Courts / Dispute Resolution

  • This section includes literature on civil and criminal proceedings.
  • Literature on judicial review is listed with the topic eg: judicial review of administrative action is listed in the Administrative Law section
  • Literature on international arbitration is listed in the International Law > International Arbitration section.
Abu, Akua F, ‘Remote Justice: Confronting the Use of Video Teleconference Testimony in Massachusetts Criminal Trials’ (2020) 34(1) Harvard Journal of Law & Technology 307–346
Abstract: The Note proceeds as follows. Part II provides a brief overview of the development and current usage of procedures for remote testimony, including VTC. Part III examines the current state of the law regarding the confrontation issues raised by the use of VTC technology both at the federal level and within other state court systems. Part IV examines Massachusetts state case law governing the use of video testimony. Part V offers a normative argument against rapidly expanding the use of such testimony, primarily based on policy rationales regarding the limited effectiveness of cross-examination and other elements of confrontation. Part VI applies this argument in evaluating the use of VTC in light of the COVID-19 pandemic. A brief conclusion follows. This Note recommends a functional framework for courts adapting courtroom procedure in response to the pandemic and suggests how courts should think about confrontation rights and evidentiary standards in light of evolving technologies with the potential to change courtroom operations.

‘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’.
 
Note:
Addadzi-Koom, Maame Efua, ‘COVID-19 and Access to Justice in the ECOWAS Court: Reflecting on Early Judicial Responses and Its Future Implications’ (2023) 10(2: Special Edition on COVID-19) KNUST Law Journal 53–68
Abstract: Nigeria, home to the ECOWAS Court, was the first country in West and sub- Saharan Africa to confirm a Covid-i9 case. Lockdown restrictions in Nigeria, therefore, directly affected the ECOWAS Court’s operations. This study reflects on the ECOWAS Court’s early responses at the height of the global pandemic and its impact on access to justice. It asks, how did the ECOWAS Court respond to the Covid-19 pandemic in the first few weeks? To what extent did the Court remain in function within the period? What impact did the emergency measures by the Court have on access to justice? What potential do the measures put in place by the Court hold to become the new normal post-pandemic? Drawing from correspondence with a key informant at the ECOWAS Court, comprehensive desk- based research, and a review of relevant documents, this exploratory study found that while the Court in the early days suspended its operations indefinitely, it periodically reviewed the pandemic situation to inform its next steps which later incorporated some digital interventions. The implications and lessons drawn from the findings provide preliminary guidance for future crisis management for the Regional Court.

Agrawal, Pari, ‘Virtual Court System in India: An Experiment’ (SSRN Scholarly Paper ID 4090127, 8 December 2021)
Abstract: The COVID-19 pandemic caused an economic depression and has also affected the health and industrial sectors of the whole world. In addition to this, there was also a massive change in how various nations perceive and serve justice without actually coming into contact with the help of the internet. During the COVID-19 crisis, where few took it as a danger, the courts took it as an opportunity to serve justice without hindrance, with the help of increasing internet facilities and accessibilities, India, including other nations like the United States, Brazil, Turkey, UK, Canada, Italy, China, Singapore, Europe, Bangladesh, Nigeria, Peru, and Hungary. The virtual courts pose to be an effective means to conduct court proceedings, removing the geographical barriers and increasing the productivity of courtrooms. However, it also includes the technical glitches that come with it, such as connectivity issues and various other challenges. While on the other hand, the need for virtual courts during the pandemic cannot be ignored. This research paper will mainly focus on the E-Court Project initiated by the Parliament of India on September 18th, 2020. It will answer the most controversial question of whether virtual courts were appropriate alternatives for open courts during the COVID-19 pandemic or not.Further, the paper will discuss the benefits and advantages of the e-courts, issues, and challenges faced while shifting to them and operating them. Moreover, it will also bring to various light situations where virtual courts were already used in India and what were the issues faced at that time.

Ahmed, Leyla, ‘Legal Practice in Kenya: Embracing Automation and E-Judiciary’ in Suresh Nanwani and William Loxley (eds), Social Structure Adaptation to COVID-19: Impact on Humanity (Taylor & Francis, 2024) 122-131 [OPEN ACCESS E-BOOK]
Abstract: The confirmation of the first COVID-19 case in Kenya led to the scaling down of most government services, including service delivery in the judiciary. The focus of this chapter is the introduction of e-judiciary and how it changed the practice within the legal profession.

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.

Alkon, Cynthia, ‘Criminal Court System Failures During COVID-19: An Empirical Study’ (2022) 37(4) Ohio State Journal on Dispute Resolution 453–536
Abstract: How did the criminal legal system respond to the early months of pandemic in 2020? This article reports the results of a unique national survey of judges, defense lawyers, and prosecutors that gives a snapshot of how the criminal legal system responded to the COVID-19 in the first five chaotic months. Criminal courts in the United States rely on in-person proceedings and formal and informal in-person communications to manage caseloads. The survey results detail, in ways not previously fully understood, how crucial these in-person communications are and how ill-prepared the criminal courts and legal professionals were to deal with the quick change to online and remote platforms. Criminal Courts also tend to have top-down, non-consensual decision making, and have not traditionally been heavy users of dispute system design approaches to change and reform. This means that there were not processes already in place to consult with all the professionals as changes were being made. This may be one reason for the critical system failures reported in the survey on issues such as confidential attorney-client communications, as well as serious concerns surrounding physical safety inside courthouses and jails. The responses to the survey paint a picture of state courts that are chaotic, unpredictable, and facing serious case backlogs, as they have not been doing normal case processing since mid-March of 2020. As with many other parts of our society, the criminal courts were unprepared to deal with the pandemic and are still struggling with how to adapt. One truism of the pandemic has been that we may all be on the same rough seas, but we are not all in the same boat. This survey highlights that reality.

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?

Almashni, Mohammed Ibrahim, Yusramizza Md Isa Yusuff and Nor Azlina Mohd Noor, ‘Public Hearings Principle in The Palestinian Civil Procedure Law and Its Relationship to Public Order Concept in Light of The Covid-19 Pandemic’ (2022) 7(2s) BiLD Law Journal 59–66
Abstract: The importance of the public hearing’s principle or public of trial sessions clearly appears through the guarantee it provides to litigants during the hearing of the case before the court. This principle is affirmed in the Palestinian Civil and Commercial Procedures Law No. 2 of 2001 as well as in the Palestinian Basic Law of 2003. Public hearings are one of the fundamental guarantees in the litigation process because they create a kind of popular monitoring of the work of the judiciary, and they also create a sense of reassurance between people and litigants about the fairness and impartiality of the judges. This is what is stipulated by the laws of most countries, but it should be noted in this regard that each rule has an exception, so the general principle is public of trial sessions, but the Palestinian legislator excluded some cases and gave the court freedom to make the session secret in certain cases. These cases relate to maintaining the confidentiality and sanctity of the family as well as preserving public order and morals in society. In addition, recently, hearings have become restricted to the parties to the case and their lawyers due to the (Covid-19) pandemic under the pretext of social distancing, prevention and public safety measures.

