: Enduring post-pandemic reliance on, and normalization of, videoconferencing in federal civil litigation and throughout society and commerce ought to have downstream effects on legal doctrines that depend upon contacts, burdens, and conveniences. Videoconferencing facilitates interstate contacts while mitigating burdens and costs associated with litigation in distant or otherwise geographically inconvenient forums, a fact that should broaden the reach of personal jurisdiction and influence venue transfer. The use of videoconferencing also should make certain discovery, like nonparty depositions, easier, quicker, cheaper, and more convenient—and therefore less objectionable. In this symposium essay, I consider the impact of normalized videoconferencing on these procedural doctrines. I begin by setting out the pandemic lessons for the use of videoconferencing technology in commercial, social, and litigation contexts, and I forecast its persistence post-pandemic. I then turn to various legal doctrines based on burdens and conveniences—including subpoenaed depositions, personal jurisdiction, and venue transfer—and I argue that videoconferencing will change the way these doctrines should be applied to post-pandemic civil litigation.

Dodson, Scott, Lee Rosenthal and Christopher Dodson, ‘The Zooming of Federal Civil Litigation’ (2020) 104 (Fall) Judicature (forthcoming)
Abstract: Federal civil practice has adapted to the COVID-19 pandemic by using new technologies, including, prominently, remote technology. How will reliance on remote technology during this pandemic transform lawyers, courts, and the law going forward? What changes to civil litigation practice should be embraced, what changes should be discarded, and what changes should await further technological advances? We explore these questions. Surveying some key pandemic-fueled developments of remote technology in federal civil litigation, we conclude that the pandemic’s push toward the zooming of legal practice is likely to leave enduring marks. We identify the most promising uses for remote technology, strike cautionary notes for more pervasive implementation, and offer some suggestions for moving forward.

Draper, Brandon Marc, ‘And Justice for None: How COVID-19 Is Crippling the Criminal Jury Right’ (2021) 62(9) Boston College Law Review (Electronic Supplement, Article 1)
Abstract: The jury trial is the cornerstone of the criminal justice system in the United States. Amid the COVID-19 pandemic, however, access to fair and constitutional jury trials has largely come to a halt. Courts correctly decided to stop all jury trials and other in-person proceedings as the nation learned more about a new and deadly virus. Nevertheless, this decision denied access to an important constitutional right. In response, some courts employed video conference technology such as Zoom and WebEx to conduct arraignments, general court appearances, and some pretrial hearings. Six months into the pandemic, some criminal courts are beginning to consider and test two adaptations of jury trials to attempt to meet the needs of the system: (1) trials that are both in-person and compliant with social distancing policies and (2) trials conducted exclusively via video conference. This Essay argues that at best, these solutions are grossly unfair to all of those who participate in the criminal justice system. At worst, they likely violate the Sixth Amendment rights of the accused and create ethical concerns for prosecutors, defense attorneys, judges, and jurors. Yet, even with these legitimate concerns, courts should attempt to mitigate the risks and resume jury trials that are both in-person and compliant with social distancing policies to provide the criminal justice system with the best opportunity to ensure fair jury trials.

Dresner, Stewart, ‘Courts will not go Back to Where They Were Pre-Pandemic’ (2020) 110(July) Privacy Laws and Business United Kingdom Newsletter 16-17

Jurisdiction: UK
Abstract: Anticipates a lasting shift to the use of online courts beyond the COVID-19 pandemic in light of the argument by Richard Susskind, President of the Society for Computers and Law, that a court is a service, rather than a place and that users should become familiar with this method of justice. Considers the types of case which are suited to the online court process. Outlines the advantages and limitations of online courts.

Dunham, Kassadie et al, ‘The Impact of Remote Work on Post-Pandemic Law’ (2021) 1(3) Idaho Law Review Spotlight 1–16
Abstract: As the state reopens, courts across the state are now faced with difficult decisions, often based on each county’s particular circumstances. It is challenging to state what the future of Idaho’s judicial system will look like; however, after researching and talking to practitioners throughout the state, it appears unlikely we will see remote court appearances disappear any time soon.

Edmondson, Alison, ‘Opinion’ (2020) 65(5) Journal of the Law Society of Scotland 5
Abstract: Reflects on the response of the Scottish Courts and Tribunals Service to remote hearings following the COVID-19-related lockdown compared to court services in other jurisdictions, due to the Scottish Government’s view that civil courts are merely a private dispute resolution service. Argues that individuals must in principle have unimpeded access to the courts in compliance with ECHR art.6.

‘Effects of the Covid-19 Crisis on Limitation Periods’ [2020] Lawyer (Online Edition) 1
Abstract: The article offers information on the enactment of Indian 2nd COVID-19 Act on limitation periods. It mentions that there is a substantively significant provision in Section 2, the period from the entry into force of this federal law on March 22, 2020 until the end of April 30, 2020 is the time in which a lawsuit or an application may be filed with a court or a Declaration is not included. It also mentions that deadlines for appealing to the court will be suspended in the advent of COVID-19.

Embley, PL, ‘Judicial Perspectives on ODR and Other Virtual Court Processes’ (SSRN Scholarly Paper ID 3638459, 18 May 2020)
Jurisdiction: USA
Abstract: Just a few months ago, most US courts significantly lagged behind banking, education, retail, healthcare, and other industries in the use of technology. Until mid-March 2020, that is, when US courts suddenly, overwhelmingly embraced some uses of technology, almost overnight, because they had to. Virtual hearings and ODR are opening up new possibilities that are not only keeping courts functioning during the pandemic, but also showing promise in helping resolve seemingly intractable access to justice issues. When the dangers of the COVID-19 virus have passed, courts anticipate a surge of filings. ODR and virtual hearings can ‘scale’ to meet surges in demand in ways that traditional processes cannot. Out of necessity in response to an unprecedented pandemic, courts are boldly embracing changes that are bringing more court processes into line with available technologies and public expectations.

Embley, PL, ‘Managing Evidence for Virtual Hearings’ (SSRN Scholarly Paper ID 3638363, 25 June 2020)
Jurisdiction: USA
Abstract: As a result of stay-at-home orders tied to the COVID-19 pandemic, courts in most states are conducting virtual hearings: using technology to facilitate a hearing without the judge and the parties being physically gathered in one location. Evidence is a key aspect of those virtual hearings. Much can be gleaned from the ways other types of organizations do business virtually. However, courts have unique needs that require thoughtful attention as they impact how evidence is submitted, stored, and shared to support a virtual hearing.

Engstrom, David Freeman, ‘Post-COVID Courts’ (2020) 68(Special Issue: Law Meets World) UCLA Law Review Discourse 246–267 replacement
Jurisdiction: USA
Abstract: As with so much else in American life, COVID-19 delivered a gut punch to our justice system. And the worst is yet to come, as federal and state courts alike are soon to fill with cases reflecting the failing finances and fraying relationships of our sheltered-in-place lives. But in truth, our courts were already at a crossroads: chronically underfunded, increasingly politicized, behind the curve technologically, and shockingly out of touch with the justice needs of ordinary Americans. This Essay argues that it is time—with states, for better or worse, reopening—to begin thinking longer term. For the coronavirus pandemic is quickening a pair of tectonic shifts, both well underway when the first diagnoses were made, with the power to reshape the legal system for good and for ill by fundamentally altering the role lawyers play within it. The first is the erosion of the professional monopoly that lawyers have long enjoyed over the delivery of legal services and the steady empowerment of new legally trained professionals to help satisfy justice needs. The second is the adoption of new technologies, many using artificial intelligence, to supplement or even supplant lawyers’ work. Looking back, the coronavirus’s greatest legacy for the legal system may well be its hastening of the arrival of an age of supersession—the decentering and displacement of lawyers by nonlawyers of both the human and nonhuman sort. The question judges, lawyers, rulemakers, and legislators should be asking is not merely how to safely reopen the courts. We should also ask how the post-pandemic justice system will look different—and how it might even emerge from the current crisis better than before.

Fabri, Marco, ‘Will COVID-19 Accelerate Implementation of ICT in Courts?’ (2021) 12(2) International Journal for Court Administration Article 2
Abstract: The COVID-19 pandemic with the need to keep physical distance has suddenly increased the use of digital tools in all business areas and social activities, including the judiciary, demonstrating the need to accelerate the digitalisation of the handling of cases, access to justice, and audio-video communications. The outbreak has clearly displayed the problems that affects the general functioning of the various justice systems, and the limited, and often not very effective, use of information and communication technologies. The challenge now is to keep and further develop what has been useful and abandon what has been shown to be too problematic, or maybe just too premature for the time being. This paper tries to answer the question: ‘Will COVID-19 accelerate implementation of ICT in courts?’

Fekete, Gábor, ‘Videoconference Hearings after the Times of Pandemic’ (2021) 5(EU 2021 – The Future of the EU in and After the Pandemic) EU and Comparative Law Issues and Challenges Series (ECLIC) 468–486
Abstract: The sanitary crisis of the Covid-19 pandemic resulted in several changes in the way courts communicate, can be reached and handle cases. The so-called videoconferencing became one of the accepted ways of the hearings. This kind of videoconferencing took place on online videoconference solutions, which differ a lot from the conventional videoconference systems. After the exceptional situation, it remained a question whether the digital revolution of court proceedings had arrived or the use of videoconferencing should remain an exceptional instrument. The application of a videoconference system is the subject of the right to a fair trial, in this regard it has been contested by the European Court of Human Rights in several cases. This case law stated several expectations and reveals many aspects, which have to be applied to the online videoconference solutions. On the other hand, the wider use of legal tech instruments is the subject of the political will. The political support is crystallizing within the EU, whose right to act is limited. The interim measures which were introduced under the emergency law regimes on national level show a number of experiences on how the continuous and legally founded functioning of the justice system can be ensured, for example by the use of online video hearings. The balance between the effectivity and the legality is a crucial question. Upon the above-mentioned sources, the paper introduces the differences of the two methods of videoconferencing. It examines the legal requirements, details the experiences and shows the opportunities of the use of videoconference systems and online videoconference solutions in civil cases. The use of videoconference in civil hearings can be an instrument conforming to procedural right. The general application of videoconference, especially the online solution lowers the threshold to access the justice, accelerates the procedures, ensures social distancing, but requires both legal and technical preparedness.

Finn, Sean E, ‘Class Conflict in a Time of Plague: COVID-19 and the Class Actions to Which it is Giving Rise’ (11 June 2020) 1 Emerging Areas of Practice Series: COVID-19 (Coronavirus), Westlaw Canada
Jurisdiction: North America, with focus on Québec
Introduction: At different times throughout history, our planet has been caught up in events that impinge upon almost everyone. Transformative technology, catastrophic wars, and stock market crashes are amongst them. So are pandemics. At the time of writing, approximately 6.66 million people worldwide are infected with the novel Coronavirus (“COVID-19”),and of these over 393,000, many of them elderly, have succumbed to this easily communicable infection.2 The human toll of the current health crisis is enormous. Enormous too are the psychological and economic consequences of the lockdowns that have paralysed economies in Asia, Europe, North America, and other parts of the globe. Businesses and entire industries have been shuttered in an effort to prevent the exponential spread of COVID-19 and the corresponding exhaustion of health care resources. As countries relax restrictions and shops reopen, employees return to their jobs, and some semblance of normalcy descends on a still traumatized world, the wheels of the civil justice system, temporarily idled, will begin to accelerate once more. Perhaps not surprisingly, allegations of negligence, neglect, breach of contract, and collusion, among others, have already been asserted in the context of numerous class actions stemming from COVID-19. While it would be impossible to look at the hundreds of new cases that have been commenced in the United States and Canada, closer attention will instead be paid to those that have been filed in Québec, a jurisdiction that is fertile ground for such proceedings and a microcosm of the continent as a whole.

Fowowe, Adetomiwa, ‘The Reality of Nigerian Legal System After COVID-19 Pandemic’ (SSRN Scholarly Paper ID 3709757, 20 August 2020)
Abstract: There is no gainsaying the fact that the coronavirus (COVID-19) caught the world and every of its sector unawares are we are still napping as to what the solution to it is, more so that the virology is yet known. Within a very short period of its hit, it became a pandemic and has crippled the socio-political and the economic life or the world, the judiciary not spared. In relation to the vast importance of the judiciary, it necessitated its desperation to find a new means of operation; a virtual court system. This paper scrutinizes the importance of a virtual court system in Nigeria vis-à-vis the COVID-19 pandemic. Amongst other recommendations, this paper subscribes to an adequate funding in order to ensure an efficient operation of a virtual court system in Nigeria.

Gagnon, Alysha and Samahria Alpern, ‘Reimagining Youth Justice: How the Dual Crises of COVID-19 and Racial Injustice Inform Judicial Policymaking and Reform’ (2021) 72(2) Juvenile and Family Court Journal 5–22
Abstract: The COVID-19 pandemic and the rejuvenated movement for racial justice in 2020 have presented an opportunity to reimagine the roles, practices, and policies of juvenile and family court systems actors. In order to capture contemporary ideas about judicial practice and policy reforms, semi-structured interviews were conducted with Hon. Edwina Mendelson, Deputy Chief Administrative Judge for the Office of Justice Initiatives in New York State, and Hon. Steven Teske, Chief Judge of the Juvenile Court of Clayton County, Georgia. These interviews yielded several recommendations for judicial reform in youth justice (e.g., implement court-wide procedural justice practices, improve accessibility using technology). These recommendations can be used by systems actors across the country, particularly those interested in adapting their courtroom practices for a post-pandemic world.

Gealy, Stephen, Jean Sternlight and Amy Van Horne, ‘Panel Discussion: Mediation in the Age of Covid and Beyond’ (2021) 54(4) Creighton Law Review 519–536
Abstract: The following is a lightly edited transcript of a panel discussion from the 2021 Creighton Law Review Symposium: Alternative Dispute Resolution in the Business Setting, on February 26, 2021. This Symposium combined the latest academic research, practitioner expertise, and legal updates on the use of negotiation, mediation, and arbitration in business and the workplace. In addition, the program celebrated the Werner Institute’s 15th Anniversary at Creighton University. This panel discussion was during session 2: ‘Mediation in the Age of COVID and Beyond.’ Panelists Stephen Gealy, Jean Sternlight, and Amy Van Horne discussed the recent move to online mediation and the psychological impacts of online lawyering, commenting on which approaches enhance effective advocacy and how technology might influence psychological factors such as fatigue, empathy, perception, and credibility.

Golder, Papiya, ‘Future of Virtual Courts in India Post Pandemic: An Analysis’ (2020) 7(2) International Journal of Research and Analytical Reviews 982-987
Abstract: The COVID-19 pandemic has surely caused an economic depression and various other catastrophes (like that to the health sector and industrial sector). A Similar impact has been made to the legal sector of the country. Due to the nation-wide lockdown, The Supreme Court of India, almost every High Court has been temporarily closed. But can this crisis be used as an opportunity?

Grayson-Morison, Reegan and Stacey Steele, ‘Judicial Responses to COVID-19: Japanese and Victorian Courts' Use of Technology’ (Asian Legal Conversations: COVID-19, Asian Law Centre, Melbourne Law School, 23 June 2020)

Grolman, Leah, ‘Remote Hearings: The New Normal?’ [2020] (June) Computers and Law 50-51
Jurisdiction: UK
Abstract: Presents the experience of the author, an associate solicitor, of attending two remote hearings at the Technology and Construction Court and the Chancery Division during the COVID-19 lockdown, and her thoughts on whether such hearings should become the default option following the COVID-19 crisis.

Ha-Redeye, Omar et al, ‘Being Innovative in Exploring Litigation Alternatives’ (Ontario Bar Association, Innovation in Trusts & Estates Law, 15 June 2020)
Abstract: The COVID-19 pandemic has provided numerous challenges to legal practitioners, and especially in the area of virtual commissioning and notarization. This paper looks at some of the legislative developments during the pandemic, as well as some of the technical requirements that might make online commissioning and notarization possible, while utilizing an anti-oppression framework. Finally, the paper reviews some of the advances in artificial intelligence that might be of interest to the trust and estates bar.

Hack, Andrew and Jeff Brown, ‘Legal Update: COVID-19: Will My Hearing Go Ahead?’ (2020) 32(2) Australian Restructuring Insolvency & Turnaround Association Journal 33-36
Abstract: How the courts have been responding to the practical issues of lock-down.

Haigh, Richard and Bruce Preston, ‘The Court System in a Time of Crisis: COVID-19 and Issues in Court Administration’ (2021) 57(3) Osgoode Hall Law Journal 869–904
Abstract: Canadian courts, in many ways, are neither efficient nor effective. This has been clear for many years. This article looks broadly at how little attention has been paid to court administration in the past, especially during times of crisis, and examines the impact the current pandemic may have on the future of Canadian court administration. In this vein, we examine emergency plans in general before turning to pandemic-specific plans and how, especially in Canada, these have been found wanting during this current crisis. Like most organizations, courts have developed plans – business contingency (BCPs) in Canada and continuity of operation (COOPs) in the United States—laying out policies and processes to follow in an emergency. Yet none of the various disaster plans created by courts in both Canada and the United States highlight the role and importance technology would play. Despite the increasing use of remote access for hearings—there has been a great deal of success in scheduling appeal hearings remotely—most courts have been unable to operate at pre-pandemic levels. In fact, most courts have postponed the majority of their hearings and have had to push dockets forward. Postponing a large portion of the courts’ hearings will undoubtedly add to a backlog of cases and increase the administrative burden on operations once physical distancing is removed. But the change in attitude that has taken place over the past few months is arguably greater than the sum of all changes made over the last forty years since Carl Baar’s reference to courts being ‘horse-and-buggy’ organizations. The pandemic has provided a perfect occasion—no doubt forced but relatively low-risk—to try new things. Our position is that steps need to be taken to ensure that an increased reliance on ‘privileged access to technology’ during COVID-19 does not lead to an ‘exacerbation of denial of access to justice.’