Alzoubi, Mohammad Abel Khaliq and Muhammad Azami Masoud Abu Moghli, ‘The Legal and Procedural Impact of the Corona Pandemic on Procedural Deadlines and Litigation: Comparative Study’ (2022) 15(4) Baltic Journal of Law & Politics 1427–1442
Abstract: The region and the countries of the world as a whole were exposed to a global epidemic of Covid 19 at the beginning of the year 2020, which greatly affected all areas of political, economic and health life. The World Health Organization declared a state of emergency in the world, so countries made partial or total closures and curfews. The Jordanian legislator declared a state of emergency and activated Defense Order No. (5) Of 2020 in accordance with the provisions of Defense Law No. 13 of 1992, and closed all activities except for the medical field. In the judicial field, litigation and court procedures stopped from March 18, 2020 to May 25, 2020, and that, created a legislative vacuum in regulating legal relations, exceeding legal periods, and a defect in procedural deadlines in light of this emergency circumstance. Here, many questions arise about how to address the legal impact on judicial procedures that were suspended as a result of the curfew, the dates of the sessions that were postponed, and the impact on the implementation law in both Jordanian legislation compared to Egyptian legislation.

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.

Arif, Rabiya, Nadia Khadam and Nusrat Azeema, ‘The Online Dispute Resolution Mechanism: Legal Solution to E-Commerce Disputes during Covid-19 in Pakistan’ (2023) 1(1) Academic Student Research Journal Article 1
Abstract: Due to COVID-19, governments around the world imposed precautionary measures that restricted people in their movement, but the need for items essential for living remained there, and for the fulfillment of such needs, they quickly turned to online platforms. Pakistan has also witnessed a sudden change in consumer behavior that has accelerated the development of the e-commerce industry of Pakistan. When e-commerce transactions are taking place, corresponding disputes will also arise, so a suitable and effective dispute resolution mechanism is required that will resolve e-commerce disputes, keeping in view the ongoing pandemic situation and the Online Dispute Resolution (ODR) mechanism. ODR is the best-suited mechanism for handling and resolving e-commerce disputes because it is speedy, easy, inexpensive, and capable of providing adequate remedy and does not require physical interaction between the parties in dispute. Hence ODR mechanism needed to be established and enforced in the judicial system of Pakistan. The research studies the ODR from the perspective of a doctrinal research approach.

Ariqah, Putri, ‘Advantages and Disadvantages of The Implementation of E-Litigation in Indonesia During the Pandemic Era’ (International Proceeding: Law and Development in the Era of Pandemic, Faculty of Law, Universitas Islam Indonesia, 28 November 2020, 2021) 106–110
Abstract: The presence of Corona Virus Disease 2019 (COVID-19) has brought significant impact on human life, such as in the fields of economic, social, law and politic. Through the Presidential Decree of the Republic of Indonesia Number 12 of 2020 concerning the Designation of Non-Natural Disaster for the Spread of Corona Virus Disease 2019 (COVID-19) as a National Disaster by President Joko Widodo, the government take the action by issued policy related to Work from Home (WHF) with the purpose to reduce the spread of COVID-19 virus, by establishing the work from home policies. In the legal aspect, one of the impacts caused by the WFH policies is to be precise in the application of the trial system called E Litigation. So, because of that, in this paper, I will discuss related to How was the regulation regarding the implementation of E-Litigation in Indonesia during the Pandemic Era? and what are the advantages and disadvantages of Implementation of E-Litigation in Indonesia During the Pandemic Era? The methodology research that will be used in this paper is a normative legal research method in which legal research conducted by examining library materials or secondary data. By this writing, hopefully it can provide information to the society, government and law enforcement officials to be aware of advantages and disadvantages of the implementation of E-Litigation in Indonesia during the pandemic era and hopefully there will be improvements to the deficiencies faced in the application of the E-Litigation system in this pandemic era.

Arora, Tarun, ‘Pandemic and Community’s Sense of Justice through Suo Motu in India’ (2022) 26(7) The International Journal of Human Rights 1272–1292
Abstract: An ideal citizen centric society wedded to the democratic governance always keeps its laws in motion to build an egalitarian and just order. Aesthetic virtue of law lies in the realisation of justice and the creation of an egalitarian order. Against this backdrop, the present paper aims to examine the approach of the Supreme Court of India (SCI) towards COVID-19 Pandemic through suo motu proceedings from various perspectives of jurisprudence and constitutionalism. The government claimed to have strived intensively with full vigour but the response due tolack of preparedness and intense gravity of the catastrophe, the efforts of the government appeared negligible. It warranted prompt revisit of priorities which compelled the SCI to intervene and evaluate the legitimacy of the executive action. Furthermore, it impelled to examine the role of the SCI in responding to the community’s sense of justice and humanising justice. The paper presents the solution to the paradox generated out of the inherent friction between constitutional authority of judicial review and resistance of judicial review of executive actions by a populist government. The scope of the discussion has primarily been confined to Orders of the SCI in suo motu hearings and examined accordingly.

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.

Atwood, Judge Del, ‘COVID-19 Impacts on Courts in Canada’ (2021) 60(3) Judges’ Journal 24–25
Abstract: The SARS-CoV-2 novel corona-virus and its disease consequent, COVID-19, have had a transformative -- and sometimes disruptive -- effect on court operations in Canada. Much as with the pandemic itself, the impacts have been uneven, borne most heavily by provinces that have experienced the highest levels of infection and transmissibility. Some of the initial procedural and structural changes implemented by the judiciary worked well in protecting the health and safety of court-service users but posed barriers to accessibility and transparency, leading to delays in the timely adjudication of cases. However, through effective collaboration with justice stakeholders, many of those early-onset problems have been resolved. The courts in Canada have developed innovative means of delivering just outcomes; some of these changes are likely to remain in the future as we learn to live with a new sense of normal.

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) Southwestern Law Review 20–39
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) 1(1–3) Legal Policy and Pandemics: The Journal of the Global Pandemic Network 271–278
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.

Bartosz, Szolc-Nartowski, ‘Coronavirus and the Justice System in Poland’ (2020) 3(7) Issue 2-3/2020 172–175
Abstract: The justice system was unprepared for the dangers of the Coronavirus pandemic, both in Poland and everywhere in the world. However, the need for safeguarding fundamental civil rights, such as human life and health, has always been the highest priority. In this note the measures aimed to protect every during the pandemic in Poland were studied and concluding remarks to be learned were proposed.

Batlan, Felice, ‘Juvenile Protection Courts and the Pandemic: A View from Inside Out’ (2022) 18(2) University of St. Thomas Law Journal 272–294
Abstract: The article proceeds as follows: Part II sets forth the thick literature and data that demonstrates that the juvenile protection system creates racial disparity and embodies structural racism. It documents the current cry for reform emanating from those who are within the system as well as activists. Part III discusses and describes juvenile protection in Illinois, including how an alleged case is reported and investigated and how it winds its way through the court. It argues that current definitions of neglect as well as practices followed by the court allow for a vast potential of both implicit and explicit racial bias that negatively impacts parents involved in such proceedings. Part IV discusses the use of Zoom to deliver services to parents and conduct virtual court proceedings. It questions whether Zoom allowed parents to fully participate in proceedings and how the digital divide may result in the exacerbation of racial inequalities. I make a number of recommendations in Part V regarding how juvenile protection courts can immediately institute a variety of reforms to ameliorate racial disparities and structural racism within the system. My conclusion, however, questions whether piecemeal reforms can ever create a truly equitable system.