Hamlyn, Michelle, ‘A Health Check on Open Justice in the Age of COVID-19: The Case for the Ongoing Relevance of Court Reporters’ (2020) 42(5) Bulletin (Law Society of South Australia) 6-8
Jurisdiction: Australia
Extract: The importance of the media’s role is heightened by the disruption to the courts’ usual processes wrought by COVID-19 public health directives. A review of the cause lists reveals hearings being conducted, variously, in physical courtrooms, in virtual courtrooms hosted on Webex or Teams, or by telephone. Pleasingly, the courts appear mindful of the requirements of open justice in this changing landscape. In most cases it remains possible for non-parties to obtain dial in details and observe proceedings, albeit at the court’s discretion, and with varying levels of ‘invitation’ versus requiring increased initiative by the nonparty. Some limited matters of substantial public interest are reportedly being livestreamed, and there are undoubtedly opportunities as well as risks associated with that. However, there remains at present a greater risk of persons who intended to observe a hearing being unable to do so due to lack of preparedness or technical difficulties.

Hans, Valerie P, ‘Virtual Juries’ (Cornell Legal Studies Research Paper No 21–16, 4 June 2021)
Jurisdiction: USA
Abstract: The introduction of virtual or remote jury trials in response to the COVID-19 pandemic constitutes a remarkable natural experiment with one of our nation’s central democratic institutions. Although it is not a tightly controlled experimental study, real world experiences in this natural experiment offer some insights about how key features of trial by jury are affected by a virtual procedure. This article surveys the landscape of virtual jury trials. It examines the issues of jury representativeness, the adequacy of virtual jury selection, the quality of decision making, and the public’s access to jury trial proceedings. Many have expressed concern that the digital divide would negatively affect jury representativeness. Surprisingly, there is some preliminary evidence that suggests that virtual jury selection procedures lead to jury venires that are as diverse, if not more diverse, than pre-pandemic jury venires. Lawyers in a demonstration project reacted favorably to virtual voir dire when it was accompanied by expansive pretrial juror questionnaires and the opportunity to question prospective jurors. A number of courts provided public access by live streaming jury trials. How a virtual jury trial affects jurors’ interpretations of witness testimony, attorney arguments, and jury deliberation remain open questions.

Harvey, David, ‘Courts and COVID-19: Delivering the Rule of Law in a Time of Crisis’ (2020) 9(1) Journal of Civil Litigation and Practice 59-63
Jurisdiction: New Zealand
Abstract: This section considers the effects of the COVID-19 pandemic upon the operation of the courts and the delivery of justice services in New Zealand. It argues that COVID-19 has demonstrated the fragility and fallibility of the physical presence

Heinsch, Milena et al, ‘Death Sentencing by Zoom: An Actor-Network Theory Analysis’ (SSRN Scholarly Paper ID 3646607, 9 July 2020)
Abstract: As a result of the COVID-19 pandemic, courts around the world have relied on a range of technologies to cope with social distancing requirements. Jury trials have often been delayed, although some jurisdictions have moved to remote jury approaches and video conferencing has been used extensively for bail applications. Video conferencing has also been used to a more limited extent in the area of sentencing. However, many were recently appalled by the news that two people had been sentenced to death via Zoom. This article uses Actor Network Theory to explore the role of technology in reshaping the experience of those involved in the sentencing of Punithan Genasan in Singapore.

Hoole, Gregory N and George M Haley, ‘How Mediators Leverage Technology to Overcome COVID-19 Concerns and Keep Cases Settling’ (2020) 33(3) Utah Bar Journal 22–23

‘House of Commons Justice Committee Issues Report on Effect of Covid-19 on the Courts’ (2020) (August) Computers and Law 46-47
Jurisdiction: UK
Abstract: Discusses the House of Commons Justice Committee’s report on the effect of COVID-19 on the courts and tribunals in England and Wales. Highlights issues surrounding the use of remote hearings and the need to ensure that court users, particularly those who may be considered to be vulnerable, are sufficiently able to follow and participate in virtual processes.
Note: this report is Justice Committee, Coronavirus (COVID-19): The Impact on Courts (House of Commons Paper No 519, Session 2019-21 (2020)

Hrdinova, Jana et al, ‘Documenting the Challenges (and Documents) As Ohio Courts Respond to COVID-19’ (Ohio State Public Law Working Paper No 541, 2020)
Abstract: As the coronavirus led to the vast majority of Americans living under stay-at-home orders, government institutions confronted a public health imperative to slow the spread of a communicable disease while still maintaining vital services for their constituents. Judicial branches of governments faced particular challenges given the traditional face-to-face and often time-sensitive nature of their work. Further, while governors can generally exercise centralized control over many parts of the executive branch of government, the judicial function in many states does not operate under a single chief administrator. Ohio represents one such non-unified court system, and this research project sought to review and summarize the formal responses of Ohio courts in the weeks during which the state began shutting down non-essential services in response to the COVID pandemic. This review reveals considerable formal action in service of minimizing physical appearances at court, but also highlights that relatively few court orders included express provisions aimed at decreasing the number of people entering prisons or authorizing proactive steps to release people from detention.

Jacobi, Tonja et al, ‘Oral Argument in the Time of COVID: The Chief Plays Calvinball’ (SSRN Scholarly Paper ID 3678316, 20 August 2020)
Jurisdiction: USA
Abstract: In this Article, we empirically assess the Supreme Court’s experiment in hearing telephonic oral arguments. We compare the telephonic hearings to those heard in-person by the current Court and examine whether the justices followed norms of fairness and equality. We show that the telephonic forum changed the dynamics of oral argument in a way that gave the Chief Justice new power, and that Chief Justice Roberts, knowingly or unknowingly, used that new power to benefit his ideological allies. We also show that the Chief interrupted the female justices disproportionately more than the male justices and gave the male justices more substantive opportunity to have their questions answered. This analysis transcends the significance of individual cases. The fact that the Court experimented with telephonic oral argument, the way it did so, and how the practice could be improved are all issues of profound national importance. The new format had the potential to influence the outcome of cases that have broad national significance, to shift norms of equality and transparency at the Court, and more generally to affect judicial legitimacy. If the Court favors certain parties or certain ideological camps by its choice of forum in a time of crisis, then that will undermine not only the Court’s claim to legitimacy but it also raises doubts whether any of our national institutions have the capacity to adapt to crises more generally.

Jamila, Fadilla, Melantik Rompegading and Wahyu Hidayat, ‘The Effectiveness of Virtual Trials for Criminal Proceeding as an Effort to Mitigate the Spread of Corona Virus During the Covid-19 Pandemic’ (Proceedings of the First International Conference on Law and Human Rights 2020 (ICLHR 2020), 2021) 191–199
Abstract: The first case of Covid-19 in Indonesia was found on 2 March 2020. Although enforcing health protocol is essential in this situation, the law enforcement to the community could not be set aside, especially for criminal proceeding highly related to human rights. Therefore, following the rise of the domestic cases, the Indonesia Supreme Court in cooperation with the Attorney General and the Ministry of Law and Human Rights has agreed to conclude an MOU deciding that during the Covid-19 Pandemic, the criminal proceeding will be conducted through virtual trial to mitigate the spread of the virus. It has been performed for approximately seven months and it is still ongoing. This is not a new practice in our court system as Supreme Court already has the e-court and e-Litigation programs long before the pandemic. Nevertheless, it focused on private proceedings instead of a criminal proceeding and it still has limited roles. This research aims to analyze the effectiveness of virtual trials for criminal proceedings during the Covid-19 pandemic in General Courts by using a normative-empirical approach. The results of the research show that although the criminal proceedings have been conducted through virtual trials, it does not reduce the rights of the accused to seek justice. Furthermore, it has both advantages and disadvantages. Virtual trials help reduce the physical contact in court particularly in criminal proceedings. Thus, it helps mitigate the spread of virus among the judges, court staff, prosecutors, advocates, and the accused. However, the lack of facilities in relevant places such as courts, prosecutor offices, prisons, and detention houses becomes obstacle in carrying out the trial process. Virtual criminal proceedings also make it difficult for public prosecutors, judges, and advocates to gather facts through questions to the accused. Moreover, several aspects should be addressed and improved to provide better legal services to society.

Jones, Mark, ‘Being a Judge in Juvenile Court During COVID-19’ (2020) 23(4) Judicial Division Record 1–5
Jurisdiction: USA
Abstract: When I was asked to write this brief article about what it’s like being a judge in a juvenile court during the pandemic, my first thought was: "That’s easy: frustrating. No more denial hearings in delinquency cases or adjudicative hearings in CHINS or TPRs; in other words, no more hearings - for a while - of those cases in which we’re all used to face-to-face examination and cross-examination. Can the clients talk confidentially with their counsel during the hearing when they are in two different geographical areas, and one is on a phone and the other a laptop, in the middle of a video hearing?

‘Justice System Responds to COVID-19 Crisis’ (2020) 42(3) Bulletin (Law Society of South Australia) 26
Abstract: The COVID-19 pandemic has created unprecedented challenges for all industries, and the legal industry is no exception.

Kamber, Krešimir and Lana Kovačić Markić, ‘Administration of Justice During The Covid-19 Pandemic and the Right to a Fair Trial’ (2021) 5(EU 2021 – The Future of the EU in and After the Pandemic) EU and Comparative Law Issues and Challenges Series (ECLIC) 1049–1083
Abstract: On 11 March 2020 the World Health Organization announced the Covid-19 (coronavirus) to be a pandemic. To combat the pandemic, many countries had to adopt emergency measures and some of these measures have affected the judicial system, especially the functioning of courts. The pandemic has been characterised as far as the judiciary is concerned by complete or partial closure of court buildings for the parties and for the public. It is clear that the functioning of national judicial systems has been severely disrupted. This limited functioning of courts impacted the individuals’ right to a fair trial guaranteed, in particular, under Article 6 of the European Convention on Human Rights. The aim of this article is to examine the manner of the administration of justice during the Covid pandemic and its impact on the due process guarantees. Focus is put on the extent to which different Covid measures, in particular remote access to justice and online hearings have impacted the guarantees of the right to a fair trial and the due process guarantees in general, notably in detention cases. In this connection, the article provides a comparative overview of the functioning of the European legal systems during the pandemic. It also looks into the way in which the two European courts – the European Court of Human Rights and the Court of Justice of the European Union functioned, as well as the way in which the Croatian courts, including the Constitutional Court, organised their work during the pandemic. The article then provides an insight into the issue of online/remote hearings in the case-law of the European Court of Human Rights and in the Croatian Constitutional Court’s case-law. On the basis of this assessment, the article identifies the differences in the use of remote/online hearings between and within jurisdictions. In conclusion, the article points to some critical considerations that should be taken into account when devising the manner in which any Covid pandemic experience with the administration of justice (notably with regard to remote/online hearings) can be taken forward.

Keilitz, Ingo et al, ‘Racial Inequality and Systemic Injustice, the Coronavirus Pandemic, and the Courts’ (SSRN Scholarly Paper ID 3695661, 10 August 2020)
Jurisdiction: USA
Abstract: The twin crises of systemic injustice and the vulnerabilities of the COVID-19 pandemic in 2020 have caused unprecedented social and economic upheaval – including economic contraction and sometimes violent street protests. Combined and entwined in a shameful way, systemic injustices and the relentless pandemic constitute existential threats to society disproportionately affecting marginalized and disadvantaged people. Confronting these threats is not just about the reform and revamping of one or two unjust institutions or units of government – the police and the health care system. It is instead an overdue reckoning on white supremacy, pervasive racial and ethnic injustices, and a deadly lack of preparedness for crises that were long anticipated. It is a challenge of transformative change that calls for a holistic response, a whole-of-society approach (WOSA) that must include the courts and the entire justice system, including the police, prosecution, defense, pretrial services, jail, prison, probation, and parole.This article is a call to action for the judicial branch of governments, including judges, court administrators, and their justice systems partners, not only to continue to provide critical justice services but also to advocate and to execute a whole-of-society approach (WOSA). This approach is essential to begin to root out racial biases and to combat the threats to our safety, security, and health during the Covid-19 pandemic. The authors present three reasons for court leaders and court administrators to get off the sidelines, to make their voices heard, and to become proactive participants in the fight against the existential threats of the admixture of systemic injustice and inequality, combined with our vulnerability to COVID-19: (1) the crises of disease, injustice, protests, and violence demand a WOSA that must include the courts and the justice system; (2) the courts’ silence and reluctance to join fight cannot be defended; and (3) judges, court administrators, and their justice system partners must close the gap between the de jure and de facto law, i.e., the law on the books and the law in practice.

Kettiger, Daniel and Andreas Lienhard, ‘Swiss Courts Facing the Challenges of COVID-19’ (2021) 12(2) International Journal for Court Administration Article 5
Abstract: The COVID-19 pandemic took courts in Switzerland by surprise, just as it did most courts and other public institutions in Europe. This contribution summarises the situation as it has affected courts in Switzerland during the COVID-19 pandemic and tries to draw some initial conclusions. In Switzerland, there was a failure to include the justice system in the emergency/pandemic plans and in the organisation of the response to the crisis. In addition, the situation revealed that Switzerland is lagging behind other states on court technology, which led to difficulties in conducting court proceedings during the coronavirus crisis.

Khasanah, Dian Ratu Ayu Uswatun and Madiha Dzakiyyah Chairunnisa, ‘Litigation Transformation in Law Enforcement Effort in Indonesia During the Covid-19 Pandemic’ (2021) 1(1) HUMAYA: Jurnal Hukum, Humaniora, Masyarakat, dan Budaya 16–21
Abstract: The Covid 19 pandemic has accelerated digitization in all aspects of life. As an effort to deal with its spread, the legal realm has also undergone a transformation. The implementation of remote litigations during the Covid-19 pandemic has begun to take effect in line with the government’s appeal for Physical/ Social distance. The litigations used the support of the internet network or known as e-litigation. It is nothing new in the world because previously developed countries, such as the United States, have used this method beforehand. The implementation of e-litigation in Indonesia is certainly different from other developed countries that are technologically ready. The implementation of e-litigation is a development of the previously implemented e-court program. This study examined the ins and outs of virtual litigations during the pandemic with all the regulations that assist them. The research used normative and empirical juridical methods that provide explanations so that it can be used as an evaluation of implementation during the pandemic period and towards the new normal era. The secondary data were taken from the primary materials from the regulations that apply during the pandemic and the new normal era. In addition, the secondary materials used were also from journals, books, and other literacy sources. The results of this paper can be used as a reference for further research on the transformation of law enforcement that puts forward the modernization of technology and information in fulfilling justice and social welfare.

Krans, Bart and Anna Nylund (eds), Civil Courts Coping with COVID-19 (Eleven, 2021) *OPEN ACCESS BOOK*
Summary: The unforeseen Covid-19 pandemic has propelled, and continues to propel, unprecedented transformations to civil proceedings and the landscape in which they operate. Courts have proven to be creative and innovative in their responses to the pandemic, and in their ability to implement digitisation of paperwork and remote hearings. This book contains a comparative study of how courts in 23 countries have coped with the pandemic, addressing selected innovations and adaptations to court proceedings, factors facilitating and impeding the digital leap, and new concerns that new technology and the pandemic engenders. The authors discuss the implications of digitisation, such as ensuring equal access to courts, novel issues concerning fair trial rights in remote proceedings, the role of alternative dispute resolution during the pandemic, and the roots of resistance to digitisation.
  • Civil Courts Coping with Covid-19 – Exceptional Times, Normal Times, New Times?
  • Responding to Covid-19 – Australian Civil Courts in 2020
  • The Impact of Covid-19 on Civil Procedure in Belgium
  • Brazilian Precedents in Covid-19 – Supreme Court Matters?
  • The 'New Normal' of Civil Procedure in Canada – Technological Efficiency over Proportionality and Accuracy of Outcomes
  • Civil Justice in China in the Covid-19 Period
  • Croatian Civil Justice v. Covid-19 – The Empire Strikes Back
  • Digitalization of Danish Civil Justice – Perspectives from the Pandemic
  • Developing the New Normal for English Civil Procedure Post Covid-19
  • Pandemic and Digitalization – The Situation in the Finnish Lower Courts
  • Covid-19 and French Civil Justice – What Future for Civil Hearings?
  • Covid-19, Civil Justice 2020 and German Courts 2021?
  • Covid-19 and Civil Justice – News from the Italian Front
  • Impact of Covid-19 on Japanese Civil Justice
  • Impact of Covid-19 Pandemic on Lithuanian Civil Justice
  • The Aftermath of the Covid-19 Pandemic in the Netherlands – Seizing the Digital Gains
  • Covid-19 and Norwegian Civil Justice
  • Peruvian Judicial System during the Covid-19 Pandemic
  • Transformation of Polish Civil Procedure in Light of Covid-19
  • Singapore Civil Procedure and Covid-19
  • Coping with an Outdated and Rigid Civil Procedure in the Era of Covid-19 – The Experience of Slovenia
  • Civil Justice after the Covid-19 Pandemic in Taiwan
  • The Impact of the Covid-19 Pandemic on the Civil Procedure in Uruguay
  • Covid-19 and American Civil Litigation
  • Conclusions on Civil Courts Coping with Covid-19
Lachmayer, Konrad, ‘Judging, Fast and Slow: Constitutional Adjudication in Times of COVID-19’ in Saša Zagorc and Samo Bardutzky (eds), Constitution at the Brink of a State of Emergency: Celebrating Thirty Years of the Constitution of Republic of Slovenia (1991-2021) (University of Ljubljana, Faculty of Law, forthcoming 2022)
Abstract: During an emergency, time is of the essence. While the executive branch may make quick decisions, courts in general, and supreme and constitutional courts in particular, seem to act relatively slowly. Nevertheless, the function of constitutional review becomes even more important when emergency measures introduced by the executive infringe fundamental rights, violate the rule of law or undermine democracy. The following paper analyses the potential, possibilities and perspectives of fast-track constitutional adjudication and contrasts it with slower forms of judicial review. Recent developments during the COVID-19 crisis serve as an example.