Bays, Elizabeth, ‘Mr. Crawford Gets COVID: Courts’ Struggle to Preserve the Confrontation Clause During COVID and What It Teaches Us About the Underlying Rights’ (2023) 98(1) New York University Law Review 239–281
Abstract: One of the things courts across the nation struggled with throughout the COVID-19 pandemic was the conflict between preserving defendants’ rights under the Confrontation Clause of the Sixth Amendment and implementing the safest public health measures. Measures like masking or virtual testimony recommended by public health officials threatened to abridge defendants’ rights. This Note has two primary contentions. First, it will argue that the wide variation in the ways courts chose to resolve this tension revealed a fundamental issue in our Confrontation Clause jurisprudence: Courts have never actually defined the underlying right. In fact, this Note will argue, that the ‘confrontation right’ is more appropriately understood as a bundle of distinct rights which must be carefully prioritized. Second, this Note will argue that the standards used to adopt these modifications were insufficiently rigorous. It proposes, therefore, that it is time for the legislature to intervene as they have in other situations involving modified confrontation, and to provide courts with a structured procedure for authorizing modified witness testimony during times of emergency.

Beatty, David M, ‘Covid, Courts, Communists and Common Sense’ (2022) 31(1) Constitutional Forum / Forum Constitutionnel 1–6
Extract: The Supreme Court of Canada has never been asked for its opinion about compulsory vaccinations. When courts have the final say in deciding the best way to fight Covid-19, it is difficult for members of the public to participate in a meaningful way because the manner in which judges talk and justify their decisions effectively excludes them from the conversation. They need lawyers to represent them and arguments are made and judgments are written in a style and language that makes them difficult to understand except by a professional elite. Critically, they consistently fail to connect with the people who end up losing their case and who feel their concerns have been depreciated or ignored.

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.

Bender, Matt, ‘Unmuted: Solutions to Safeguard Constitutional Rights in Virtual Courtrooms and How Technology Can Expand Access to Counsel and Transparency in the Criminal Justice System’ (2021) 66(1) Villanova Law Review 1–61
Abstract: A defendant’s fundamental right to a public trial, and the press and community’s separate right to watch court have been threatened by the shift to virtual hearings. These independent constitutional rights can be in harmony in some cases and clash in others. They cannot be incompatible. Public interest in criminal justice transparency is increasingly crystallized, but courts have often become more opaque, which jeopardizes First and Sixth Amendment rights. This paper addresses the conflict and confronts a key question: how can we be assured that remote and virtual hearings like Zoom arraignments or trials guarantee the same rights as traditional court hearings? Instead of rejecting virtual criminal hearings outright, new proposals are offered for how virtual courtrooms can safeguard constitutional rights. The prevailing belief that criminal defendants should reject virtual trials is questioned. Virtual trials may lead to better outcomes for defendants than traditional trials, specifically during the ongoing pandemic. Beyond preserving rights in a virtual courtroom, the ways technology can improve the criminal justice system are explored. Through an analysis of existing indigent defense and First Amendment scholarship, the myth that traditional court decorum should trump open court and virtual hearings is addressed. Judicial legitimacy and transparency may benefit when criminal cases are accessible on virtual platforms or livestreamed. Transparency can help safeguard defendants’s rights and improve indigent clients’s representation and outcomes. Instead of disrupting the courtroom—whether a hearing is virtual or traditional—convenient public access helps a community learn more about the criminal justice system and evaluate cases, judges, and attorneys. These proposals have significant implications for courts and clients by providing a framework for virtual litigation, and leveraging technology for a more equitable criminal justice system. Livestreams and virtual, remote hearings can improve the right of representation for indigent defendants by increasing access to quality counsel, reducing costs, creating a more competitive legal market, and expanding a client’s choice of attorneys.

Bhandarkar, Abhijit, Altamash Kadir and Ritika Dhabaria, ‘Rejuvenating the Law through Technology in India with Special Reference to Corporate Governance, the Judicial System and Alternate Dispute Resolution’ (SSRN Scholarly Paper ID 3981361, 9 December 2021)
Abstract: The law is meaningless, if it is not uniform in its application. This uniformity can only exist when the law is accessible. Technology has played a central role in helping people adapt to the new realities of physical restrictions brought about by the COVID-19 pandemic. The web of restrictions threatened accessibility to the Law and the uniformity of its application. However, entities soon adapted to the new normal by using technology. This paper examines these adaptations and assesses the positive impact that technology provides across diverse parameters and its desirability in the present COVID-19 circumstances and also in the future. In the world of COVID-19, most companies have adapted to comprehensive solutions involving technology for good corporate governance. This paper highlights the importance of incorporation of technology (like holding board meetings online) for increasing efficiency of the company and providing maximised benefits to itself and its stakeholders. The e-courts project has made significant advancements in the implementation of information and communication technology in the Judiciary. All Courts in India, except 14 technically not feasible sites are equipped with high-speed WAN connections. During the pandemic, some Courts in India have also adopted ad-hoc technological solutions to carry out a majority of all their functions digitally. This paper encourages the need to further build on these foundational blocks of progress towards a digital judicial system. A digital judicial system would increase access to all courts and tribunals reduce the administrative burden of courts, lead to a better legal education system, decrease costs to litigants/courts and have a positive impact on the environment. Similarly, online dispute resolution uses technology to facilitate the resolution of disputes between parties. It consists of negotiation, mediation or arbitration, or a combination of all three. This paper analyses the possibility of this furthering the purpose of Alternate Dispute Resolution, turning resolution into a truer creature of contracts. Additionally, the utility of blockchain arbitration is assessed in juxtaposition to enforceability of awards under Indian law. Furthermore, there are other possibilities that the advancement in technology brings to the legal field. This paper evaluates the indirect impact of technology in relation to the environment and the education system.

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.

Bondoc, Audrey Shane, ‘Cybercrime Prevalence during COVID-19 Pandemic and Psychological Effects and Impact of Pre-Trial Publicity: A Review of Ronnel Mas’ Case’ (SSRN Scholarly Paper No 4532255, 10 June 2020)
Abstract: The aim of this case study is to explore Ronnel Mas’ Case to identify and analyze the prevalence of cybercrimes during the COVID-19 pandemic, and the psychological effects of pre-trial publicity of crime suspects through media in-relation to Mas’ Case. The pre-trial publicity of the accused who is not yet convicted by the court causes higher chances of an adverse effect to the accused’s mental health and fair trial. The accusation that Mr. Mas has faced, also exhibited the lapses of the criminal justice system, specifically the law enforcement. Thus, strict observance of laws, rules and criminal procedure must be adhered at all costs to prevent violations in order to have proper, fair and impartial proceedings ensuring the maintenance of the rights of the accused. Moreover, the sense of responsibility of a citizen towards social media must always be applied.