Lanier, W Mark, ‘Voir Dire In A Post-Coronavirus MDL World’ (2021) 89(4) UMKC Law Review 915-921
Jurisdiction: USA
Abstract: The article focuses on voir dire in a post-coronavirus Multidistrict Litigation (MDL). It mentions that state courts generally leaning more heavily on lawyer voir dire, while most federal judges conduct the preponderance of the voir dire. It also mentions that both state and federal courts are much more attuned to the advantages of using questionnaires before jury selection.

Larkin, Jr, Paul J, ‘Suing China Over COVID-19’ (2020) 100 Boston University Law Review Online 91-116
Abstract: On April 21, 2020, the state of Missouri filed a lawsuit in federal court against the People’s Republic of China and various other parties. The lawsuit seeks damages from the defendants for their role in unleashing the COVID-19 pandemic, an action that, as the state has alleged, roiled the world for the last two months, put millions of people out of work, and killed thousands in the process. According to the complaint, Chinese authorities pursued ‘[a]n appalling campaign of deceit, concealment, misfeasance, and inaction’ causing our current ‘unnecessary and preventable’ global pandemic. The threshold issue is whether Missouri can sue under the Foreign Sovereign Immunities Act of 1976 (FSIA). Missouri’s lawsuit does not look promising under current law. Missouri claims that China has engaged in ‘commercial activities’ that allow this suit to go forward, but Missouri’s alleged injuries are not ‘based upon’ those activities, as the FSIA requires. Missouri also alleged that it can sue China in tort for their response to the virus, but the FSIA does not allow foreign governments to be sued for their ‘discretionary functions,’ even when they abuse that discretion. Missouri alleges that the Chinese Communist Party is the ultimate authority in China, but does not allege that it lacks discretion over choosing its response to COVID-19. Missouri therefore has an uphill climb to avoid dismissal.

Larson, David Allen, ‘Designing a State Court Small Claims ODR System: Hitting a Moving Target in New York During a Pandemic’ (2021) 22(3) Cardozo Journal of Conflict Resolution 569–580
Abstract: When I began helping the New York State Unified Court System design a pilot online dispute resolution (‘ODR’) system back in October 2016, I never imagined more than four years would pass before a system was implemented. One reason our journey was so long is because our target kept moving. After completing a detailed credit card debt collection ODR platform, we had to change direction before implementation and focus instead on small claims cases. Then like the rest of the world, we suddenly had to deal with the COVID-19 pandemic. Although it took longer than anticipated, we achieved our goal and the New York State Civil Court Small Claims ODR platform went live on January 29, 2021. We learned a great deal along the way, and I hope it will be useful to share some of what we did and what we learned. This short Article will not describe every detail of the small claims ODR system. It will instead focus on distinct stages of our ODR system design that required close attention.

Legg, Michael and Anthony Song, ‘The Courts, the Remote Hearing and the Pandemic: From Action to Reflection’ (2021) 44(1) University of New South Wales Law Journal 126–166
Abstract: With the onset of the COVID-19 pandemic, courts around the world rapidly shifted to remote hearings. Balancing public health directives with the need to continue upholding the rule of law, what followed was the largest, unforeseen mass-pilot of remote hearings across the world. For courts this was necessarily a time of action, not reflection. However, after having maintained court operations, it is now necessary to reflect on the experience of remote courts and their users during an otherwise unprecedented situation. Unlike previous iterations of remote hearings, the COVID-19 experience was fully remote – whereby all participants took part in the hearing remotely. The difficulty is until now, almost no prior empirical data has existed on this type of fully remote hearing with the majority of previous research focused on the use of audiovisual links (‘AVLs’) to facilitate partially remote appearances within courtrooms. To bridge the research and data gap on fully remote hearings, this article draws on the previous body of literature to both examine the COVID-19 experience, and to assist in guiding future research and use of remote hearings.

Legg, Michael, ‘The COVID-19 Pandemic, the Courts and Online Hearings: Maintaining Open Justice, Procedural Fairness and Impartiality’ (2021) 49 (2) Federal Law Review 161-184
link to pre-published version of this paper on SSRN
Abstract: The COVID-19 pandemic and the ensuing mandated health protections saw courts turn to communications technology as a means to be able to continue to function. However, courts are unique institutions that exercise judicial power in accordance with the rule of law. Even in a pandemic courts need to function in a manner consistent with their institutional role and its essential characteristics. This article uses the unique circumstances brought about by the pandemic to consider how courts can embrace technology but maintain the core or essential requirements of a court. This article identifies three essential features of courts - open justice, procedural fairness and impartiality – and examines how this recent adoption of technology has maintained or challenged those essential features. This examination allows for both an assessment of how the courts operated during the pandemic, but also provides guidance for making design decisions about a technology-enabled future court.

Legg, Michael, ‘COVID-19 and Online Courts’ (2020) 9(1) Journal of Civil Litigation and Practice 3-4
Abstract: The coronavirus, which gives rise to the respiratory illness coronavirus disease (COVID-19), emerged in China in December 2019 and then spread to many other countries. Courts around the world moved to online or remote hearings. This significant change gives rise to a multitude of questions, both about how courts performed during the pandemic but also about what lessons the experience may hold for the future. To this end a number of studies have been undertaken or are underway.

Legg, Michael and Anthony Song, ‘Commercial Litigation and COVID-19: The Role and Limits of Technology’ (2020) 48(2) Australian Business Law Review 159-168
Jurisdiction: Australia
Abstract: The COVID-19 pandemic has changed the way society functions. As social distancing measures were enforced across the world, courtrooms and registries, among other public services, were forced to shut their doors to the public to ensure the safety of staff, practitioners and the wider community. However, Australian courts have been able to use technology to deliver the essential service of justice to society remotely, including fully shifting to electronic filing systems and conducting entire hearings online through various audio-visual link platforms. This article examines the experiences of Australian commercial courts using readily available technologies to respond to the crisis. This in turn raises essential questions, such as how can open justice and procedural fairness be maintained when courtrooms close and trials move online? How do we ensure public trust and confidence in the court system and guarantee the essential human element of judicial institutions is not degraded? And how do we address delay and ensure technology is accessible to all? The answers to these questions will be essential to the future of commercial litigation.

Lindsey, Jaime, ‘Open Justice, Participation and Materiality: Virtual Hearings and the Court of Protection’ in Ferstman, Carla and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 257-264 (published 30 June 2020)
Jurisdiction: UK
Abstract: There has been much discussion about the use of technology in the justice system as a result of measures introduced by the UK government to respond to the Covid-19 pandemic. In this paper I articulate my own thoughts on the use of virtual hearings in light of the pandemic, specifically focusing on their use in contexts concerning potentially vulnerable participants, such as in the Court of Protection. In doing so, I highlight a number of challenges, opportunities and reflections on how we might respond to their use. I argue that in coming to analyse the use of virtual hearings, we should focus on the extent to which open justice is secured, the material differences between the virtual and physical court hearings and the participation of those affected by proceedings. :

Lurie, Guy, ‘Ministerial Emergency Powers Over Court Administration in the Israeli Judiciary’ (2021) 12(2) International Journal for Court Administration Article 8
Abstract: This article focuses on the administration of courts in Israel during the Coronavirus Pandemic, and particularly on the emergency powers utilized by the Minister of Justice. The article points out that more attention must be granted to the confluence of two issues: emergency powers and court administration. While the literature on emergency powers has discussed at length the challenges inherent in maintaining the rule of law under extreme conditions, the literature on court administration has not shown as clear an awareness of the issue, even though it has extensively discussed the tensions intrinsic to executive control over court administration. This article points out, drawing on both of these theoretical discourses, that we must carefully structure emergency powers over the administration of courts taking care to maintain the realization of the principles of judicial independence and judicial accountability, which in emergencies necessitates a clear separation of the power to declare a state of emergency from the power to curtail court operations due to the emergency. Furthermore, we must also maintain transparency in the realization of these principles, which is almost as important as their actual realization in order to maintain public confidence in the courts.

Lynch, Nessa and Ursula Kilkelly, ‘“Zooming In” on Children’s Rights During a Pandemic: Technology, Child Justice and Covid-19’ (2021) 29(2) International Journal of Children’s Rights 286–304
Abstract: The implementation of public health measures in response to the COVID-19 pandemic has impacted heavily on the operation of child justice systems and places of detention, creating new challenges in the safeguarding and implementation of children’s rights. Yet, it has also been a time of innovation, particularly in the use of technology. Using case studies from Ireland and Aotearoa New Zealand, we discuss how technology has been used to maintain the balance between restrictive yet necessary public health measures and the operation of the child justice system. Examples include remote participation in remand hearings and trial and the use of ‘virtual visits’ for children in detention.

Mahomed, Imraan, Faan Coetzee and Yusuf Omar, ‘Infected by COVID-19: The Antidote for Labour Litigation with a Whistle-Stop around the World’ (2021) 21(2) Without Prejudice 48–51
Jurisdiction: South Africa
Abstract: The Constitutional Court has decried the snail’s pace which besets the finalisation of some employment related disputes on a number of occasions. In many instances, this is the result of institutionalised delays through the courts and must be seen through the prism of the requirement that employment related litigation must be expeditiously resolved.

Majumder, Sneha, ‘Indian Courts and Their Collective Response to Covid -19 Second Wave’ (2021) 24 Supremo Amicus Journal (unpaginated)
Abstract: Our country has witnessed its deepest dark hours when the second wave Covid-19 rammed up as over 86,000 death reported from the first week of April. Thousands of patients are dying in the hospital beds without getting oxygen, hospitals are running out of oxygen, shortage of medicines when everything is turning out into messy, our Judiciary system has stepped in to address the government’s handling of the crisis. Multiple high courts have been demanding answers from the state and central governments on oxygen supply and transport, availability of medicines, observation of Covid-19 norms during elections, medicine shortage, and RTPCR test numbers and issuing some enforceable orders. The Supreme Court has registered a suo motu case concerning issues arising out of COVID-19 pandemic and the management of the crisis unfolding in various states with clear intention that during national crisis Supreme Court cannot be a mute spectator.

Marang’a, Moses, Paul Kimalu and Margaret Ochieng, ‘Effect of COVID-19 Pandemic on Resolution of Cases in Courts: The Kenyan Judiciary’ (SSRN Scholarly Paper ID 3851886, 30 March 2021)
Abstract: The Constitution of Kenya and the Judiciary Strategic Plan (2019-2023) identifies improved access to, and expeditious delivery of justice as key result areas for the Judiciary, a public institution that is the custodian of justice and pivotal for socio-economic wellbeing of the society. With the onset of the COVID-19 pandemic in Kenya, diverse interventions were instituted both at the Judiciary headquarters and at court level. The aim of the interventions was twofold. First was to control the spread of the disease through courts and second was to ensure continuity in service delivery. Despite the constitutional dictate, institutional aspiration, and interventions that were undertaken, the resolution of cases in courts, one of the indicator of access to justice, reduced during the pandemic period. Specifically, the number of cases that were resolved in all courts reduced from 469,359 in the financial year 2018/19 to 289,728 cases in 2019/20 when COVID-19 disease was first reported in Kenya. Could this reduction be attributed to the pandemic or to some other underlying factors, and by what magnitude if at all?. Were the instituted measures able to impact on resolution of cases?. To answer these questions, the study first sought to establish the measures that were undertaken by Judiciary. This entailed a review of interventions that were undertaken at Judiciary headquarters through the use of circulars, notices and guidelines that were issued from time to time, as well as collection and analysis of primary data from Heads of Stations and Deputy Registrars of courts on measures that were carried out at court level. Secondly, the study sought to determine the effect of COVID-19 pandemic and the consequent measures on resolution of cases in courts. This was realized through the use of two-step system Generalized Method of Moment’s regression that employed secondary panel data. The findings were that the courts had undertaken numerous measures to control the spread of the pandemic to ensure continuity of service delivery amidst the pandemic. Further, COVID-19 pandemic had adversely affected resolution of cases in courts despite the numerous measures that were instituted. Drawing from these findings, diverse policy actions and recommendations have been proposed with an aim of enhancing resolution of cases in courts during the pandemic period and beyond.

Mariner, Wendy K, ‘Shifting Standards of Judicial Review During the Coronavirus Pandemic in the United States’ (2021) 22(6) German Law Journal 1039–1059
Abstract: Emergencies are exceptions to the rule. Laws that respond to emergencies can create exceptions to rules that protect human rights. In long lasting emergencies, these exceptions can become the rule, diluting human rights and eroding the rule of law. In the United States, the COVID-19 pandemic prompted states to change rules governing commercial and personal activities to prevent the spread of the coronavirus. Many governors’ executive orders were challenged as violations of the constitutionally protected rights of those affected. Judges are deciding whether emergencies can justify more restrictions than would be permitted in normal circumstances and whether some rights deserve more protection than others, even in an emergency. This article analyzes ongoing litigation involving emergency restrictions on religious freedom and access to reproductive health services. These cases suggest that some judges are altering the standards of judicial review of the state’s emergency powers in ways that could permanently strengthen some rights and dilute others in normal circumstances.

Marsh, Luke, ‘The Wrong Vaccine: Custody Time Limits and Loss of Liberty during Covid-19’ (2021) 41(4) Legal Studies 693–709
Jurisdiction: England & Wales
Abstract: In a context where the criminal courts have been drastically affected by coronavirus, this paper seeks to demonstrate that the presumption of innocence risks becoming a further casualty of Covid-19. It will argue that prolonged pre-trial detention of unconvicted defendants has been sanctioned by the senior judiciary under the Custody Time Limit (CTL) Regulations. Following a series of important CTL decisions, a universal position of the senior judiciary, one supportive of government, is emerging: despite the case backlog resulting in defendants facing trial delays of unknown length, the exceptional circumstances of the pandemic which the executive faces, amounts to ‘good cause’ to extend CTLs. It will be argued that the correct approach for courts to follow is that that they must hear evidence that justifies why no court rooms are available before using that to mandate extensions. It will be further contended that these far-reaching decisions came from the senior judiciary’s perceived need to mop up the problem posed by widespread refusals to extend CTLs, raising questions as to their ability to act independently of political pressure.

Matyas, David, Peter Wills and Barry Dewitt, ‘Imagining Resilient Courts: From COVID to the Future of Canada’s Judicial System’ (SSRN Scholarly Paper ID 3778869, 3 February 2021)
Abstract: The novel coronavirus disease (COVID) pandemic has challenged an array of democratic institutions in complex, unexpected and unprecedented ways. Little academic work, however, has considered the pandemic’s impact on Canada’s judicial institutions. This paper aims to fill that gap by exploring the Canadian judicial system’s response to COVID and the prospects for administering justice amidst disasters, all through the lens of resilience. After taking a forensic look at how the judicial system has managed the challenges brought on by COVID, we argue that features of resilience like self-organization, preparedness and planning, learning, and reflexive decision-making can significantly contribute to the administration of justice during future shocks. Further, we argue that methodologies from policy analysis, such as benefit-cost analysis (BCA), are useful tools for improving the court’s reflexive decision-making to stresses and shocks. We propose that the business of judging during shocks can become more integral to the ‘business as usual’ of judicial systems. Imagining such a resilient court can be a way to step from COVID to the future of Canada’s judicial system.

McCann , Adam, ‘Virtual Criminal Justice and Good Governance during Covid-19’ (2020) 7(3) European Journal of Comparative Law and Governance 225-229
Introduction: Covid-19 demands that we embrace the ‘positivistic approach of good governance’.1 This claim presupposes three things. First, that we see ‘good governance’ as part of the legal system – this means identifying the principles of good governance, their development as legal norms, and ensuring the necessary enforcement of those norms.2 Second, that good governance is nothing but empty rhetoric if we do not take that last point seriously – the relevant principles must be enforceable as rights.3 Third, that Covid-19 has thrown our legal systems into very risky and unprecedented territory. Individual rights are, perhaps justifiably so, at immense risk. This is clearly evident in the domain of criminal justice. Of particular interest here is the mass roll-out of ‘virtual attendance’ at criminal hearings via video links (VLs). Why is this of particular interest? Unlike other emergency measures (such as the suspension of jury trials or the introduction of radical public order/health offences), there is evidence to suggest the widespread use of VLs had political momentum pre-Covid 19.

McGrath, Sinead, ‘Pandemic Protocol Must Maintain Public Trust’ (2020) 117(31) Law Society’s Gazette 18
Jurisdiction: UK
Abstract: Reports on the exemption to COVID-19 quarantine restrictions which means barristers, solicitors and court users can break quarantine to attend tribunals or hearings and raises concerns that this practice will put other court users at risk.

McHattan, Natasha, ‘“Obstacles, Not Roadblocks”’ (2020) 32(2) Australian Restructuring Insolvency & Turnaround Association Journal 13-15
Abstract: The Australian court system, like other institutions, businesses, and organisations, has had to rapidly adapt to the challenges posed by the COVID-19 pandemic and the related social distancing measures which were imposed in Australia from March 2020.

McIntyre, Joe, Anna Olijnyk and Kieran Pender, ‘Civil Courts and COVID-19: Challenges and Opportunities in Australia’ 45(3) Alternative Law Journal 195-201
(Unpublished version available as University of Adelaide Law Research Paper No 2020-143, 2020 – on SSRN)
Abstract: This article provides an overview of the response of Australian courts to the COVID-19 crisis, and critically examines a number of structures and systemic issues that arise from the shift to the online deliver of justice. It places the current responses in the context of the emerging literature regarding online dispute resolution, and draws upon that literature to consider issues including open justice, symbolism and ‘court architecture’ in the digital space, technological limitations, access to justice and issues of systemic bias. It argues that by examining these issues, the present crisis will help map opportunities for future reform.

Metzger, Pamela and Gregory J Guggenmos, ‘COVID-19 and the Ruralization of U.S. Criminal Court Systems’ (2020) 70 University of Chicago Law Review Online (forthcoming)
Abstract: The COVID-19 pandemic is imposing typically rural practice constraints on the United States’ urban and suburban criminal court systems. This ‘ruralization’ of criminal practice offers lawyers, policymakers, and researchers a window into the challenges and opportunities that inhere in rural systems. This is no small matter. For decades, lawmakers, researchers, reformers, and philanthropists have overlooked, undertheorized, and underfunded rural criminal legal systems-and have done so at great peril. Nearly 20 percent of the nation’s population lives in nonmetropolitan areas, where the opioid addiction crisis rages. Rural incarceration increasingly drives mass incarceration. The U.S. countryside warehouses the nation’s prison populations, and rural pretrial detention rates continue to rise. Indeed, the success of criminal justice reforms depends in part on our ability to address the incarceration crisis in rural America. The authors discuss the impact of the COVID-19 pandemic on rural criminal courts highlighting their research at the Deason Criminal Justice Reform Center on small, tribal, and rural (STAR) criminal legal systems.

Mihailovich, Pooja, ‘Post Pandemic: The New Normal for Tax Litigation’ [2020] (June) Toronto Law Journal 1-2
Jurisdiction: Canada
Abstract: With the closure of the Tax Court of Canada due to the COVID-19 pandemic, the progress of most proceedings slowed, while others were brought to a halt. Although other Canadian courts had similarly restricted operations during this time, some resorted to the use of technology to address outstanding matters, including through video and teleconferencing. The Tax Court did not take such measures. The Tax Court was not viewed as providing essential services and did not have the technological capability to operate remotely. As a result, it was closed for business in all respects.
On June 25, 2020, Chief Justice Rossiter and Associate Chief Justice Lamarre provided an update on the reopening of the Court and outlined new procedures that the Court intends to implement to address the backlog created by the pandemic.

De Mino, Wolfgang P Hirczy, ‘Devine Dissents on COVID-19 Shutdowns in Texas’ (SSRN Scholarly Paper ID 3664781, 3 August 2020)
Abstract: On July 17, 2020 the Texas Supreme Court dismissed a challenge to Governor Greg Abbott’s executive orders issued pursuant to the TEXAS DISASTER ACT in efforts to contain the spread of COVID-19.In re Hotze, No. 20-0430 (Tex. Jul. 17, 2020) (orig. proceeding). This legal action challenging the use of emergency powers during the pandemic—one of several--was brought by Steven Hotze, MD, a conservative political activist, joined by an assortment of affiliated co-petitioners. All were represented by the same Texas attorney, Jared Woodfill, himself a prominent Republican. The fact that the Texas Supreme Court dismissed the case was no surprise because it was initiated directly in the court of last resort, with no constitutional or statutory authorization for it. The statute that provides for mandamus relief expressly excludes the Governor as a target. What is more noteworthy, however, is the issuance of a dissenting opinion in the guise of a concurrence sympathetic to Hotze’s challenge to Governor Greg Abbott’s handling of the pandemic.

Mokhtar, Mohd Na’im, ‘Reformation of Syariah Judiciary Institution During COVID-19 Pandemic’ (2020) 3(1): International Seminar on Syariah and Law (INSLA) E-Proceedings - Special Issue: Syariah and Law in Facing COVID-19: The Way Forward 18-22
Abstract: In Malaysia, the pandemic of coronavirus COVID-19 has impacted almost all areas of our life. The administration of the Syariah courts is no exception. The effects of the pandemic have been felt until now. Following the movement control order (MCO) on March 18, all operations at Syariah courts nationwide have been halted. However, it did not stop the administration of JKSM and the Syariah courts which have continuously discussed, using the online platforms, to formulate reforms if the MCO was finally over. If justice delayed is justice denied, the COVID-19 would seem to be a disaster for our judicial system. But eight months into the crisis, there are signs that what is slowing courts overall is actually accelerating reforms in procedures. This is undoubtedly the hikmah or the positive side of COVID-19. When the pandemic finally ends, we hope that some of the changes that have been introduced will continue to be endured by the Syariah judicial system, and the efforts for reforms will continue. This speech explains the impact of covid-19 pandemic on Syariah judiciary, particularly on its operation and how has the institution, i.e. the Syariah courts dealt with it and the reforms that are taken in making sure the continuity of its service during the pandemic.

Nazneen, Fathima, ‘Cloud Computing & the Legal Arena: Digitization of Courts during Covid-19’ (2021) 3(3) International Journal of Legal Science and Innovation 412–429
Abstract: There are numerous impressions of the Coronavirus pandemic on law and its enterprises and activities, including the closure of law practices and courts, the decline in services, the lack of clienteles, the withdrawal of client schedules and settlements, the decline in the accessible workforce owing to the virus or social distancing, and the struggle of holding unambiguous appointments and services. Therefore, the law as an arena has holistically changed in order to integrate technology in order to cope with the everchanging digital world. This paper highlights the use of cloud computing as part of digitization of the legal profession while emphasizing the advantages as well as its risks. It will also discuss CaseLines, a cloud-computing software that is increasingly becoming popular to conduct Court online. Various jurisdictions such as DIFC, South Africa, Canada, England and Wales, etc. has employed the use of Cloud-based evidence management systems to ensure the delivery and processes of justice, which is one such use of Cloud Computing.

Outerbridge, David, Sylvie Rodrigue and David WR Wawro, ‘Litigation Risk in COVID-19 Environment: Big Changes’ (11 June 2020) 2 Emerging Areas of Practice Series: COVID-19 (Coronavirus), Westlaw Canada
Jurisdiction: Canada
Introduction: Litigation risks are materially different today, under COVID-19, than at the start of 2020 when the threat of a world-changing global pandemic was barely an idea. The economic and strategic considerations affecting organizations' litigation decisions are shifting. This article examines that shift and explores the consequences for litigants going forward as they seek to resolve disputes in the pandemic environment--both existing legal disputes and new litigation arising from COVID-19.

Paciocco, Palma, ‘Trial Delay Caused by Discrete Systemwide Events: The Post-Jordan Era Meets the Age of COVID-19’ (2021) 57(3) Osgoode Hall Law Journal 835–867
Abstract: Court closures necessitated by COVID-19 have resulted in extensive trial delay, with implications for the section 11(b) Charter right to be tried within a reasonable time. Although COVID-19 appears to be a straightforward example of an ‘exceptional circumstance’ under the Jordan framework that governs section 11(b), careful analysis reveals that it falls within a category not contemplated by that framework—what this article calls ‘discrete systemwide events.’ Because COVID delay impacts cases across the system, the reasonable steps that can be taken to reduce it are themselves largely systemic in nature. Crucially, the exceptional circumstances analysis stipulated by Jordan focuses exclusively on the steps available in an individual case, while systemic delay is addressed indirectly through presumptive ceilings. Because the presumptive ceilings were not calibrated with COVID-19 in mind, they cannot account for COVID delay. Nor can systemic responses to COVID delay be assessed as part of the general exceptional circumstances analysis: Such an approach would require judges to adjudicate the reasonableness of myriad institutional policies, giving rise to problems ranging from a lack of data to separation of powers issues. This conundrum points towards one of two extremes: discount COVID delay without a full Jordan analysis, thereby partially relieving the Crown of its burden to justify presumptively unreasonable delay and leaving accused persons to bear the cost; or effectively prevent Crowns from justifying COVID delay as an exceptional circumstance, thereby risking thousands of stayed criminal charges flowing from the pandemic. This article suggests an alternative approach that navigates between these extremes: In some instances, delay caused by a discrete systemwide event like COVID-19 should be remedied by a sentencing reduction, authorized either by the Charter or by the sentencing process set out in the Criminal Code. This solution, while imperfect, achieves a more palatable result while adding minimal complexity to the section 11(b) analysis. If adopted, it could save accused persons from disproportionately bearing the costs of COVID delay, which would be the likely outcome were the Jordan framework applied straightforwardly.

Pardede, Marulak et al, ‘The Settlement of Consumer Disputes by Virtual Mediation Particularly on Banking and Buying Services Online’ (Proceedings of the 1st International Conference on Law and Human Rights 2020 (ICLHR 2020), 2021) 294–307
Jurisdiction: Indonesia
Abstract: The increasingly massive spread of the Coronavirus Dissease 2019 (COVID-19) virus in Indonesia has led the government to adopt a large-scale social restrictions (PSBB) policy in a sustainable manner. This policy limits human mobilization as an effort to break the chain of spreading Covid-19. Community movement was limited by being asked to stay at home. For offices, both private and government, apply working from home for some employees. Limit movements due to concerns over the Covid 19 virus have made most people shop for home needs online. According to Analytic Data Advertising (ADA), online shopping activities have increased by 400% since March 2020 due to this pandemic. Bank Indonesia (BI) noted, purchase transactions via e-commerce in March 2020 reached 98.3 million transactions. That figure is an increase of 18.1% compared to February. Not only that, the total value of e commerce transactions also increased by 9.9% to IDR 20.7 trillion from February 2020. In today’s digital era, people easily make virtual transactions in shopping, for example cash on delivery (COD), e. -wallets, joint accounts, transfers, and credit cards. The ease of virtual transactions is very helpful for people to get their daily needs by shopping online without leaving the house. They only make payments by wire transfer or credit card via bank or marketplace applications. However, the convenience of shopping online has been abused by many traders by committing fraud such as ordering goods that do not match the image or what has been promised. Even the form of fraud that often occurs is what is called phishing, which is tricking the target with the intention of stealing the target’s account, such as website forgery and online registration. Then account abuse through One Time Password (OTP) is carried out by hijacking consumer accounts so that the criminals use them to shop. The question is, can virtual mediation be done in resolving legal issues between consumers and banks and online sellers? The purpose of this paper is to provide an idea of the use of virtual mediation in resolving consumer protection disputes in the era of the Covid 19 pandemic.

Parodi, Giampaolo, Concetta Locurto, and Roberta Bardelle, ‘Urgent Measures to Contrast the COVID-19 Epidemic in Relation to Civil and Criminal Justice’ in Ewoud Hondius et al (eds), Coronavirus and the Law in Europe (Intersentia, September 2020)
Abstract: The following sections deal with the issues arising from the impact of the legislative measures adopted in Italy during the outbreak of the COVID-19 epidemic in the field of criminal and civil justice. They also contain, in summary, a reference to the constitutional framework on the basis of which the emergency legislation has been enacted. The analysis focuses on the measures adopted both in criminal and civil justice in relation to a first emergency phase, characterized by general postponements of hearings and suspension of procedural time limits, and to a second phase, where the Italian Legislator has foreseen that only specific measures may be adopted locally by the Presidents of the courts, aimed at avoiding gatherings in the courtrooms and close contacts between people.

Phelan, Sara, ‘In the Interests of Justice’ (2020) 25(3) Bar Review 83
Jurisdiction: Ireland
Abstract: Discusses how the Irish court system has adapted to the coronavirus restrictions to maintain access to justice via a mix of remote and physical hearings. Stresses that remote hearings are not suitable for all matters and that a balance between fairness and expediency must be reached.

Phillips, Burton and Ahmed Rajan, ‘Tribunal Hearings in Unprecedented Times’ (2020) 20(4) Without Prejudice 51-52
Jurisdiction: South Africa
Abstract: As a consequence of the COVID-19 pandemic and the resulting national lockdown, the use of technology by legal practitioners, courts, tribunals and other adjudicators has become more important than ever before. The lockdown has prevented adjudicators such as the Competition Tribunal, from conducting proceedings in a “business as usual” manner by restricting its ability to conduct physical hearings. The South African competition authorities responded swiftly to the crisis, and have adapted to new means of ensuring the continuity of competition litigation. This has been achieved through the use of virtual working platforms such as Microsoft Teams and Zoom. Could this crisis usher in a new way of conducting proceedings before the Tribunal, particularly in uncontested matters or matters having limited issues in dispute?

Pinto, Amanda, ‘Modern Justice, Questionable Outfits’ [2020] (September) Counsel 5
Jurisdiction: UK
Abstract: Reflects on the state of the justice system on the event of the Opening of the Legal Year. Discusses: judicial independence; the functioning of the justice system during the COVID-19 pandemic; and access to justice and free legal advice.

Pollard, Matt, Mathilde Laronche and Viviana Grande, ‘The Courts and Coronavirus’ (Part 1 and Part 2) in Barrie Sander and Jason Rudall (eds), Opinio Juris Symposium on COVID-19 and International Law (March-April 2020)
Introduction: Our contribution (in two parts) will consider the specific context of restrictions on access to or operation of courts. Around the world, in response to COVID-19, courts are adopting different modalities for the hearing of matters and limiting the range of matters than can be brought before them to only the most “urgent”, while postponing all others.
The first post sets out the most relevant provisions on the role of courts in international human rights law, including in situations of emergency. The second look in more detail at specific issues, including the suspension of ‘non-urgent’ cases, changes in the modality of hearings, dealing with the consequences of postponement of cases, and risk-tolerance and the fundamental role of judges.

Popotas, Costas, ‘COVID-19 and the Courts. The Case of the Court of Justice of the European Union (CJEU)’ (2021) 12(2) International Journal for Court Administration Article 4
Abstract: COVID-19 has put forth the value of proactive and good Court administration. The Court of Justice of the European Union (CJEU) ensures the uniform interpretation and application of the European Union law. It is a complex supranational organisation, and its workings involve 24 languages. Shifting from risk management to crisis management is an arduous task in such an environment. Nevertheless, based on previous experiences and alerts, the Court took advantage of the established crisis management plans to counter the Covid-19 pandemic. This article aims to offer insights into how the Court manifested its preparedness, remained resilient and managed the crisis by enhancing its contingency plans, using its teleworking experience, benefiting from a modernised IT infrastructure, and applying its procedural rules intelligently. It will also examine how the Court envisages consolidating the judicial and administrative changes in the future.

Porter, Robert B et al, ‘Children’s Rights in Children’s Hearings: The Impact of COVID-19’ (2021) 29(2) International Journal of Children’s Rights 426–446
Abstract: The Scottish Children’s Hearings System makes life-changing decisions regarding the care and protection of children up to 18 years of age referred due to a need for support – because of offending behaviour or a risk to their physical or emotional safety. In March 2020, due to the COVID-19 crisis, Hearings underwent one of the most significant changes since their inception: proceedings shifted to an online conferencing platform (‘virtual hearings’), and some procedural modifications were introduced. In June 2020, we used an online survey to gather more than 270 responses from professionals, volunteers, young people, and families who had experience of virtual hearings. These responses highlight that while there are reasonable justifications for the use of virtual hearings, including the duty to ensure orders are appropriately reviewed and renewed, concerns related to children and young people’s right to participation, privacy and representation bring into question the extent to which children’s rights are realised in virtual Children’s Hearings.

Pryde, Naomi, ‘A Tale of Two Systems: COVID-19 and the Courts’ (2020) 65(5) Journal of the Law Society of Scotland 20-21
Abstract: Compares the approach taken by Scottish Courts and Tribunals Service to that of HM Courts and Tribunals Service in facing the challenges associated with the COVID-19 shutdown, including on: their initial responses; the use of virtual courts; adapting rules of service; electronic filing of documents; and principles in relation to adjournment and remote hearings.

Pushyami, Busam and P Nishitha Dattan, ‘Judiciary: New Challenges v. Protection of Rights’ (2021) 25 Supremo Amicus Journal (unpaginated)
Abstract: Rights are fundamental to any society. Certain rights like human rights and fundamental rights must be protected even in emergencies. The pandemic has bought many issues to various institutions. Judiciary is also one among them. People comment SC for digitalization of courts, problems in online hearing, worry about migrant workers, and protection of the right of various other people in India, but at the same time forget to recognize that the judiciary is also an institution in which a large number of people works and their lives are also in danger. Despite all these along with doctors, the judiciary is also working as an essential service to protect and uphold the rights of people. When the doctors are working to save the lives of people, the judiciary is working to protect the rights of the same people who are vulnerable especially during pandemic situations. The judiciary has an important role in the protection of fundamental rights and the human rights of the people. It must also ensure the right to health of all the citizens. At the same time, they must also carry out the regular duties of the court and ensure justice is served. To make sure that the judicial process keeps going on even in the times of the pandemic they must adopt new processes like e-filing and e-hearing and try to adapt to the new normal.

Quirk, Hannah, ‘Covid-19 and Jury-Less Trials?’ (2020) 7 Criminal Law Review 569–571
Abstract: When proffering some of his more outr proposals for dealing with Covid-19, US President Donald Trump is wont to ask, ‘what have you got to lose?’. If Sir Richard Henriques’ proposal to suspend jury trials in England and Wales as a means of dealing with the crisis is followed, the answer may be ‘quite a lot’. The Lord Chief Justice has said that ‘any move to judge-only trials would be very undesirable’, but the immediate endorsement the idea received from influential supporters, and the significant logistical difficulties of arranging ‘socially-distanced’ trials, suggests the possibility of a ‘second spike’ in support of suspending jury trials.

Rattan, Jyoti and Vijay Rattan, ‘“The COVID-19 Crisis: the New Challenges Before the Indian Justice and Court Administration System”’ (2021) 12(2) International Journal for Court Administration Article 11
Abstract: In India, the COVID-19 crisis came at a time when the focus was already on accelerating the setting up of E-courts and the digitization of justice and court administration. The journey of e-Governance initiatives in court administration started mainly in the mid-1990s and was further enhanced after enactment of the Information Technology Act 2000 (amended 2008). E-courts were launched as a part of the National e-Governance Plan (NeGP) way back in 2006. However, it appears that the sudden and unexpected advent of COVID-19 crisis has provided a greater fillip in bringing about a rapid transformation in the manner of court administration in the country. As physical appearances by lawyers and litigants were discouraged in courts due to the strict safety protocols of the COVID-19 crisis, greater use of technology, already put in place, came in handy in justice and court administration. This paper aims to broadly cover the situation in India before the COVID-19 crisis, and examine how the court administration reacted to various challenges thrown up by the COVID-19 crisis, particularly, in the period after lockdown. It will outline the major technological initiatives existing in court administration in India before the advent of the COVID-19 crisis, such as court related apps, before discussing how courts at various levels, including Lok Adalats (People’s Courts), the Supreme Court, the High Courts and the District and Subordinate Court, modified the manner of court functioning during COVID, accelerating the move towards e-Judiciary. It will then discuss some of the challenges that have been encountered, including reservations of the Bar, and major hurdles facing the court administration post-COVID 19.