Bradley, Liz and Hillary B Farber, ‘Virtually Incredible: Rethinking Deference to Demeanor When Assessing Credibility in Asylum Cases Conducted by Video Teleconference’ (2022) 36(2) Georgetown Immigration Law Journal 515–570
Abstract: The COVID-19 pandemic forced courthouses around the country to shutter their doors to in-person hearings and embrace video teleconferencing (VTC), launching a technology proliferation within the U.S. legal system. Immigration courts have long been authorized to use VTC, but the pandemic prompted the Executive Office for Immigration Review (EOIR) to expand video capabilities and encourage the use of video ‘to the maximum extent practicable.’ In this technology pivot, we must consider how VTC affects cases for international humanitarian protections, where an immigration judge’s ability to accurately gauge an applicant’s demeanor can have life-or-death consequences. This Article takes a deep dive into the law and social science regarding demeanor-based credibility assessments and examines the potential impact of VTC on the adjudication of asylum, withholding of removal, and Convention Against Torture (CAT) claims. With empirical and doctrinal grounding, it recommends a prohibition on adverse credibility findings based on demeanor for hearings conducted via video. The assumptions that underpin the extraordinary deference afforded to immigration judges’ demeanor assessments are incongruous with the realities of virtual hearings. Demeanor is an unreliable metric for credibility, even for in-person hearings. Video distorts how we interact and further strains the tenuous relationship between demeanor and truthfulness. The current legal framework is ill-suited to safeguard against erroneous demeanor findings. A prohibition on demeanor-based adverse credibility findings for hearings conducted via VTC would embrace the benefits of our technological advancements while instilling greater confidence in the fair adjudication of humanitarian protection claims.

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.

Burke, Jack and Shaun McCarthy, ‘Should Remote Hearings Be Extended Post the COVID-19 Pandemic in Hong Kong and What Could Be the Ramifications for Practical Legal Training?’ (2022) 9(1) Journal of International and Comparative Law 155–178
Abstract: As a result of the lockdowns and social distancing measures imposed by COVID-19, courts in many common law jurisdictions were required to rapidly accelerate their use of remote court hearings. This article will explore the experiences of courts in Australia, England and Wales and Hong Kong in more broadly adopting this mode of judicial determination as part of a wider consideration as to whether Hong Kong should more permanently, post COVID-19, extend its use of remote hearings. Furthermore, this article will explore the implications which arise for advocacy-related training for Hong Kong students undertaking their Postgraduate Graduate Certificate in Laws (PCLL) programme, in order to ensure that such students are equipped for the ethical, technical and other skills-based challenges arising from these developments. In particular, this article will consider how existing PCLL benchmarks can be refined to facilitate this process.

Burningham, Sarah, ‘Reflections on COVID-19 And Criminal Law: How Does Judicial Doctrine Function in A Crisis?’ (2022) 59(3) Alberta Law Review 587–587
Abstract: This article reviews the impact of COVID-19 on judicial decision-making in certain areas of criminal law. Reviewing decisions from the areas of bail, sentencing, and trial within a reasonable time, the author analyzes how COVID-19 has been integrated into legal doctrine. The author concludes that doctrines are flexible enough to accommodate COVID-19 concerns. At the same time, doctrine is firmly entrenched, meaning the pandemic has not presented the opportunity for judges to rethink incarceration as some had hoped.

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, ‘Covid-19 Litigation: The Drivers of Institutional Responses to the Pandemic and the Role of Courts’ in COVID-19 Litigation: The Role of National and International Courts in Global Health Crises (forthcoming)
Abstract: The chapter concludes a book whose contributions are based on around 2400 decisions selected and available in an openly accessible Database and News Page (available at https://www.covid19litigation.org/). It provides a comparative analysis about the drivers of institutional responses to the COVID-19 pandemic and the role of courts in times of global health crisis. The comparative analysis is aimed to examine the different features of judicial review deployed by courts on anti-pandemic measures, its scope and intensity, in light of the different regulatory approaches taken by States. How courts have dealt with uncertainty and the extent to which scientific evidence has been considered a necessary basis for public choices are among the main aspects explored in the comparative analysis together with the different use of general principles by courts in judicial review. While examining the role of liability litigation and the space for immunity of the government in relation to the adoption of emergency measures, the chapter discusses the possible lessons learnt from courts and from their role as guardians of fundamental rights in the COVID-19 pandemic. From an institutional standpoint, the relevance of courts in emergency times not only contributes to ensuring compliance with the rule of law and fundamental rights, preserving the democratic allocation of powers, but it improves the quality of administrative decision-making especially when the interaction between administrations and courts is repeated. A comparative analysis of institutional responses to the pandemic crisis should therefore include judicial decisions and describe their evolution related to the availability of knowledge about the pandemic and the effects of restrictive measures.

Cafaggi, Fabrizio and Paola Iamiceli, ‘Global Pandemic and the Role of Courts’ (2021) 1(1–3) Legal Policy and Pandemics: The Journal of the Global Pandemic Network 159–180
Abstract: While policymakers, 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 emerged as a vital component of the institutional response to the challenges brought by the current pandemic. Not only have courts overseen statutory legislation and administrative acts to assess their conformity with constitutional norms and the rule of law, but, on a more substantive level, have also acted as custodians of fundamental rights, ensuring the right balance between conflicting ones. This article introduces a section of Legal Policy and Pandemics, the new Global Pandemic Network Journal, devoted to litigation with a view to addressing a possible need for inter-institutional cooperation and establish an ideal dialogue among courts and policymakers of different world regions facing similar issues in the context of the current pandemic. Moving from a comparative analysis of some of the decisions taken by courts in the first year of the pandemic, a research agenda is proposed, mainly looking at the impact of the health and economic crises upon the effective protection of fundamental rights and freedoms and their reciprocal balancing. Future contributions will feed this debate. These will provide comparative analyses across different world regions, and show to what extent some of the changes brought by the pandemic will remain as drivers for new balancing of rights.

Cafaggi, Fabrizio and Paola Iamiceli, ‘Uncertainty, Administrative Decision-Making and Judicial Review: The Courts’ Perspectives’ (2021) 12(4) European Journal of Risk Regulation 792–824 [pre-published version available on SSRN]
Abstract: The role of courts has been rather significant in the COVID-19 pandemic, weakening the theory that the judiciary is not equipped to contribute to governing crisis management. Although differences exist across countries, depending on institutional varieties and political contexts, the analysis shows that, even in times of emergency, courts can provide the necessary balance to the power shift towards the executives. Both action and inaction affecting fundamental rights have been scrutinised, taking into account fundamental freedoms and the rule of law. Deference to political decision-making has varied across jurisdictions and across the multiple phases of the health crisis. Differences in the balancing have emerged compared to during 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 has been at the core of judicial review to ensure transparency and procedural accountability. Proportionality and reasonableness with multiple conceptual variants across countries have been used to scrutinise the legality of 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.