Rattey, Justin D, ‘Gap Filling: Assessing the Constitutionality of Virtual Criminal Trials in Light of Ramos v. Louisiana’ (2020) Penn State Law Review (forthcoming)
Abstract: Court closures in response to the COVID-19 pandemic have led some to consider the possibilities of virtual jury trials, with at least one state court already conducting a virtual trial in a civil case. The Supreme Court’s recent decision in Ramos v. Louisiana, in which the Court held that jury verdicts must be unanimous, sheds light on the constitutionality of virtual trials in criminal cases. But the answer that Ramos suggests—that virtual criminal trials are unconstitutional—is difficult to square with the answer offered by constitutional theory. Though the author of the Court’s opinion in Ramos, Justice Neil Gorsuch, is ostensibly an originalist, originalist theory (reflected in the scholarship of, among others, Professors Larry Solum, Randy Barnett, and Jack Balkin) would seem to allow for virtual trials because that inquiry falls in the Constitution’s ‘construction zone.’ The Constitution says nothing about whether jury trials must be in-person, affording legal actors greater (although not unlimited) latitude to adjust jury practices to take account of current circumstances. This essay compares the Ramos Court’s analysis to that of prominent originalists to preliminarily address whether virtual jury trials are constitutional. Additionally, through that comparison, this essay demonstrates the extent to which originalist theory has yet to succeed in shaping Supreme Court decision-making.

‘Remote Hearings in Employment Tribunals’ (2020) 1129 IDS Employment Law Brief 23-30
Jurisdiction: UK
Abstract: Reviews the impact of the coronavirus pandemic on employment tribunals. Considers Practice Directions and Presidential guidance relevant to remote employment tribunal hearings and offers guidance on case management in remote hearings, electronic bundles, video technology, and equal access for litigants in person and other vulnerable participants.

Richards, Michelle, ‘Going Viral?: Discouraging the Premature Use of Civil Liability Strategies as a Response to COVID-19’ (2021) 19(2) The University of New Hampshire Law Review 491–521
Abstract: In addition to the myriad of issues caused by the COVID-19 pandemic in the United States, the virus has also placed our legal system in a position of creating problems that can contribute to the spread of this pandemic. Despite the fact that the United States has been mired in the COVID-19 pandemic and vaccine strategies have been recently developed to provide protection from this virus, much is still unknown about the etiology of this virus and how to effectively control its spread. As a result, public health agencies at the federal, state, and local levels have only been able to issue guidance protocols and best practices that reflect current knowledge of the virus and how to combat the spread as opposed to public health mandates. Regardless, as individuals return to work and other non-health care businesses, those guidance protocols have taken center stage as the basis for lawsuits filed by these individuals challenging the COVID-19 health and safety practices of those respective institutions. These lawsuits call upon the judicial system to determine whether those evolving best practices and guidance should and can be used as a form of an enforceable ‘standard of care’ and creates a significant opportunity for judges to legislate inconsistent and arbitrary social health policies from the bench. In a corollary fashion to these claims, there has also been an effort to provide protection from liability through the use of waivers and immunities to those who wish to conduct certain activities conducive to the spread of COVID-19. However, the use of waivers, assumption of risk doctrines, and immunities to protect businesses from exposure may ultimately lead to inconsistency in interpretation of those guidance protocols and also creates incentives to disregard those guidance protocols and best practices. In short, the premature use of the legal system through liability claims and immunities to address safety and health concerns by individuals and institutions trying to operate during the pandemic has the potential for contributing to the spread of this disease and caution must be taken to avoid setting a risky precedent in dealing with future public health crises.

Riley-Smith QC, Toby, Adam Heppinstall and Freya Foster, ‘Is Covid-19 Sowing the Seeds for Future Litigation?’ (2020) 88(2) Medico-Legal Journal 90–97
Jurisdiction: UK
Abstract: We consider various types of litigation that may follow the Covid-19 pandemic, including: claims against National Health Service (NHS) Trusts by patients who have contracted the coronavirus (or by their bereaved families), claims by NHS staff against their employer for a failure to provide any or adequate personal protective equipment or testing, commercial claims arising from the procurement of medical supplies, the potential liabilities to those who suffer adverse reactions to any vaccine and the guidance issued by the regulators in relation to subsequent disciplinary action.

Robertson, Christopher T and Michael Shammas, ‘The Jury Trial Reinvented’ (Boston University School of Law, Public Law Research Paper No 21-05, 1 March 2021)
Abstract: The Framers of the Sixth and Seventh Amendments to the United States Constitution recognized that jury trials were essential institutions for maintaining democratic legitimacy and avoiding epistemic crises. As an institution, the jury trial is purpose-built to engage citizens in the process of deliberative, participatory democracy with ground rules. The jury trial provides a carefully constructed setting aimed at sorting truth from falsehood. Despite its value, the jury trial has been under assault for decades. Concededly, jury trials can sometimes be inefficient, unreliable, unpredictable, and impractical. The Covid-19 pandemic rendered most physical jury trials unworkable, but spurred some courts to begin using technology to transcend time and place restrictions. These reforms inspire more profound changes. Rather than abolishing or cabining the jury trial, it should be reinvented with the benefit of modern science and technology. Features to be reconsidered include having local juries even for national civil cases, using unrepresentative groups of only six to twelve jurors, allowing attorneys to arbitrarily exclude jurors during voir dire, having synchronous and chronological presentations of cases over days or weeks, asking jurors to ignore inadmissible evidence and arguments, and facilitating secretive deliberations infected by implicit bias. A reinvented, modernized jury institution can better serve its purposes by increasing citizen engagement; better fostering civic education and democratic deliberation; improving accuracy in sorting truth from falsehood; and enhancing efficiency in terms of both time and cost.

Rossner, Meredith, ‘Remote Rituals in Virtual Courts’ (2021) 48(3) Journal of Law & Society 334–361
Abstract: This article examines the ritual dynamics of virtual court hearings. While audio-visual links for select court participants have been available for decades, in a virtual hearing all parties participate using a videoconferencing platform. Such hearings have proliferated during the COVID-19 pandemic, as courts around the world have rushed to develop remote justice options. Scholars and legal professionals have expressed a range of concerns about this development, not least that there are elements of physical courtroom rituals that cannot be rendered virtually. Drawing on two recent empirical examinations of virtual courts, I explore what these hearings look and feel like for participants. I focus on the relationship between the material and symbolic elements of a court ritual and the meaning and experience of virtual co-presence. In some circumstances, traditional elements of court have been translated for a virtual space. In other ways, the ritual has been transformed. I conclude by discussing the limitations and potential of courts of the future.

Rossner, Meredith, David Tait and Martha McCurdy, ‘Justice Reimagined: Challenges and Opportunities with Implementing Virtual Courts’ (2021) 33(1) Current Issues in Criminal Justice 94–110
Abstract: While video technology has long been a feature of courtrooms, during the pandemic, courts underwent a seismic shift towards virtual hearings. Physical courtrooms shut their doors and hearings were moved to a virtual space. This transformation was fast, radical, and likely to permanently alter the landscape of justice. In this article, we review the strategies courts in Australia and the United Kingdom (UK) adopted in response to the pandemic and discuss the implications for the practice of justice. We provide a close examination of the design, framing, and ritual elements of a virtual hearing that can reveal the challenges that participants face when interacting within a virtual court, and point us towards ways of reimagining a more respectful and inclusive practice.

Rozi, Raja Mohamad and Nisya, ‘Validity and Legal Protection of Defendant in an Online Trial System’ (Proceedings of the First International Conference on Law and Human Rights 2020 (ICLHR 2020), 2021) 182–190
Jurisdiction: Indonesia
Abstract: One of the functions of criminal procedural law is to enforce material law. The point is to reveal the material truth. Since it was enacted, the criminal procedure code has not been separated from the ‘test’ of its application. The various kinds of exercise include: professionalism of law enforcement, challenges to Indonesia’s geographic areas, and the issue of the Covid 19 Pandemic. The Covid 19 outbreak has an impact on the implementation of a criminal proceeding, therefore it creates an obstacle for the meeting of parties in an open and fairly criminal justice system. The Attorney General’s office through the Attorney General instruction No. 5 of 2020 mandates all levels of prosecutors to conduct hearings by teleconference. The online trial also approved by Supreme Court with Supreme Court Circular Letter (SEMA) No. 1 of 2020 concerning Guidelines for implementing tasks during the prevention period of the spread of Covid 19. Based on this, there are conflicting rules. In Articles 11 and 12 of Law Number 48 of 2009 concerning judicial power, the trial is attended by 3 (three) judges assisted by the registrar, the public prosecutor, and the defendant who must be present in the court building room. This obligation is also regulated in several provisions of Articles 154, 159, 196, 227 (2), and 230 (1) and (2) of the Criminal Procedure Court. Based on this, the main problems are: (i) What is the validity of the teleconference/online trial according to legislation? (ii) What is the aspect of legal protection for the accused in the trial process? The research method used is juridical normative by analyzing legal materials against legal concepts and norms in a qualitative and prescriptive manner. The purpose of the research is (i) to find the legal validity of teleconference/online trial, (ii) to find the legal protection of the defendant in the teleconference/online trial process. This research resulted in: (i) Although the validity of the teleconference/online trial is not clear and clean, it is a way out for delay of justice; (ii) The legal protection of the defendant can be provided according to the minimum standards stipulated by the criminal procedure code. Since the Covid 19 Pandemic uncertain, law enforcement must continue and creativity is needed. We suggest that Perpu No. 1/2020 should also contain mechanisms for criminal proceedings to ensure legal certainty.

Sanders, Anne, ‘Video-Hearings in Europe Before, During and After the COVID-19 Pandemic’ (2021) 12(2) International Journal for Court Administration Article 3
Abstract: While they were possible before in many countries, the COVID-19 crisis accelerated the use of remote- or video-hearings in courts in many European countries. It is unlikely that video-hearings will disappear with the end of the pandemic. Looking forward to the best possible use of remote hearings for the future, and to a new understanding how justice is done outside a physical courtroom, collecting and comparing the different legal frameworks and experiences in as many countries as possible can provide invaluable resources. This paper presents information on legal approaches and experiences provided by active and former members of the Council of Europe’s Consultative Council of European Judges (CCJE) from Albania, Andorra, Austria, Belgium, Bosnia and Herzegovina, Croatia, the Czech Republic, Finland, France, Germany, Ireland, Italy, Lithuania, Norway, Poland, Romania, Russia, San Marino, Spain, Sweden, Switzerland, Ukraine and the United Kingdom who generously replied to a questionnaire sent out by the CCJE secretariat in December 2020 on my behalf. The paper addresses the legal framework, the technical side of video-hearings and different experiences and challenges.

Sandoval, Clara, Michael Cruz and Camila Ruiz Segovia, ‘Victims’ Participation in Times of Covid-19 in Transitional Justice Accountability Mechanisms: What Is Needed for Virtual Hearings to Fulfil This Right? The Case of Colombia and the Special Jurisdiction for Peace’ in Ferstman, Carla and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 73–81 (published 30 June 2020)
Extract from Introduction: This paper explores some of the challenges faced by victims to ensure that their right to participate in transitional justice accountability mechanisms remains a reality in times of Covid-19. In particular, it considers victims’ participation through the use of information and Communication Technologies (ICTs), particularly virtual hearings. The paper looks at these issues in the context of the work of the Special Jurisdiction for Peace in Colombia, an accountability mechanism established by the Peace Agreement signed between the Colombian government and the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia or FARC) in 2016.

Santos Rutschman, Ana and Robert Gatter, ‘Smoke Screens: An Initial Analysis of the Coronavirus Lawsuits in The United States against China and The World Health Organization’ (Saint Louis University Legal Studies Research Paper No 2020-04, 2020)
Abstract: In this short essay we provide a preliminary analysis of the lawsuits filed by Missouri against China, and New York against the World Health Organization over the COVID-19 pandemic. We also situate the lawsuits against the expanding coronavirus-related misinformation ‘epidemic.’

Sátiro, Renato Máximo, Jessica Vitorino Martins and Marcos de Moraes Sousa, ‘The Courts in the Face of the COVID-19 Crisis: An Analysis of the Measures Adopted by the Brazilian Judicial System’ (2021) 12(2) International Journal for Court Administration Article 10
Abstract: The crisis caused by COVID-19 has triggered a series of changes at the global level, resulting in a rapid change in the way social relations are organized. The state is no exception to this complex scenario, and is responsible for making available to citizens the various administrative provisions essential to life in society, one of which is justice. In this context, the aim of the present work is to analyse the institutional response of the judiciary branch in Brazil to the pandemic period of the new coronavirus, contrasting the normative actions taken by the judiciary with the results obtained with these interventions. To that end, at first, the main regulations that have underpinned the conduct, positioning and action of the judiciary since the beginning of the crisis in Brazil, which occurred in March 2020, were collected and analysed in a total of 57 official documents issued by the Brazilian justice authorities. A posteriori, the report ‘Assessment of the impacts of the pandemic caused by COVID-19 on the court’s work processes’ was analysed, which includes analyses related to the adoption of rules relevant to issues of administrative management, procedural management and also the perceptions of impacts and difficulties due to the pandemic, as well as the other official documents published by the National Council of Justice – CNJ that provides statistics about the judicial indicators in times of pandemic. The data show a fast and comprehensive performance in the various fields in which justice operates, revealing a concern with health, social, administrative issues, among other aspects. The Judiciary has acted in an administrative unit, based on the regulations of a higher authority or of higher courts.

Scarlett, Gabrielle, ‘Virtual Court: Privacy and Security of the Vulnerable’ (SSRN Scholarly Paper ID 3845761, 13 December 2020)
Abstract: The COVID-19 pandemic has changed the way the world works. People are shopping, socializing, and working online, using technology to replace the in-person experiences of ordinary life. The court system is no exception. In most places, the entire judicial structure became remote at the end of March. However, without sufficient notice and adequate time to prepare, the switch to virtual courts was not a smooth transition. Among issues that went underexamined were the privacy rights of vulnerable members of society who appear in court. Using six states that chose different online platforms as case studies, this Article exposes the troubling consequences the use of virtual courts has had on the rights of minors, mentally ill and incapacitated persons. While this research reveals that privacy protections were often inadequate even before this switch to virtual court, it analyzes the further uneven outcomes after the switch to remote proceedings. Building on these findings, the Article supports the implementation of robust guidelines and specialized courts to protect the privacy interests of vulnerable members of society.

Schmitz, Amy J, ‘Arbitration in the Age of Covid: Examining Arbitration’s Move Online’ (2021) Cardozo Journal of Conflict Resolution (forthcoming)
Jurisdiction: USA
Abstract: Arbitration has been moving online over time with the growth of the Internet and Online Dispute Resolution (ODR), which includes use of technology to assist online negotiation, mediation, arbitration, and variations thereof. Online Arbitration (OArb) is nonetheless a unique subset of ODR because it usually culminates in a final and binding award by a neutral third party that is enforceable under the Federal Arbitration Act (FAA). Indeed, I have written about OArb on prior occasions, due to its unique status under the FAA and other arbitration laws. However, OArb was relatively limited until the Covid-19 pandemic sparked the acceleration of arbitration’s move online. At the same time, jurisprudence around the FAA has sent various signals that both help and hinder the growth of OArb. Furthermore, the 1925 FAA was not built to address innovations like virtual hearings, creating need for policies that adapt for technological progress. Accordingly, this Article discusses how recent jurisprudence and institutional promulgations may impact OArb, and offers considerations for courts, policymakers and practitioners shepherding OArb development.

Schmitz, Amy J and Claire Mendes, ‘Online Arbitration Protocols’ (University of Missouri School of Law Legal Studies Research Paper No 2021–13, 28 July 2021)
Abstract: Arbitration has been moving online for some time, especially with the growth of Online Dispute Resolution (‘ODR’), which includes using technology to assist online negotiation, mediation, arbitration, and variations thereof. Online Arbitration (‘OArb’) is nonetheless a unique subset of ODR because it usually culminates in a final and binding award by a neutral third party that is enforceable under the Federal Arbitration Act (‘FAA’) and other arbitration laws. Indeed, I have written about OArb on prior occasions, due to its unique status. However, OArb was relatively limited until the COVID-19 pandemic sparked its acceleration. It became the norm while in-person gatherings halted and courts closed, or severely limited the cases they could hear. Furthermore, most opine that OArb is here to stay due to its convenience and cost savings. The following is a chart that Mizzou Law student, Claire Mendes, and I put together noting main takeaways from a number of institutional OArb protocols.

Schmitz, Amy J and Janet Martinez, ‘ODR Providers Operating in the U.S.’ in Mohamed S Abdel Wahab, Ethan Katsh and Daniel Rainey (eds), Online Dispute Resolution: Theory and Practice: A Treatise on Technology and Dispute Resolution (Eleven International Publishing, forthcoming)
Abstract: Technology is revolutionizing the Alternative Dispute Resolution (ADR) field, especially in the wake of Covid-19. Despite the long-held assumptions that increasing understanding, building empathy, and crafting resolution are only possible in-person, effective ways have emerged for assisting the resolution of the exploding number of disputes that have burgeoned online. Technology has become the ‘fourth party’ through the growing field of online dispute resolution (ODR), which includes use of technology and computer-mediated-communication (CMC) in negotiation, mediation, arbitration and other dispute resolution processes. ODR is infiltrating every area of dispute resolution, from courts (small claims, civil, and family) to the block chain. Furthermore, the most prevalent process option is mediation, followed by negotiation and arbitration. This Chart aims to collect providers that self-identified as providing ‘ODR’ to the National Center for Technology and Dispute Resolution (NCTDR).Curiously, firms had self-identified as ‘ODR Providers’, but did not all offer ODR. The authors continue to gather and explore firms that identify themselves as ‘ODR Providers’ and thus the attached is a work-in-progress. Moreover, inclusion in the chart is not an endorsement or agreement with that designation. Again, this merely reports findings regarding those that identified themselves to the NCTDR and will hopefully engage ongoing research in the area.