Catalano, Michael and Aaron Chan, ‘Common Law Systems and COVID-19 Policy Response: Protective Public Health Policy in the United States, Canada, New Zealand, and Australia’ (Conference Paper, 2022 APSA Annual Meeting: Rethink, Restructure, and Reconnect)
Abstract: The Covid-19 pandemic affected the United States, Canada, New Zealand, and Australia in 2020 all pretty similarly. Knowing that that these four countries produce similar types of policies, and all follow the common law judicial system, it was necessary to analyze how the highest court of each land influenced political actors when responding to the first Covid-19 outbreak. More specifically, we determine the party affiliation of each Justice/judge, calculated the composition of the Courts and proceeded with determining how each of the four Courts ruled on protective public health policy responses. While this is new data during the beginning of the pandemic, we see similarities between 2020 Court opinions and come to conclude that more research on years following 2020 is significant to finding stronger correlations.

Chen, Lei, ‘Will Virtual Hearings Remain in Post-Pandemic International Arbitration?’ (2024) 37(3) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 829–849
Abstract: The pandemic has catalysed to hasten the wider use of virtual hearings in international arbitration. However, the promotion of virtual hearings in international commercial dispute resolution was more complex than commonly thought due to the highlighted concerns of cybersecurity and breach of confidentiality in arbitration. The worries against the wide use of virtual hearings cannot stand because technological innovations can largely improve and solve this. However, virtual arbitration hearings may not be common post-COVID times. Technology shapes how people behave, interact, grow, and develop in their relationships with others and wider communities. Yet greater immersion in the digital world undoubtedly creates new challenges and can adversely affect human-to-human interactions. There is very little scientific study on the psychological impacts of virtual hearings on arbitrators, witnesses and counsels. It is too early to assess its effectiveness from the user’s perspective until the much-needed scientific data is released. Virtual hearings are unlikely to replace in-person ones necessary for more complex and high-value disputes requiring greater interaction and personal connection. Strategically, international arbitration is a private initiative-orientated, flexible, and market-driven dispute resolution mechanism. The parties are best positioned to choose the hearing format after balancing off.

Chilton, Adam et al, ‘Political Ideology and Judicial Administration: Evidence from the COVID-19 Pandemic’ (SSRN Scholarly Paper ID 4124690, 11 May 2022)
Abstract: We investigate whether political ideology affects the administration of the judiciary in an area with strong political valiance: setting courthouse policies during the COVID-19 pandemic. We do so using novel data on judicial orders and a new identification strategy that leverages three features of the federal judiciary: many states have multiple judicial districts, many districts have courthouses in multiple cities, and randomness in the partisan affiliation of the chief judges from the rules governing the appointment of a chief in a district. Our research design isolates the effect of chief ideology using placebo tests that difference out unobserved district-level effects from the effects of the ideology of the actual chief judge. We find strong evidence that political ideology influenced management of the judiciary during the pandemic: Republican-appointed chief judges were less likely to require masks to be worn but more likely to suspend in-person trials.

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.

Clark, Janet, ‘Evaluation of Remote Hearings during the COVID 19 Pandemic’ (HM Court & Tribunal Service, Research Report, December 2021)
Extract from Summary: The COVID-19 pandemic resulted in a radical and swift transition to the widespread use of audio and video technology, to allow hearings to take place without all participants being present in court or tribunal buildings. At the start of the pandemic, HMCTS quickly increased the capacity to hold remote hearings. The VH service was not at a stage where it could be used at scale and Cloud Video Platform (CVP) was introduced as a contingency measure, alongside other platforms, to meet the unexpected demand. Under normal circumstances, these changes would have been developed, tested, and rolled out in phases, with a robust evaluation put in place. However, this was not possible due to the speed of the transition. Following an initial implementation review completed in August 2020 (see Annex A), a large-scale, in-depth evaluation was undertaken with some components being commissioned to IFF Research and other components being undertaken internally by HMCTS researchers. The evaluation aimed to understand who attended remote hearings, how public users, the judiciary, legal representatives, court and tribunal (HMCTS) staff, observers and support professionals (including intermediaries and interpreters) experienced remote hearings (before hearing, during hearing and shortly after the hearing) and the attitudes of these stakeholders towards remote hearings.

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.

Clopton, Zachary D, ‘Power and Politics in Original Jurisdiction’ [2023] University of Chicago Law Review (forthcoming)
Abstract: The original jurisdiction of the Supreme Court of the United States is a topic of scholarly interest but little practical significance. The original jurisdiction of state supreme courts is exactly the opposite—it is virtually absent from the scholarly literature but of significant practical importance. For example, dozens of cases related to elections and to Covid responses were filed in the original jurisdiction of state supreme courts in the last few years. Legislatures also recognize the importance of original jurisdiction, as state legislators have proposed dozens of recent bills to change the scope of original jurisdiction. This Article offers a comprehensive review of the original jurisdiction of state supreme courts. The paper and its appendix include a catalog of the original jurisdiction law of all 50 states; a survey of scores of recent original actions related to elections and Covid; and a review of relevant legislation from the last decade. This Article also analyzes the distinct functional and institutional considerations relevant to state original jurisdiction. Functionally, original jurisdiction limits opportunities for appellate review, shifts factfinding responsibility, and has the potential to permit quicker resolution. Original jurisdiction also has the capacity to streamline litigation, presenting cleaner questions to the high court, without the frictions of lower-court litigation. Institutionally, original jurisdiction distributes agenda-setting power among courts, parties, and legislatures. Original jurisdiction takes power from lower courts, depriving them of any opportunity to shape the course of litigation. Meanwhile, original jurisdiction often gives power to the state supreme court, though original jurisdiction also may make it more difficult for courts to engage in ‘avoidance’ maneuvers that sometimes serve their interests. Original jurisdiction also interacts with party control, as it affects the ability of parties to shop for friendly forums. Aware of these effects, legislatures can use original jurisdiction to achieve their preferred outcomes, for example by channeling cases to ideologically friendly high courts—and away from ideologically hostile lower courts that might make mischief along the way. This analysis has both theoretical and practical relevance. Theoretically, the capacity of decisions about original jurisdiction to advantage some political parties and causes over others shows its family resemblance to the more often studied phenomena of court curbing and court packing. Practically, while original jurisdiction is often designed to serve neutral values, it has the capacity to serve partisan ends—and given our political polarization, we should expect partisanship to play an increasing role in these seemingly neutral choices.

Colbert, Doug and Colin Starger, ‘A Butterfly in COVID: Structural Racism and Baltimore’s Pretrial Legal System’ (2022) 82(1) Maryland Law Review 1–54
Abstract: Summer of 2020 represented a potentially pivotal moment in the movements against mass incarceration and for racial justice. The authors commenced a study of Baltimore’s pretrial legal system just as the convergence of the COVID-19 pandemic and urgent cries of Black Lives Matter appeared to present a once-in-a-generation opportunity for meaningful decarceration. Over forty-four weekdays in June and July, the team observed bail review hearings in 509 cases and collected extensive data from the arguments and recommendations offered by the pretrial agency and prosecuting and defense attorneys. Unfortunately, the hoped-for reform failed to materialize as judges held nearly 62% of all defendants ‘without bail,’ sending detainees back to jail indefinitely despite the pandemic and despite their legal presumption of innocence. Even worse, stark racial inequalities persisted. This Article argues that the failed reform of Baltimore’s pretrial legal system represents a larger triumph of structural racism and that nothing short of radical transformation of the body politic will end such systemic racism. After describing the original empirical study, presenting a critical history of pretrial justice struggles in Maryland, and relating representative narratives of detainee experiences, the Article employs a novel analysis that reveals a basic pattern of structural injustice replicating itself, like DNA in cells. When plotting the addresses of study defendants onto maps of Baltimore, the unmistakable pattern of a butterfly emerges. This evokes the vital work of Dr. Lawrence Brown who has famously observed that ‘hypersegregation’ in Baltimore looks like a Black butterfly. The Black butterfly represents the physical manifestation of systemic racism; it reveals a pattern of inequality that cuts across economic, political, and other sociocultural systems.

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.

Coric, Vesna and Ana Knezevic Bojovic, ‘European Court of Human Rights and COVID-19: What Are Standards for Health Emergencies?’ in New Legal Reality: Challenges and Perspectives. II (University of Latvia Press, 2022) 380–398
Abstract: The European Court of Human Rights is currently facing a challenge in dealing with numerous applications linked to the COVID-19 pandemic and the related restrictions aiming to protect human life and health, which, at the same time, limit some of the most important human rights and fundamental freedoms. Legal scholars have voiced different views as to the complexity of this task, invoking the previous case law on infectious diseases and on military emergencies to infer standards that would be transferrable to COVID-19-related cases, or the margin of appreciation of domestic authorities pertaining to health care policy as the approaches ECtHR could take in this respect. The present paper argues that the ECtHR would be well advised to resort to a more systemic integrated approach, which implies the need to consider obligations emanating from other health-related international instruments in setting the standards against which it will assess the limitations of human rights during the COVID-19 outbreak. Hence, the authors reflect on the potential contribution of the integrated approach to the proper response of the ECtHR in times of the pandemic. The review shows that both the ECtHR’s caselaw on the integrated approach, as well as its theoretical foundation leave enough room for a wide application by the ECtHR of the right to health, and likewise – soft law standards emanating from the various public health-related instruments, when adjudicating cases dealing with the alleged violations of human rights committed during the COVID-19 outbreak. Subsequently, the paper critically assesses to what extent the ECtHR has taken into account the right to health-related instruments in its previous case law on infectious diseases. This is followed by a review of the existing, albeit sparse, jurisprudence of the ECtHR in its ongoing litigations pertaining to restrictions provoked by COVID-19 pandemic, viewing them also in the context of the integrated approach. The analysis shows that ECtHR did not systemically utilize the integrated approach when addressing the right to health, even though it did seem to acknowledge its potential. The authors then go on to scrutinize the relevant health emergency standards stemming from international documents and to offer them as a specific guidance to the ECtHR regarding the scope of the right to health which will help in framing the analysis and debate about how the right to health is guaranteed in the context of COVID-19. Consequently, building on the proposed integrity approach, examined theoretical approaches, and standards on the right to health acknowledged in relevant supranational and international instruments, the authors formulate guidance on the path to be taken by the ECtHR.

Costas, Popotas, ‘COVID-19 and the Courts. The Case of the CJEU’ (2020) 3(7) Issue 2-3/2020 160–171
Abstract: The article describes the generally positive experience of Court of Justice of the European Union in managing the Covid-19 crisis. Before the outbreak of the Covid-19 crisis the Court had established an effective structure to cope with risks and issues related to pandemics. It benefited from an extensive migration to a modern computer operating system and the replacement of traditional desktop computers by portable devices capable of remotely connecting to the Court’s network. Appropriate teleworking and extensive dematerialisation and simplification of standard administrative procedures took place and proved their effectiveness. The disruptive dimensions of COVID-19 pandemic forced the CJEU to accelerate transformations – not only digital but managerial and judicial processes The author analyses several phases of organising the functioning of the Court during the pandemic and comes to the conclusion that that the Court proved to be well prepared to tackle the issues raised by the COVID-19 pandemic. However, the quest of the future organisation will also have to do more with smart management and the new modes of working.

Currie, Scott, ‘What Is the Court to Do with All of This Data? Empirical Evidence, COVID-19 and the Law’ (2021) 31(1) Journal of Judicial Administration 26–41
Abstract: The COVID-19 pandemic continues to test Commonwealth legal systems around the globe. It is a crisis that requires empirically grounded solutions. The cases born from governments’ pandemic measures emphasise the courts’ general reticence and shortcomings when issues involve technical considerations. These include: a lack of structure for considering empirical matters; limited avenues for empirical engagement beyond expert witnesses; narrow use of judicial notice; and continued reluctance to develop competencies in the natural or social sciences. This article considers how COVID-19-related cases illustrate these concerns, as well as prior cases outside a ‘crisis’ context. Solutions are also proposed.

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.

Dauster, Manfred, ‘Criminal Proceedings in Times of Pandemic’ in New Legal Reality: Challenges and Perspectives. II (University of Latvia Press, 2022) 248–271
Jurisdiction: Germany
Abstract: COVID-19 caught humanity off guard at the turn of 2019/2020. Even when the Chinese government sealed off Wuhan, a city of millions, for weeks to contain the epidemic, no one in other parts of the world had any idea of what specifically was heading for the countries. The ignorant and belittling public statements and tweets of the former US president are still fresh in everyone’s memory. Only when the Italian army carried the coffins with the COVID-19 victims in northern Italy, the gravesites spread in the Bergamo region, as well as the intensive care beds filled in the overcrowded hospitals, the countries of the European Union and other parts of the world realised how serious the situation threatened to become. Together with the World Health Organisation (WHO), the terms changed to pandemic. Much of the pandemic evoked reminiscences originating in the Black Death raging between 1346 and 1353 or in the Spanish flu after the First World War. Meanwhile, life went on. The administration of justice in criminal cases could not and should not come to a standstill. Emergency measures, such as those that began to emerge in February 2020, are always the hour of the executive. In their efforts to stop the spread of the virus, in Germany, governments particularly reflected on criminal proceedings. Neither criminal procedural law nor the courts and court administrations applying this procedural law were adequately prepared for the challenges. Deadlines threatened to expire, access to court buildings and halls had to be restricted to reduce the risk of infection, public hearings represented a potential source of infection for both the parties to the proceedings and the public, virtual criminal hearings via conference calls had not yet been tested in civil proceedings, but were legally possible, but not so in criminal cases. The taking of evidence in criminal cases in Germany is governed by the rules of strict evidence and is largely not at the disposal of the parties to the proceedings. Especially in criminal cases, fundamental and human rights guarantees serve to protect the accused, but also the victims and witnesses. Executive measures of pandemic containment might impact these guarantees. Here, an attempt will be made to discuss at some neuralgic points how Germany has attempted to balance the resulting contradictory interests in the conflict between pandemic control and constitutional requirements for criminal court proceedings.

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.