Schmitz, Amy J and John Zeleznikow, ‘Intelligent Legal Tech to Empower Self-Represented Litigants’ (2021) Columbia Science and Technology Law Review (forthcoming)
Abstract: Legal technologies, or ‘legal tech,’ are disrupting the practice of law and providing efficiencies for businesses around the globe. Indeed, legal tech often conjures up notions around billion-dollar businesses and highly sophisticated parties. However, one branch of legal tech that holds particular promise for less sophisticated parties is expanding access to justice (A2J) through the use of online dispute resolution (ODR). This is because ODR uses technology to allow for online claim diagnosis, negotiation, and mediation without the time, money, and stress of traditional court processes. Indeed, courts are now moving traffic ticket, condominium, landlord/tenant, personal injury, debt collection, and even divorce claims online. The hope is that legal tech such as online triage and dispute resolution systems will provide means for obtaining remedies for self-represented litigants (SRLs) and those who cannot otherwise afford traditional litigation. Meanwhile, the Covid-19 pandemic has accelerated the growth of online processes, including court and administrative processes that traditionally occurred in person. Nonetheless, these online processes seem focused on mainly case management and communication, neglecting the need for more imaginative and innovative uses of technology. Accordingly, this Article proposes a six-module process framework for ODR programs and identify gaps in development – where new technologies are needed to advance A2J. Indeed, there is great room for development of Artificial Intelligence (AI) and data analytics to assist SRLs and others in pursuit of remedies, and justice.

Sears, Kathryn, ‘Better Balance: Why the Second Judicial District in New Mexico Should Prioritize Use of Preliminary Hearings’ (2021) 51(2) New Mexico Law Review 524-547
Abstract: The New Mexico Constitution guarantees that felony charges shall not be brought against a person prior to either a grand jury indictment or a preliminary hearing finding of probable cause. But in March 2020, due to the COVID-19 pandemic, New Mexico courts were forced to halt the use of grand jury proceedings. As a result, all felony charges brought for the remainder of the year 2020 were vetted through preliminary hearings. Moreover, New Mexico is a unique jurisdiction because it applies the Rules of Evidence in full strength at preliminary hearings. This Comment makes a case for the continued expansion in the use of preliminary hearings even as COVID-19 restrictions ease and grand juries become available again. Acknowledging the necessity to balance the use of preliminary hearings with grand jury proceedings this comment (1) illustrates the contours of both the grand jury and preliminary hearing rights in New Mexico; (2) describes the ongoing tension within the Second Judicial District regarding preliminary hearings and grand juries; (3) surveys states that either prioritize or offer prosecutors the discretion to use preliminary hearings and examines how these states treat the Rules of Evidence; (4) analyzes how the practical benefits of preliminary hearings are viable for both the prosecution and defendants; and (5) addresses how preliminary hearings balance the policy interests of the state with the rights of defendants.

Sethi, Amal, ‘Judging Under Extreme Conditions: A Court’s Role During a National Crisis’ (2021) 2(1: Special volume on 'Human Rights and Democracy in Times of National Crisis') Keele Law Review (forthcoming)
Abstract: Debating the role of a court during a national crisis is not a novel scholarly exercise. Several before have done so – and several others will follow. Despite the multitude of opinions on the topic, we are still not one step closer to resolving this issue as we were when these discussions first took place decades ago. The COVID-19 pandemic has given us another occasion to revisit the question. However, unlike the last time when this topic was the focus of discussion in the wake of the attacks of 9/11, the pandemic has taken place in the backdrop of a global decline in the quality of democracy and in an era in which courts have begun assuming a more active role in democratic societies. This allows us an opportunity to rethink some pre-existing notions. To add to it, legal academia has witnessed both a comparative and an interdisciplinary turn which helps reconsider this fundamental question using new insights and reference frames. This article is another addition to the long line of opinions on a court’s role during a national crisis. Nonetheless, in contrast to its predecessors, this article addresses this quandary from bottom-up and aims to construct a template for a court to operate in a national crisis that aspires to be applicable across different legal systems and social-political-economic environments.

Shammas, Michael, ‘The Verdict Is In: Online Jury Trials Are Possible’ (SSRN Scholarly Paper ID 3685422, 31 August 2020)
Jurisdiction: USA
Abstract: At the start of the COVID-19 pandemic, it was uncertain whether it would be possible to continue conducting civil jury trials. Now, however, the successful completion of both mock and real civil jury trials proves that online jury trials are possible, but that (due to confidentiality requirements) they will need to be at least partly conducted in person.

Shammas, Michael, ‘Thoughts on Optimizing Time & Attention in Virtual Trials’ (SSRN Scholarly Paper ID 3646490, 8 July 2020)
Abstract: I’ve previously examined the logistical difficulties affecting virtual trials and hearings. Two as-yet unexamined aspects involve technology’s impact on:
(1) judicial time management and,
(2) juror and attorney attention.
These questions, however, could not be more important, especially in the case of crucial monologues like a judge’s reading of jury instructions (the focus of this essay).
Given the brain’s tendency to wander, what about their usual style should judges alter when conducting trials and hearings over platforms like Zoom? How can judges account for the differences between online and physical interaction?

Shanahan, Colleen F et al, ‘COVID, Crisis and Courts’ (GWU Legal Studies Research Paper No 2020-51, 31 July 2020)
Jurisdiction: USA
Abstract: Our country is in crisis. The inequality and oppression that lies deep in the roots and is woven in the branches of our lives has been laid bare by a virus. Relentless state violence against black people has pushed protestors to the streets. We hope that the legislative and executive branches will respond with policy change for those who struggle the most among us: rental assistance, affordable housing, quality public education, comprehensive health and mental health care. We fear that the crisis will fade and we will return to more of the same. Whatever lies on the other side of this crisis, one thing is certain: one part of our government grapples with the individual consequences of inequality and oppression day in and day out and it will continue to do so with even more urgency in the future: the state civil courts.
Even before the current crisis, as other branches of government have failed to address inequality, state civil courts have become the government actor of last resort for the tens of millions of Americans each year who suffer the consequences of these failures. Now, these same courts — for the first time in history — have quickly and nimbly changed the way they provide justice. Courts’ improvisation in the face of a global public health crisis present a permanent opportunity for social change. In contrast to burgeoning attention to state criminal courts, this role for state civil courts was hidden from those not directly involved and largely ignored by scholars. Now it is unavoidable. This essay lays out a framework for change that state civil courts should embrace as they reopen to the tidal wave of litigants.

Shang, Carrie Shu, Wenli Guo and Charles Ho Wang Mak, ‘Two Paths Leading to the Same End? A Discussion of Development and Regulation of Online Mediation Under the COVID-19 in the People’s Republic of China and the United States’ (2020) World Arbitration and Mediation Review (forthcoming)
Abstract: The recent COVID-19 crisis has set the stage for a significant increase in the use of online dispute resolution. Under worldwide country lockdown and/or social distancing orders, behaviors of people have adjusted drastically. Further, the increased use of online mediation to resolve disputes has raised the legal community’s interest across jurisdictions. The purpose of this paper is to examine two different development paths of online mediation post-COVID-19 taken in the People’s Republic of China and the United States, the world’s two largest economies. The first part of the paper provides a background on the development of online mediation in China by examining a few newest judicial and administrative directives mandating state-wide experiment of online dispute resolution mechanisms. Moving on the discussion of the development of online mediation in China, it then focuses on the professional and self-initiated efforts of the dispute resolution community in the United States leading to the further surge in supply and demand of online mediation services. Building on the comparative analysis, the paper unpacks different roles of both public and private stakeholders play towards promoting the wider acceptance of online mediation initiatives in the world, speaking against any pre-fixed preference in dispute resolution for state-led or community-based approaches.

Sharma, Aryaman, ‘Covid-19 and Justice Delivery System: Challenges and Way Forward’ (2021) 24 Supremo Amicus Journal (unpaginated)
Abstract: This paper attempts to bring to the forefront the need to adopt an online model for the courts in India for a better functioning of judicial system and increased efficiency in providing justice to the people. Given the current period of COVID-19, this is the best time to bring changes in our judicial system. The paper talks about the justice delivery system which is currently active in our country as well as in other nations around the world and then systematically argues the need to have online courts and other services, like- online evidence filing, interrogations, etc. After talking about these new justice delivery systems and also explaining why India needs them in the longer run too (even after this lockdown is over) the paper puts forward the various challenges that needs to be overcome to bring about these changes. Overcoming the challenges is the way forward. The paper concludes with some suggestions of software and techniques which are being used by Courts of law all around the world during these times to take care of their cases efficiently and gives reason as to why India should also adopt these new technologies and bring the Indian Judicial System within the easy reach of all its citizens in a fast and timely manner.

Shrivastava, Anujay and Abhijeet Shrivastava, ‘Judicial Appointments, Collegium System, and Unresolved Constitutional Enigmas in India: Proposing an “Emergency Collegium” and the “Automatic Elevation Alternative”’ (2021) 1(4) Jus Corpus Law Journal 290–304
Abstract: From the constitutional history of Judicial Appointments in India, it is well-known that the manner and procedure in which Judicial Appointments happen today, is starkly different from the original Judicial Appointments procedure contemplated under the Indian Constitution. Originally, Judicial Appointments to the Higher Judiciary (including appointments to the Supreme Court of India under Article 124 of the Constitution) were primarily the task of the Executive, where the Judiciary had no real say in the appointments to Higher Judiciary. This dynamic saw a stark shift after the Second Judges’ Case and subsequent precedents, which tilted the power dynamics around Judicial Appointments to Higher Judiciary (i.e. Supreme Court and various High Courts) in favour of the Supreme Court, and also established a ‘Collegium System’ to govern such Judicial Appointments. However, a Constitutional Enigma revolving around Judicial Appointments still persists. Should the Supreme Court be bereaved of most of its sitting Judges and the total strength of the court reduce to less than five sitting Judges, the Collegium propounded by the Third Judges’ Case would come to a collapse. If such a scenario arises in wake of calamities such as the devastating effects of the ongoing COVID-19 pandemic, how would Judicial Appointments to the Higher Judiciary be made? In this article, we seek to address this Constitutional Enigma, which is an unlikely but not an impossible or too remote a reality. We highlight the lacunae in the present judicially created law concerning Judicial Appointments. Moving forward, we propose the idea of an ‘Emergency Collegium’ and lay out its modalities. Subsequently, we highlight an alternative of ‘automatic elevation’ of pan-India senior-most High Court Judges and also forward criticisms against such an alternative. Finally, we conclude by highlighting the necessity for a constitutional amendment or a ‘Fifth Judges’ Case’ to address this unresolved Constitutional Enigma.

Simon-Kerr, Julia Ann, ‘Unmasking Demeanor’ (SSRN Scholarly Paper ID 3610460, 22 May 2020)
Abstract: Demeanor is seen as a critical tool for assessing credibility in U.S. courtrooms. From the Confrontation Clause to the Immigration and Nationality Act to the Federal Rules of Civil Procedure to the common law of credibility, the U.S. legal system gives priority and deference to assessing demeanor in the courtroom. Evidence law instructs that we must see a witness’s whole face in order to effectively ‘read’ demeanor. Yet, a growing number of jurisdictions will require all participants in the courtroom to wear masks covering the nose, mouth and chin in order to prevent the spread of COVID-19. This essay canvasses the legal impediments to mask-wearing by witnesses. It argues that these legal obstacles are surmountable, and that this mask-wearing moment offers a unique opportunity to reassess the role of demeanor in credibility assessments. Focusing on demeanor forces witnesses to perform credibility, a performance that does not necessarily bring us closer to the truth.

Sinfield, Greg, ‘Let Justice Be Done’ (2020) 185(4749) Taxation 8-11
Jurisdiction: UK
Abstract: Explains how the First-tier Tribunal Tax Chamber moved to remote hearings in response to the coronavirus pandemic, and plans to use them in appropriate cases in future. Considers how the Chamber coped with its workload and why proceedings were stayed and some cases were determined on papers.

Singh, Ajay Pal, ‘Virtual Courts During the Covid-19 Pandemic: A Critical Exposition’ (2021) 24 Supremo Amicus Journal (unpaginated)
Abstract: The Covid-19 pandemic has had a profound effect on the Judicial System. In March 2020, a nation-wide lockdown was imposed in India and the Courts had to cease regular ‘physical’ hearings. However, this lockdown period has been used as an opportunity to deploy technology of Virtual Courts to ensure continuous administration of justice. The advantages of these Courts are that they use a remote working system with the help of various software’s and the Internet to adjudicate cases and there is limited requirement of actual human presence in the court premises thereby ensuring that working of the Courts doesn’t stop due to Covid-19 lockdown related restrictions. This system of Virtual Courts has its own pros and cons. A coordinated effort needs to be undertaken so that the various problems and disadvantages of this system are removed, and that a properly functioning system of ‘Virtual Courts’ is established with requisite digital infrastructure to ensure administration of justice and maintenance of rule of law. In this paper an attempt has been made to undertake an analysis of the Concept of Virtual Courts and Pros and Cons of these Courts. Though the Paper is predominantly focused on the recent developments regarding Virtual Courts in an Indian Context, reference has been made to trends in a few foreign jurisdictions as well.

Small, Andrew, ‘Peer to Peer: Covid-19 and Transforming Jury Trials in Australia’ (2021) 92(4) AQ - Australian Quarterly 36–43
Abstract: Along with concerts and cruise ship holidays, jury trials were an early casualty of Covid-19. When the pandemic reached Australia, governments realised that squeezing panels of 12 strangers shoulder-to-shoulder inside a jury box was no longer viable. One announcement followed another: on 16 March 2020, courts in NSW, Queensland, Victoria, and Western Australia suspended all jury trials; Tasmania did the same two days later.

Smith, Michael L, ‘The Citation of Unpublished Cases in the Wake of COVID-19’ [2021] Chapman Law Review (forthcoming)
Abstract: California’s Rules of Court prohibit the citation of unpublished state court opinions. Courts and litigants, however, may still cite unpublished federal opinions and rulings and unpublished opinions from other states’ courts. This may result in problems, such as limiting courts’ and parties’ authorities to a skewed sample set, and the covert importation of inapplicable, stricter federal court pleading standards in state court cases. COVID-19 was a stress-test that brought the problems with California’s citation rules into focus. The pandemic led to a flood of claims for pandemic-related business interruptions by insured business owners against their insurance companies. While state courts upheld some of these claims and overturned others at the pleading stage, federal courts took a virtually uniform approach in dismissing complaints by insureds. As time went on, however, litigants in California state courts could not rely on any of the favorable state court rulings, as they were were prohibited from citing those cases. Instead, courts and parties turned to the next best source of authority: California federal court rulings, which led to a skewed perspective of the case law. This Essay contemplates overturning California’s prohibition on citing unpublished state court cases altogether, and evaluates the benefits and disadvantages of such a step. Ultimately, this Essay concludes that a less-dramatic solution may solve some of the most acute problems with California’s citation rules: the simple proposal that courts and litigants interpret the rules as written, rather than in the expansive manner that courts have interposed. Under this approach, courts and parties can cite unpublished superior court opinions, so long as they are not issued by superior court appellate divisions, as persuasive authority. In situations where an unexpected technology, disaster, or pandemic gives rise to widespread litigation, this approach would give California state courts a more complete picture of the law.

Smith, Stephen, ‘The Right to a Public Trial in the Time of COVID-19’ (2020) 77(1) Washington & Lee Law Review Online 1-15
Abstract: Maintaining social distance in the time of COVID-19 is a public health priority. A crowded courtroom is an environment at odds with public health needs. Accordingly, until science determines otherwise, it will be necessary for judges to manage courtroom attendance and exclude the public from trials, wholly or in part. Courtrooms may be closed to the public, despite the Sixth Amendment’s right to a public trial, when the closure is justified by a strong government interest and is narrowly tailored to further that interest. Typically, this heightened scrutiny is applied on a case-by-case basis, and turns on a case’s specific circumstances. This essay proposes that in this period of pandemic, with indisputably strong government interests in public health and with few means available beyond closure to satisfy those interests, courtroom closures may be ordered by trial courts, and approved by appellate courts, almost categorically. It further suggests that there are alternative protections available that may be employed by courts to further the Sixth Amendment’s good government purposes in this time of emergency.

Sodhi, Arjan Bir, ‘Online Dispute Resolution: The Future of ODR in the Digitally Transforming World’ (SSRN Scholarly Paper ID 3912471, 14 July 2021)
Abstract: This article explores the current status and future growth of Online Dispute Resolution in the digitally transforming world. As we all know COVID-19 has been a catalyst of digital transformation, since the initial lockdown in March 2020, the entire working infrastructure had to shift online to adhere to the social distancing norms implemented by the majority of countries. Various public health measures provide some kind of hope that the pandemic can be contained, if not eliminated. The COVID-19 continues to pose enormous health and socio-economic challenges for the world especially to the Judicial framework. The disrupted court operations across the world have prompted judges to postpone nonessential proceedings and conduct others through video or phone which has to lead to further collection of backlog cases in the court. On the other hand, the transition of ADR in the online ecosystem boosts its reach and made it more economical and easily accessible and it can be clearly seen the ADR mechanism is on a right track and to become the preferred way to solve disputes for future parties involved in the conflict.