Deepali Rani, Sahoo, ‘Legal Dimensions on ADR Mechanisms and Using of Technology for Solving Marital Dispute: Special Reference to COVID-19’ (2023) 10(1) Splint International Journal of Professionals 71–80
Abstract: With roots in the Neolithic era, the Indian legal system is among the oldest in the entire globe. It’s a system that’s always changing, adjusting, and settling in to meet societal demands. The court, which is one of the foundations of Indian democracy, has consistently taken the side of the wronged parties to uphold their rights and combat injustices, inequity, brutality, and exploitation. However, the system has recently been plagued by a number of issues. As Justice Ramana recently noted, one of the main obstacles to upholding the rule of law and defending human rights is the formal legal system’s incapacity to provide everyone with prompt and cheap justice. The main objective of the study is to find out the relationship between ADR mechanisms and marital relations with family disputes. Secondly the impact of ADR mechanism by using technology for proper settlement of the dispute. Thirdly, the legal dimensions of using technology are linked with the ADR mechanism laid down by the court of law.

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.

Dissanayake, Dinushika, ‘Justice after COVID 19: An Analysis of the Challenges Faced by the Formal Justice Sector in Sri Lanka during a Global Pandemic’ (2022) 23(2) Asia Pacific Journal on Human Rights and the Law 156–205
Abstract: The formal justice sector in Sri Lanka is almost entirely reliant on physical interactions within the courtroom. Sri Lanka has committed to providing access to justice for all under both domestic and international law. Unfortunately, substantive access to justice for all continues to elude the marginalised. The global pandemic which emerged in January 2020 has thrown a further challenge on this already burdened system. The litigants, lawyers and judges who had relied on an already flawed system are now further physically distanced from the formal justice system. This means that these actors must now seek to ensure that access to justice is restored, albeit without full physical access to courtrooms. This article examines how Covid-19 challenged the dispensation of substantive justice in the formal justice system in order to suggest ways to mitigate these challenges. It discusses the challenges faced by lawyers and litigants during the period 14 March to 15 November 2020. This includes how the physical aspects of dispensation of the day-to-day caseload were resolved, and the strategies that were practised by lawyers, judges and litigants to circumvent these obstacles and challenges. Drawing on postcolonial feminist critique, information gathered through both primary data (gathering of qualitative and quantitative primary data) and secondary data (desk review of laws, regulations and rules), this article attempts to obtain insights into what challenges were experienced by marginalised communities and how these challenges were mitigated by the justice sector. The author applies the strategies used by persons who engaged with courtrooms in the midst of Covid-19 to the theoretical definitions of what justice should look like in an equal society. The article arrives at an understanding of the dispensation of justice during the Covid-19 pandemic.

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.

Donner, Ted A, ‘Civil Jury Trials by Zoom: We’re All Plugged into One World Now’ (2021) 51(1) Southwestern Law Review 71–90
Abstract: In the spring of 2020, the question of whether any given civil dispute should proceed to trial or be continued for an indeterminate period of time was commonplace in the United States. In most cases, the answer was to order a continuance. The pandemic resulted in courthouse shutdowns throughout the country, and the constitutional requirement for ‘speedy trials,’ the one reason a judge might choose to forge ahead despite the health risks, applied to criminal, not civil cases.1 So, civil cases in courts throughout the United States ended up on the back burner, like they do whenever the courts get too busy to keep up with their ‘speedy trial’ obligations2 and as was certainly bound to happen when the spread of COVID-19 escalated into a worldwide pandemic. The coronavirus pandemic presented a remarkable and unprecedented scenario for most court systems, forcing everyone to stay home, closing the doors to the courthouse altogether, and leaving more than a few chief judges unsure of what steps to take next.3 Some cases could be placed on hold indefinitely, to be sure, but others, like criminal cases that were ready for trial, civil cases involving witnesses whose health was infirm, and cases involving injunctive relief, involved a degree of urgency that could not just be ignored and meant more in the way of problems, particularly in the early days of the pandemic.

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.

Draper, Brandon Marc, ‘Prosecutorial Dilemmas Amid the Pandemic and Online Jury Trials’ (2021) 51(1) Southwestern Law Review 133–141
Abstract: This Essay argues that prosecutors should exercise caution when agreeing to conduct a trial by video conference. While such trials may be necessary to ensure that the criminal justice system continues to function during the pandemic, they present several issues that may otherwise hinder a prosecutor’s ability to seek justice. Such issues include limited courtroom technology, the potential for remote juries to have a greater likelihood of rendering a not guilty verdict or giving a more lenient sentence, and the potential that such proceedings may result in per se reversible error.

Draper, Brandon, ‘Revenge of the Sixth: The Constitutional Reckoning of Pandemic Justice’ (2021) 105(2) Marquette Law Review 205
Abstract: The Sixth Amendment’s criminal jury right is integral to the United States criminal justice system. While this right is also implicated by the Due Process Clause, Equal Protection Clause, and several federal and state statutes, criminal jury trial rates have been declining for decades, down from approximately 20% to 2% between 1988 to 2018. This dramatic drop in the rate of criminal jury trials is an effective measure of the decreased access to fair and constitutional criminal 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.

Eltis, Karen, ‘Judicial Independence and the Corporate “Custodians of the Internet”: A Call to Scrutinize Reliance on Private Platforms as “Essential Infrastructure”’ (EUI Department of Law Research Paper, forthcoming, 23 May 2021)
Abstract: Digital technologies and their corollary misuse are briskly transforming communication generally and altering ‘how law is disseminated’. The eco-system in which courts operate has accordingly shifted, a transition abruptly intensified by the pandemic, as justice precipitously migrates to the ease of private platforms. This de facto ‘marriage of convenience’ may best be characterized as an unstructured partnership, prematurely born out of immediate necessity. Unquestionably, the COVID-19 pandemic precipitated and spurred judicial digitization ‘on a scale and at a pace that our court system would never have contemplated just a few months ago’, visibly culminating in a number of Supreme Courts worldwide conducting proceedings on Zoom. In effect, a ˘new normalˇ defined by a general dependence on ‘a few dominant internet intermediaries act[ing] as gatekeepers in the curation, distribution and monetization of information’, is ripe for rigorous scrutiny. For a great deal is at stake when intermediaries monetize litigants’ data, profiling and commercializing the public sphere˛ more generally. This is exponentially preoccupying, few would query, in the judicial context. For we posit that dependence of this ilk may disagree with traditional precepts of judicial independence, which uncompromisingly proscribe reliance on external control mechanisms outside the judiciary’s purview (or the appearance of such reliance). Mindful of this gargantuan communications reallocation, the following submits that judicial independence must be re-examined in the context of platform-dependent modern communications in the digital realm. What previously struck most as incredulous let alone unfeasible is now commonplace in justice systems across jurisdictions. Whereas innovation tailored to palliate the disquieting backlog that has haunted courts and tribunals for years is best greeted with openness if not enthusiasm, recognizing the necessity of digitizing, this article endeavors to shed light on the perils to judicial independence inherent to unbridled dependence on foreign commercial platforms. Whereas these concerns seem largely obscured by both the urgency and convenience of hastily transitioning online during the persisting pandemic, the long-term impact of this partnership is ripe for sober scrutiny. Indeed, underscoring the risk of compromising the foundational principle of judicial independence in the age of default platform infrastructure, the following calls for mechanisms tailored to ensure that intermediary partnerships are structured, framed by a mindful benchmarking exercise rather than anachronistically ad hoc.