Sodhi, Arjan Bir, ‘Unequal Access to Justice: Lessons Learned for Dispute Resolution from the Shadow of the Pandemic’ (SSRN Scholarly Paper ID 3912462, 27 August 2021)
Abstract: The COVID-19 crisis is causing large-scale loss of life and severe human suffering globally. It has also generated a major economic, social and political crisis, which touches every aspect of people’s lives. Vulnerable and disadvantaged groups will be impacted more severely, especially those in precarious employment or financial conditions, those living in poor quality housing, the socially isolated and those already struggling with low subjective well-being or mental health conditions. Increased vulnerabilities are in turn likely to lead to a surge of legal needs, especially for people color, entrepreneurs, middle income and disadvantaged groups, which may in turn increase the pressures on social and economic systems, thus adding to the vicious cycle. As such, any pathway for recovery must integrate accessible and people centered justice systems as a core pillar, as legal and justice services play a major role in restoring economies, social cohesion and confidence in institutions.

Song, Anthony and Michael Legg, ‘Technology: The Courts and the Pandemic: The Role and Limits of Technology’ (2020) (66) LSJ: Law Society of NSW Journal 65–67
Abstract: COVID-19 was declared a pandemic by the World Health Organization on 12 March 2020. The Australian and state governments took various steps to try to slow the transmission of COVID-19, including closing businesses and outdoor areas, restricting group gatherings, encouraging people to work from home and follow ‘social distancing’ - reducing the number of close physical and social contacts a person has.

Sorabji, John, ‘Initial Reflections on the Potential Effects of the Covid-19 Pandemic on Courts and Judiciary of England and Wales’ (2021) 12(2) International Journal for Court Administration Article 6
Abstract: This paper considers the initial impact of the Cvid-19 pandemic on the administration of the courts in England and Wales. It explores the early empirical evidence the pandemic has had on the digitisation of justice. It further considers the medium to longer term potential impact the pandemic’s consequences, and the effect it has had on digitisation of the courts, on court procedures, the nature of the judiciary, and the legal profession.

Sorabji, John and Steven Vaughan, ‘“This Is Not A Rule”: COVID-19 in England & Wales and Criminal Justice Governance via Guidance’ (2021) European Journal of Risk Regulation (advance article, published 9 February 2021)
Abstract: Soft law is an integral part of the efficient and effective functioning of public administration in England & Wales, with a long history of use. As such, its deployment per se as part of the regulatory response to COVID-19 in England & Wales is unremarkable. What is more striking, however, is the extent to which soft law was deployed, with over 400 pieces of ‘guidance and regulations’ created by the government in Whitehall, to say nothing of the other primary and secondary legislation passed to deal with the crisis. In this article, we do three things. First, we look at the place of soft law in administrative law in England & Wales. We then turn to the broad regulatory framework, including soft law, which governs the COVID-19 pandemic in our jurisdiction. This background then allows us, in the final part of this article, to take a deep dive into the criminal justice system. Here, we show how the senior judiciary predominately relied on soft law in the form of judicial guidance and protocols to manage the system. This was against the backdrop of targeted legislation that provided for an expansion of access to the criminal courts via video and audio links and also a limited number of Practice Directions that have the force of law. Our deep dive allows us to argue that the approach taken by the senior judiciary to the use of soft law during the COVID-19 pandemic has, in a number of ways, been more effective than that taken by the government. That being said there remains room for improvement, particularly as concerns the nature of the judicial guidance issued and clarity in terms of what guidance was in place and when.

Sourdin, Tania, Bin Li and Donna McNamara, ‘Court Innovations and Access to Justice in Times of Crisis’ (2020) Health Policy and Technology (forthcoming)
Abstract: COVID-19 has disrupted not only the health sector but also justice systems. Courts around the world have had to respond quickly to the challenges presented by the pandemic and the associated social distancing restrictions. his has created significant challenges for the justice system and such challenges are likely to be further compounded in the post-pandemic era as there is a ‘tsunami’ of COVID-19-related disputes predicted. This article argues that courts should embrace newer technologies that support court services while being mindful of possible tech-related issues that can impact on justice objectives. We argue that by placing further emphasis on alternative dispute resolution methods and ODR into the future, this might offset the likely tsunami of COVID-related litigation which would enable courts, hospitals, medical professionals and patients to settle disputes in a just, equitable and more efficient manner.

Sourdin, Tania and John Zeleznikow, ‘Courts, Mediation and COVID-19’ (2020) 48(2) Australian Business Law Review 138-158 (unpublished version of article available on SSRN)
Abstract: Fundamental to the practice of law is the need to adapt to the ever-changing circumstances of human society. The COVID19 pandemic is requiring lawyers, courts, judges and others involved in the justice system (such as Alternative Dispute Resolution (‘ADR’) practitioners) to reassess how they operate in an rapidly changing environment that requires them to use technology to operate remotely and to make use of technological tools that often are not constructed to support the needs of those working in the justice sector. Responses by courts and ADR practitioners vary considerably from jurisdiction to jurisdiction and many responses are ad hoc and informed by a crisis management approach. At the same time, innovation that has often been stalled by inertia across the sector is challenging many to contemplate how rapidly approaches can be introduced to ensure that the justice system can continue to deliver outcomes without increasing delay that can enable economic recovery in the face of a rapid projected increase in disputes. This article explores current response to COVID19 in the context of courts and mediators and also considers these responses in view of past technological developments. The authors note that responses are changing on an almost daily basis in some jurisdictions and therefore note that some responses may alter again as courts and others continue to innovate in this new environment.

Sternlight, Jean R and Jennifer K Robbennolt, ‘High-Tech Dispute Resolution: Lessons from Psychology for a Post-Covid-19 Era’ (2021) DePaul Law Review (forthcoming)
Abstract: Covid-19 fostered a remote technology boom in the world of dispute resolution. Pre-pandemic, adoption of technical innovation in dispute resolution was slow moving. Some attorneys, courts, arbitrators, mediators and others did use technology, including telephone, e-mail, text, or videoconferences, or more ambitious online dispute resolution (ODR). But, to the chagrin of technology advocates, many conducted most dispute resolution largely in-person. The pandemic effectively put the emerging technological efforts on steroids. Even the most technologically challenged quickly began to replace in-person dispute resolution with videoconferencing, texting, and other technology. Courts throughout the world canceled all or most in-person trials, hearings, conferences, and appeals and began to experiment with using technologically-assisted alternatives. The U.S. Supreme Court held oral arguments using telephone conference calls. Attorneys, mediators, and arbitrators relied far more heavily on phone, e-mail, text, and video. Some courts expanded programs to help disputants obtain information and even resolve their disputes online. ‘Thanks’ to the pandemic, the traditionally slow-moving and technology-resistant legal community suddenly embraced many kinds of technology with both arms and more. This move to technology-mediated dispute resolution was met with greater enthusiasm than many might have anticipated, leading to predictions that we may never return to the world of extensive reliance on in-person dispute resolution. As the pandemic endured, lawyers, neutrals, and court administrators found that practices adopted out of desperation could be worth preserving post-pandemic. Michigan Supreme Court Chief Justice Bridget Mary McCormack, in describing ‘temporary’ pandemic adjustments, noted: ‘I don’t think that things will ever return to the way they were, and I think that is a good thing.’ Even many who were previously hesitant about or relatively unaware of the possible uses of technology saw the potential for clear benefits. Some judges, mediators, arbitrators, and court administrators observed that the online versions of litigation, mediation, and arbitration could be as good or even better than the in-person versions. Some began to consider new ways to combine processes or to use them differently. Tech advocates saw this as one silver lining of the pandemic, noting that Covid-19 achieved a result that twenty years of tech advocacy could not. As in-person interactions once again become possible, disputants, lawyers, courts, and neutrals will need to decide whether and under what circumstances to conduct interviews, depositions, court proceedings, negotiations, mediations, or arbitrations in-person, by phone, using videoconferencing, or in writing of some form. While many hail the potential benefits of using technology, others fear the loss of the human side of dispute resolution, expressing significant skepticism that technology can adequately replace the close contact, credibility assessment, rapport, and interpersonal connection they believe are critically important aspects of dispute resolution. Some tout the possibilities for using technology to facilitate access to justice, but others worry about the ways that technology might impede such access. Psychological science provides a useful lens through which to consider these essential issues. Using different means of communication can influence how participants experience the interaction and these experiential differences have important implications for dispute resolution. These implications offer valuable lessons for legal actors choosing which modes of communication to use and determining how to communicate well within a particular medium. While it is natural to seek simple answers, the psychological research we explore is nuanced, revealing that no single mode of communication is ‘best’ in all circumstances. In lieu of a simple solution we provide a multi-dimensional analysis that will help guide decision makers in making these critical determinations. Understanding the science will help participants maximize the benefits and minimize the drawbacks of different communication media, enabling them to make informed choices among media, design the chosen media to fit their goals, and adjust their advocacy, judging, negotiation, and other activities to the chosen medium. In Section II, we draw on psychology to analyze four key characteristics of communication media: (1) the channels that they provide for communication, (2) the degree to which they facilitate synchronous or asynchronous communication; (3) the extent to which they provide transparency or privacy; and (4) their formality, familiarity, and accessibility. In Section III, we explore how these characteristics affect participants in dispute resolution. We focus on the impacts of alternative modes of communication in ten areas that are particularly relevant to dispute resolution: (1) focus and fatigue; (2) rapport; (3) emotion; (4) the exchange of information; (5) participant behavior; (6) credibility determinations; (7) persuasion; (8) judgment and decision making; (9) procedural justice; and (10) public views of justice. In Section IV, we explore how decision makers might incorporate the insights of psychology into their technological choices. We identify three important variables for decision makers to consider: the goals the decision maker has for the process; the characteristics of the disputants; and the nature of the dispute or task. We explain why these variables are critically important and provide examples of how decision makers can draw on psychology to best fulfill their goals in designing and using technology for dispute resolution. In Section V, we briefly conclude and point to several areas in which additional research would be particularly useful.

Stewart, John M, ‘Just How Interconnected We Are’ (2020) 94(3) Florida Bar Journal 4–9
Abstract: In the article, the author discusses the interconnectedness of people around the world and the susceptibility of the economic and legal systems from uncontrolled interruptions like the COVID-19 pandemic. Topics include the need by the legal system to adopt technologies like telecommuting to ensure life, business, and work continuity and the request by the Florida Supreme Court to reform the rules of procedure and those governing The Florida Bar to prevent work interruption.

Stobbs, Nigel and Ian Freckelton ‘The Administration of Justice During Public Health Emergencies’ in Belinda Bennett and Ian Freckelton (eds), Pandemics, Public Health Emergencies and Government Powers: Perspectives on Australian Law (Federation Press, 2021)

Storer, Carol, ‘Does the Justice System Really Matter?’ [2020] (September) Legal Action 3
Jurisdiction: UK
Abstract: Argues that the Government must act to preserve the effectiveness of the justice system. Discusses the importance of the Legal Support Action Plan, the impact of the digitisation of courts and advice services on the most disadvantaged, the new legal needs generated by the coronavirus pandemic, the investigation into sustainability of civil legal aid, and the need for adequate funding.

Strong, SI, ‘Procedural Law in a Time of Pandemic: Australian Courts’ Response to COVID-19’ (Legal Studies Research Paper Series No 20/38, University of Sydney Law School, July 2020)
Abstract: This chapter considers how Australian courts have responded to the coronavirus pandemic as a matter of criminal and civil procedure. Although the diverse nature of the Australian judiciary makes it impossible to provide a detailed analysis of all actions taken nationwide, the chapter nevertheless provides a general overview of the procedural protocols and case law adopted in response to COVID-19 so as to preserve the lessons learned during this period for future reformers based in Australia and beyond.

Suhaimi, Roslaini Ramli and Enzus Tinianus, ‘The Rights of Defendant in the Virtual Court Examination During Covid-19 Pandemic at Banda Aceh District Court’ (Proceedings of the 1st International Conference on Law and Human Rights 2020 (ICLHR 2020), 2021) 209–214
Jurisdiction: Indonesia
Abstract: A defendant is a person who is accused of having committed an is included in a criminal act based on the evidence obtained, which results in being examined and tried in court. The examination of criminal cases at all levels of examination is carried out in accordance with the Criminal Procedure Code (KUHAP). KUHAP has given legalization to the accused to defend his interests, especially in the process of examination at court proceedings, because this right is very risky in proving the defendant’s guilt. However, with the outbreak of Corona Virus Disease 2019 (Covid-19) criminal case examinations have begun to be carried out online or virtually. It was feared that the trial was virtually neglected by the defendants’ rights. This article attempts to answer the following questions: (1) Is the virtual court mechanism in line with the prevailing laws and regulations? (2) How was the implementation of the defendant’s rights in a virtual trial during the Covid-19 Pandemic Era? According to the results of the research, the trial mechanism and the law of the procedure are still implemented according to the KUHAP. The trial process was the same as regulated in KUHAP, except that the defendant remained in the Detention Center (Rutan). This is to protect the community in preventing the spread of Covid-19. The rights of the defendant at trial must be maximally fulfilled. No rights of the defendant are neglected because the judge still follows the procedure as regulated in the KUHAP. In implementing the rights of the defendant, it relies fully on the role of the Legal Counsel, because it is the Legal Counsel who will fight for the rights of the defendant in court.

Swoboda, John-Paul, ‘Remote Hearings: The New-Normal? (Are They Fair? Are They Just?)’ [2020] (3) Journal of Personal Injury Law 208-211
Jurisdiction: UK
Abstract: Reflects on the growth of remote personal injury hearings due to the coronavirus pandemic, and whether such proceedings are both fair and just. Reviews the distinction between the two concepts illustrated by SC (A Child) v University Hospital Southampton NHS Foundation Trust (QBD), the lack of guidance on when hearings should be remote, whether a permanent move towards such hearings is emerging, and whether this will lower the quality of justice.

Taani, Muhanned Farhan Al, ‘The Impact of the Covid-19 Pandemic on Stopping and Completing the Period of Appeal against Judicial Rulings in Accordance with Jordanian Law’ (2021) 14(4) Indian Journal of Forensic Medicine and Toxicology 1903–1907
Abstract: This study attempts to shed light on the applicability of the Jordanian Civil Trials Law No. 24 of 1988 and its amendments in light of the COVID-19 pandemic and the prevention of litigants’ access to the courts because it is an official holiday on the grounds constituting it to be a force majeure or an emergency circumstance which is considered an unexpected event. The law did not explicitly stipulate a cessation of appeal against judgments. When this impediment is present, the appellant can complete the appeal period when this impediment ceases to exist. The completion of the prescribed periods becomes in effect, while Defense Order No. 5 bridged the gap in the provisions of the Civil Trials Law in light of the country’s passage through the COVID-19 pandemic, which came suddenly being an unexpected event. The legislator was unable to address the issue of stopping and completing the appeal period against the ruling issued for its appeal within the legal period stipulated in the law. Besides, this study includes the opinions of jurists in the Civil Trials Law. This study indicated that the event of force majeure or an emergency situation (COVID-19 pandemic) with the activation of Defense Law No. 13 of 1992 as it is pointing that completing the period of appeal with judicial rulings and the necessity of its application during the existence of the COVID-19 pandemic with the need to amend the Jordanian legislature for the legal loophole in this regard.

Tallodi, Timea, ‘Love of Video Mediation in the Time of Covid-19: An Initial Insight into Benefits and Challenges’ in Ferstman, Carla and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 247-255 (published 30 June 2020)
Abstract: Mediation’s claim to legitimacy is based largely on its promise to integrate responsiveness to personal needs and values into the process of dispute resolution, offering ‘personalised justice’ based on human needs. As face-to-face mediation sessions are not possible during the Covid-19 outbreak, mediation service providers are offering video mediation services. Before the onset of the pandemic, video mediation was used on a much smaller scale. Whilst this article highlights the benefits of video mediation it also identifies challenges that must be faced when seeking to incorporate video mediation as an integral part of service provision post-pandemic. It emphasises that if mediation is to continue to provide high quality personalised justice it is vital that practitioners, when considering the appropriate medium for each mediation, give thorough consideration to a wide range of factors. Such factors include parties’ need to maintain or reduce distance (geographical and psychological), and the rise of a new form of vulnerability that hinders less IT literate persons’ access to alternative dispute resolution mechanisms. The author includes references to her own personal experience of conducting video mediations in the United Kingdom (UK) and recommends the way forward for optimal integration of videoconferencing into mediation practice.

Tan, Ming Ren, ‘Testifying via Video Link: A View from Singapore - Anil Singh Gurm v J S Yeh & Co’ (2021) 21(1) Oxford University Commonwealth Law Journal 162–168
Abstract: Courts around the world often have to balance a whole host of competing considerations in determining whether witnesses should be permitted to testify via video link. In Polanski v Condé Nast Publications Ltd [2005] UKHL 10, the United Kingdom House of Lords was narrowly split (3–2) in carrying out this difficult balancing exercise. In February 2020, the Singapore Court of Appeal had the opportunity to carry out a similar balancing exercise in Anil Singh Gurm v J S Yeh & Co [2020] SGCA 5. At that time, very little was known about the coronavirus and its potentially far-reaching impact on judicial proceedings. Now, more than a year later, as the world continues to grapple with the effects of the global coronavirus pandemic, it may well be time for a rethink of the underlying policy considerations surrounding the use of video link evidence.

Tao, Frank, ‘Remote Court Hearings in a COVID-19 World: What We Can Learn from the Case Law to Date’ (2020) 22(9/10) Internet Law Bulletin 134–136
Jurisdiction: Australia
Abstract: The COVID-19 pandemic has caused courts to almost entirely stop conducting face-to-face hearings. With no clear end to the pandemic in sight, practitioners and their clients have been required to conduct video and telephone hearings. Some litigants have applied to vacate hearings on the basis that the proposed video or telephone substitute is unjust, unfair or unworkable. This article overviews the courts’ approach to resolving such applications and identifies the types of difficulties which may cause a civil hearing to be vacated. In doing so, this article offers some practical guidance for current and future litigants in overcoming the challenges associated with remote hearings.

Taschner, John, ‘Transformation of the American Legal System: Permanent Measures from COVID-19’ (2021) 24(2) Richmond Public Interest Law Review 1–26
Abstract: The COVID-19 pandemic upended virtually every aspect of everyday life, from grocery stores to judicial procedures. The American judicial process is a unique adversarial system that guarantees the right to confront, often before a live jury. Yet, the necessities of social distancing and protecting public health means that these once unshakeable tenets of the United States justice system have been forced to undergo watershed transformation throughout the pandemic. The word transformation is carefully chosen, as certain measures are no longer temporary. Rather, a fundamental shift in the formerly concrete facets of judicial procedure has occurred – almost certainly never to be fully reversed. In the article, I describe the potential benefits of the unprecedented shift, while comparing both the original design and social perceptions of the American court system and judicial procedure. While great potential presents for virtual hearings and trials to continue to provide justice throughout this chaotic period, there are many serious nuances to the untested digital shift that must be acknowledged and accounted for in creating new and permanent change.

Tatulych, Iryna Yuriyivna, ‘Civil Proceedings During Quarantine’ (2020) 7(2) European Journal of Law and Public Administration 184–194
Jurisdiction: Ukraine
Abstract: The article is devoted to the study of issues related to the proceedings in civil court cases during the quarantine period. The importance of ensuring continuous and secure access to justice is obvious to effectively protect violated, unrecognized or disputed rights, freedoms, or interests of individuals, the rights and interests of legal entities, the interests of the state. The article reveals the study of the issue of a person’s constitutional right realization to fair judicial protection during a pandemic. Legislation and regulations that contain the main recommendations for courts to administer justice during the quarantine period underwent the analysis. It is substantiated that neither the judicial system nor the guarantees of citizens for judicial protection can be ‘quarantined’ because the main function of the state, even in such conditions, is to ensure the implementation of the protection of the rights and freedoms of citizens. It is found out that justice should be not just a form of the judiciary, but an effective tool for protecting rights, freedoms, and interests. The court is the tool that ensures the effectiveness of judicial protection. To overcome the identified gaps, it was concluded that it is necessary to implement all components of electronic litigation, which will make an appeal to court more accessible and understandable, will completely abandon paper documentation in parallel with an electronic one, and in the future will lead to effective civil litigation and timely resolution, within a reasonable period.

Thomson, David K, ‘Appellate Advocacy in the Age of COVID-19’ (2020) 23(4) Judicial Division Record 1–4
Jurisdiction: USA
Abstract: Still, interacting over video has its drawbacks and judges and attorneys alike are learning as we go about how to make court proceedings held over video as smooth, simple, and professional as possible. Q: Do judges foresee video arguments becoming a permanent option for court proceedings that will be available after the pandemic has subsided? The orderliness of the arguments seems to have mitigated, at least to a degree, the inherently choppy nature of remote proceedings and the trouble of the attorneys talking over the justices.

Thornburg, Elizabeth G, ‘Observing Online Courts: Lessons from the Pandemic’ (SSRN Scholarly Paper ID 3696594, 21 September 2020)
Jurisdiction: USA
Abstract: Before the COVID-19 pandemic, few adults would have asked themselves the question, ‘what are courts?’ If they did, the most likely answer would have talked about the courts in terms of buildings. Suddenly a pandemic was upon us, and that forced us to think again. Courts went online, and looking at what happened helps us to consider more clearly what courts really are. In fact, courts are providers of important services. Focusing on that mission of service provides a filter for considering both current adaptations and future plans. When in-person hearings can resume safely, there will be a tendency to try to go back to the way things were before. But should we? To answer that question, we need to know more about what has been happening in those online hearings.
In March, to keep vital legal processes moving while keeping participants and the public safe, the Texas Office of Court Administration purchased Zoom licenses for all Texas judges and provided training on how to create public access to those proceedings on YouTube. During the period from March to August, Texas judges held an estimated 440,000 remote hearings in every case type and type of proceeding, including bench and jury trials, with 1.3 million participants lasting almost 1 million hours. In so doing, it provided a unique gift: a window into the crucial proceedings of everyday trial courts, hearings that are normally ignored and that almost never result in reported opinions.
This article describes the findings of on an observational study of hearings in those courts. A team of six law students observed online hearings between May 11th and June 30th and reported what they saw. In addition, the findings include input from interviews with judges, lawyers, and CASA staff. This article focuses on proceedings in the family courts because those courts were among the first large-scale users of online Zoom hearings and because they faced many of the most difficult situations in using the online format. The observations provide a look at the experience of judges, lawyers, parties and witnesses in family cases. Did the hearings ‘work’? Are there best practices for judges and lawyers? And how did the online setting impact the parties whose lives are before the courts?
The students observed 305 hearings. Of those, 198 were family law hearings. About sixty percent of the hearings were contested (at least at the outset of the hearing). To help manage the hearings, 26 used Zoom breakout rooms, 54 used waiting rooms, and 34 used screensharing (60 involved documents in evidence). As expected, there were technological difficulties: 95 of the hearings had some kind of problem with technology, but many of the problems were extremely minor and quickly resolved (e.g. problems logging in, audio quality, or speaking while muted) as the judges took on a new role by providing tech support. Many of those will disappear as judges and lawyers become familiar with the technology and the technology itself improves.From a human standpoint, consider some snapshots: an adoption ceremony was witnessed by 75 people from around the world; an out-of-state witness was able to testify; a mother was able to participate in her hearing without having to give up a day’s pay; an arresting officer was able to appear by taking a few moments off rather than spending hours traveling and waiting to testify; a lawyer avoided two hours of travel for a fifteen minute hearing; another lawyer was able to work productively while in a Zoom waiting room instead of. sitting on the courtroom benches for docket call; a judge serving multiple rural counties saved hours that would have been spent driving among courthouses.
After reporting on the observations, the article turns to lessons for the future. Even when courts are able to return to fully in-person hearings, should they? What processes should continue to be done online? What absolutely needs to hang onto in-person processes unless completely infeasible? More fundamentally, what has this taught us about what courts are really about? Courts and judges have done an admirable job adapting to the online environment, but can we also see opportunities for more fundamental innovation? When the pandemic is no longer forcing the issue, there will be a tendency to reach for the familiar, to return to doing everything in person, at the courthouse. It does not have to be that way. These lessons should not be lost, and the courts can reach beyond ‘normal’ -- they can reach for better.

Tomlinson, Joe et al, ‘Judicial Review in the Administrative Court during the COVID-19 Pandemic’ (SSRN Scholarly Paper ID 3580367, 15 April 2020)
Jurisdiction: UK
Abstract: In this paper we report the first set of preliminary empirical findings concerning how the judicial review process in the Administrative Court has operated under COVID-19 measures. Our findings suggest that, while there is support for the process continuing and remote hearings have certain strengths, there are also various technical difficulties arising and remote hearings are not seen as universally appropriate, even in a jurisdiction with a focus on ‘law-heavy’ disputes.

Tully, Matthew Brunsdon, ‘Virtual Family Courts: The Effect on Participants’ (2021) 164(7) Solicitors Journal 44-47
Extract from Introduction: The covid-19 pandemic has changed all of our lives, in ways that would not have been imaginable for most of us before the first lockdown. For most lawyers, even those involved in litigation, which would ordinarily require them to attend court for hearings, working from home has become the norm, as have remote hearings. We are all trying to work out how this will affect our working practices in the future. Are we moving towards the era of the virtual justice system – and even the virtual law firm? Or are we going to see, at some point in the hoped-for, not too distant, future, a move back to in person meetings, the court building, and to the office, and something akin to ‘business as usual’? Or is the likely outcome somewhere in the middle – are we going to retain elements of working, and litigating, from home, but ultimately retain office space and the need for some hearings or alternative dispute resolution (ADR) to be in person?

Turner, Jenia Iontcheva, ‘Remote Criminal Justice’ (SMU Dedman School of Law Legal Studies Research Paper No 487, 2020)
Jurisdiction: USA
Abstract: The coronavirus pandemic has forced courts to innovate to provide criminal justice while protecting public health. Many have turned to online platforms in order to conduct criminal proceedings without undue delay. The convenience of remote proceedings has led some to advocate for their expanded use after the pandemic is over. To assess the promise and peril of online criminal justice, I surveyed state and federal judges, prosecutors, and defense attorneys across Texas, where virtual proceedings have been employed for a range of criminal proceedings, starting in March 2020. The survey responses were supplemented with direct observations of remote plea hearings and the first criminal jury trial conducted via Zoom.
The survey responses paint a complicated picture. They suggest that, on the whole, online proceedings can save time and resources for the participants in criminal cases and can provide broader access to the courts for the public. Yet respondents also noted the dangers of remote justice, particularly in contested or evidentiary hearings and trials. These include the inability of the parties to present evidence and confront witnesses effectively, and the challenges of providing adequate legal assistance remotely. Respondents also expressed concern that the court’s perception of defendants may be negatively skewed by technology and that indigent defendants might be disproportionately harmed by the use of remote hearings. Defense attorneys were especially likely to be concerned about the use of the online format and to believe that it tends to harm their clients. Federal judges and prosecutors were also more likely than their state counterparts to be skeptical of the benefits of online criminal proceedings outside the context of the pandemic.
Based on the survey responses, an analysis of scholarship and case law, and first-hand observations of virtual criminal proceedings, the Article concludes with several recommendations about the future use of online criminal justice. It argues that states should be wary of expanding the use of remote proceedings after the pandemic is over. Online technology could be used more broadly to conduct status hearings and hearings on questions of law and to increase the frequency of attorney-client consultations. Beyond these narrow circumstances, however, remote hearings post-pandemic should be used only sparingly, as they carry too many risks to the fairness of the proceedings. If jurisdictions make the choice to use virtual proceedings in circumstances beyond status hearings and legal arguments, this should be done only after obtaining an informed and voluntary consent from the defendant, and with great care taken to reduce the risks of unfairness and unreliable results.

Vasaly, Mary, ‘Law in the Time of Coronavirus’ (2020) 23(4) Judicial Division Record 1–4
Jurisdiction: USA
Abstract: The corona-virus pandemic has required all of us who are part of the judicial system to learn new approaches to legal procedures in record time. Knowing that ‘justice delayed, is justice denied’, we all have felt pressure to adopt new methods of delivering justice in a timely fashion, despite the absence of the ordinary legal processes that have been a hallmark of our justice system. We should remember that our clerks are facing the same constantly changing requirements, and as a result, they must quickly learn new file processing methods, and new remote hearing technologies and procedures, and then, when they are modified, the amended methods and procedures.

Wallace, Anne and Kathy Laster, ‘Courts in Victoria, Australia, During COVID: Will Digital Innovation Stick?’ (2021) 12(2) International Journal for Court Administration Article 9
Abstract: We present a case-study of the swift digital response to COVID-19 restrictions by the courts in the State of Victoria, Australia’s second-largest jurisdiction. We analyse the extent to which the management of this crisis (Step 1 in John Kotter’s model of innovation) can serve as the catalyst for digital innovation in these courts. We contend that the history of innovation in Australia is of quick, pragmatic fixes which do not translate into systematic change. For example, although Australian courts are often credited with being pioneers in court technology, recourse to apparent ‘virtual courts’ before and during COVID is probably not truly innovative. Applying Boschma’s theory about the 5 ‘proximities’ which promote innovation — geographical, social, cognitive, institutional and organisational — we maintain that for these courts, those factors have, paradoxically, worked in the opposite direction to undermine technological innovation. However COVID has seen critical changes in a number of these elements, supported by ideological and practical concerns for courts. Taken together, we are cautiously optimistic that post-COVID, Kotter’s final stage of ‘Making it Stick’ through a technologically friendly legal culture which supports systematic and sustained court innovation, might just be possible if government is willing to fund a grander innovation agenda and has confidence in the courts’ ability to carry it through.

Walsh , John, ‘The Dangers of Digital’ [2020] (September) Legal Action 10-11
Jurisdiction: UK
Abstract: Reflects on the dangers which remote hearings and the use of artificial intelligence in judicial decision-making pose for access to justice during the coronavirus pandemic.

Whitear-Nel, Nicci, ‘Remote Justice: South Africa Lags Behind Just When COVID-19 Requires it’ (2020) 20(4) Without Prejudice 47-48
Abstract: The COVID-19 pandemic has had a catastrophic effect on so many aspects of our lives – including access to justice.

Wiley, Lindsay F and Stephen I Vladeck, ‘Coronavirus, Civil Liberties, and the Courts: The Case Against “Suspending” Judicial Review’ (2020) 133(9) Harvard Law Review Forum 179–198
Abstract: For obvious reasons, local and state orders designed to help ‘flatten the curve’ of novel coronavirus infections (and conserve health care capacity to treat coronavirus disease) have provoked a series of constitutional objections — and a growing number of lawsuits attempting to have those orders modified or overturned. Like the coronavirus crisis itself, much of that litigation remains ongoing as we write this Essay. But even in these early days, the emerging body of case law has rather elegantly teed up what we have previously described as “the central (and long-running) normative debate over emergency powers: Should constitutional constraints on government action be suspended in times of emergency (because emergencies are ‘extraconstitutional’), or do constitutional doctrines forged in calmer times adequately accommodate exigent circumstances?

Wilson, Melanie D, ‘The Pandemic Juror’ (2020) 77(1) Washington and Lee Law Review Online 65–96
Jurisdiction: USA
Abstract: While the deadly and highly contagious COVID-19 virus rages across the country, courts are resuming criminal jury trials. In moving forward, judges reference case backlogs, speedy trial rights, and concern for the rights of the accused. Overlooked in this calculus is the importance of juror safety. The Sixth Amendment guarantees ‘the right to a speedy and public trial, by an impartial jury.’ There is no justice without jurors. Even before the COVID-19 pandemic, the justice system sometimes took advantage of juror vulnerability, treating jurors callously, if not rudely, during voir dire by asking them intensely personal questions. During the pandemic, courts have intensified this mistreatment of jurors by exposing them to serious health risks – sometimes to decide cases with minor charges. This exploitation of jurors is irresponsible and short-sighted. By endangering jurors, courts are creating serious due process concerns for the accused and eroding public confidence in an already beleaguered system. If jurors are forced to serve on jury duty without adequate protections, verdicts will be suspect, mistrials will prevail, and many citizens who are fearful or susceptible will fail to appear, creating juries less representative of the community.Concerns about the virus are already resulting in some jurors defying their legal obligation and refusing to appear for service. Recent surveys show that because of COVID-19, three out of four jurors are at least somewhat nervous about attending a trial and that people of color, Democrats, and older Americans are very concerned about spreading and contracting the virus. When jurors are worried and distracted, they may rush to a verdict – any verdict – or fail to appreciate all of the evidence, resulting in wrongful convictions and erroneous acquittals. And, if even one juror tests positive during the trial, a mistrial may be declared to allow trial participants to quarantine. If we are going to require jurors to serve during this dangerous time, we must protect them to protect the criminal justice system itself.

Yadav, Dr Alok Kumar and Jivesh Jha, ‘Role of Judiciary and Social Welfare to Combat Coronavirus Pandemic in Nepal: A Study with Special Reference to India’s Epidemic Law’ (SSRN Scholarly Paper ID 3921020, 2020)
Abstract: The competent legislature of Nepal has adopted and enacted an epidemic law regime to curtail the transmission of outbreaks. However, these laws have glaring gaps. They are not comprehensive in nature. Nepal’s then king Mahendra brought Infectious Disease Act, 1964 into force to deal with the outbreaks. This one-page Act is much similar to that of India’s Epidemic Act, 1897 which discusses about the rights of the state but fails to prescribe the duties of the government towards its vulnerable citizens during the period of contagion. The 1964 Act fails to prescribe welfare functions to be carried out by the instrumentalities of the state for the welfare of the people. It means this law does not recognize the rights of the people during an outbreak. The crown’s law does not necessarily cast an obligation on the state instruments of Nepal to ensure the availability of food or compensation or financial assistance to the daily wagers, migrant labourers, informal sectors or poor and needy ones who have suffered due to unprecedented Coronavirus pandemic. Unfortunately, the epidemic law of India is also enacted in similar terms. The prevailing epidemic law regimes of India and Nepal neither direct the state to advance research on antibodies/antidotes nor do they oblige the states to set up a common forum of lawyers, economists, sociologists, biologists, bacteriologists, virologists, biomedical scientists and among other experts to devise plans and policies for crisis preparedness and vulnerability reduction.

Zubair, Ayyan, ‘Confrontation During COVID’ (SSRN Scholarly Paper ID 3702551, 30 September 2020)
Jurisdiction: USA
Abstract: The opportunity to face one’s accuser is a fundamental right guaranteed by the Sixth Amendment’s Confrontation Clause. However, our legal system has utilized videoconferencing technology long before Zoom became a verb in the American lexicon. And in Maryland v. Craig, the United States Supreme Court established a two-step ‘necessity and reliability’ test for video testimony offered by child survivors of sexual abuse against their alleged abuser. As we move towards an increasingly virtual world during the COVID-19 pandemic, courts, prosecutors, defense attorneys, and legal scholars are conflicted as to whether government witnesses in criminal trials should be permitted to testify by videoconference in our new socially-distant reality and beyond.In this Note, I enter this debate by offering two proposals. In the short term, I contend that judges should not extend Craig to permit accusatory witnesses to testify over videoconference during the pandemic. A Rule 15 deposition, I contend, is a more constitutionally-sound alternative to in-person testimony than is video testimony because it provides the defendant the opportunity to confront the witness in-person (albeit socially-distant). In the long term, I argue that the Court should remove its reliability and public policy analyses in Craig, which have been rendered impermissible by its later decision in Crawford v. Washington. Instead, the Court should adopt what I call ‘hierarchy of methods’ approach, permitting video testimony only when securing in-court testimony or Rule 15 deposition of an essential witness is infeasible.

This site is powered by FoswikiCopyright © by the contributing authors. All material on this collaboration platform is the property of the contributing authors.
Ideas, requests, problems regarding AustLII Communities? Send feedback
This website is using cookies. More info. That's Fine