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.

Epps Jr., Willie J and Cailynn D Hayter, ‘Remote Proceedings During a Pandemic’ (2021) 60(3) Judges’ Journal 10–14
Extract from Introduction: When the coronavirus (COVID-19) outbreak surged in the United States in March 2020 and required courthouses across the country to close their doors, federal and state court practices changed almost overnight. Rather than allow the criminal justice system to screech to a halt, courts embraced -- and sometimes mandated -- the use of video or telephone conferencing technologies to keep cases moving forward. Defendants and counsel, too, have welcomed the use of video teleconferencing technologies to ensure cases are expeditiously heard. While video and telephone conferencing in the midst of a pandemic offer a means of resolving matters that may otherwise be indefinitely delayed, this technology carries potential disadvantages when judges are not informed of its limitations. It is important, therefore, to understand the key role video teleconferencing plays in our justice system amid a pandemic, while staying attuned to the pitfalls it could create.

Erez-Navot, Donna, ‘Reimagining Access to Justice: Should We Shift to Virtual Mediation Programs Beyond the COVID-19 Pandemic, Especially for Small Claims’ (Cardozo Legal Studies Research Paper No 678, 31 March 2022)
Abstract: Since March 2020, and the start of the COVID-19 pandemic, courts around the country have grappled with the dramatic changes in how they function. Most courts in the United States were not prepared for such a sudden and extreme shift and many were stalled for months without any progress on the filings within their jurisdiction. Some courts were more successful if they had previously integrated automated systems before the pandemic, such as e-filing, video hearings, and other technologically supported protocols. Jurisdictions that already had Online Dispute Resolution (ODR) and video conferencing mediation and arbitration in place were able to continue to function. Other jurisdictions, particularly those that were ill-prepared, were stalled once the pandemic began. New York City’s Small Claims Court was completely halted in the beginning of March 2020. But in August 2020, under an Administrative Order by New York City Court Administrative Judge Anthony Cannataro, the courts initiated a new Presumptive Virtual Mediation Program in New York City Small Claims. The courts partnered with various law schools, bar associations, and community dispute resolution centers (CDRCs), and immediately began mediating small claims cases on virtual platforms.The umbrella term ODR is a broad term that includes all uses of information and communications technologies to help parties resolve their disputes. It includes the online replication of ADR processes, including mediation, arbitration, or other ADR processes conducted wholly or primarily online. Some examples include: (1) cases assigned to a court mediator, who facilitates interaction between parties via asynchronous text-based exchanges through a dedicated court-provided system; (2) a judge reviewing court papers from litigants and making a decision based on the papers; or (3) video conferencing mediation, where mediators synchronously work with parties live on Zoom to facilitate a conversation, as seen in the Presumptive Virtual Mediation Program in New York City Small Claims.

Eyongndi, David Tarh-Akong and Faith N Opara, ‘Arbitrating During and Post Covid-19: Nigeria and the Imperativeness of Adopting a Legal Framework on Third-Party Funding: Lessons from Selected Jurisdictions’ (2022) 6(1) Strathmore Law Journal 181–211
Abstract: The advent of Covid-19 has led to the inability of parties fulfilling their commercial and contractual obligations. This inability has led to disputes and has negatively affected the financial fortune of many persons and businesses so that they may not afford or solely bear the cost of funding arbitration. To ensure that parties’ intention to arbitrate their disputes is not frustrated, Third-party funding (TPF), an acceptable practice in jurisdictions such as the United Kingdom (UK), Singapore, and Hong Kong, is a possible solution. Unfortunately, TPF is unknown to Nigerian law as it offends the common law doctrines of champerty and maintenance. This article, through a doctrinal methodology, examines the legislative effort towards institutionalising TPF in Nigeria and the ethical concerns advanced against it. The article argues that these concerns are more imaginary than real. Hence, they ought not to deter the adoption of TPF in Nigeria for intra- and post-Covid-19 funding of arbitration. It discusses the practice of TPF in the UK, Hong Kong, Singapore, South Africa, Ghana, and France in which these ethical concerns have been dealt with and draws lessons for Nigeria.

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?’

Feigenson, Neal, ‘Adjudication on Zoom and Beyond: Human Interaction in Virtual Courts’ (2023) 62(3) Washburn Law Journal 461–505
Abstract: The sudden arrival of COVID-19 prompted a natural experiment of unprecedented proportions in legal systems around the world: How would courtroom justice differ when conducted via videoconferencing instead of face-to-face? There had been extensive use of videoconferencing before COVID, but almost entirely to enable a single person located elsewhere—a prisoner being arraigned, a person seeking asylum, a vulnerable child witness—to join proceedings in which everyone else was physically present in the courtroom. Now each participant was remote from everyone else; their only common space was the interface on their laptop or other screens. After nearly three years and millions of proceedings, we have some idea of how things have been working out. Judges, lawyers, academics, and journalists have cataloged the pros and cons of our current virtual courts on Zoom, Teams, Webex, or other comparable platforms. The article addresses how proceedings in virtual courtrooms differ from traditional ones in terms of the human interactions that comprise them, and what that may mean for both outcomes and participants’ experiences of justice.

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.

Ferguson, Andrew Guthrie, ‘Courts Without Court’ (2022) 75(5) Vanderbilt Law Review 1461–1522
Abstract: What role does the physical courthouse play in the administration of criminal justice? This Article uses recent experiments with virtual courts to reimagine a future without criminal courthouses at the center. The key insight of this Article is to reveal how integral physical courts are to carceral control, and how the rise of virtual courts helps to decenter power away from judges. This Article examines the impacts of online courts on defendants, lawyers, judges, witnesses, victims, and courthouse officials and offers a framework for a better and less court-centered future. By studying post-COVID 19 disruptions around traditional conceptions of place, time, equality, accountability, and trial practice, this Article identifies how legal power can be shifted away from the courts and into the community.

Fine, Anna, Katie M Snider and Monica K Miller, ‘Testing the Model of Judicial Stress Using a COVID-Era Survey of U.S. Federal Court Personnel’ (2024) 31(3) Psychiatry, Psychology and Law 381–400
Abstract: Non-judicial court personnel, critical to a well-functioning justice system, experience overloaded dockets and the responsibility of making significant decisions, contributing to cognitive stress. Understanding and mitigating their stress is essential for maintaining judicial efficiency. We adapted Miller and Richardson’s Model of Judicial Stress to assess stress in a broad sample of non-judicial court personnel (n = 122), including judges, lawyers, and administrative staff. Participants responded to surveys about their stress levels, job performance, and health; they also completed cognitive performance tasks. The findings indicated that stress negatively affected employee outcomes including cognitive performance, job performance, job satisfaction, and health outcomes. Notably, perceived job performance had declined compared to the previous year, suggesting that the pandemic was an additional significant stressor. Based on the data, the Model of Judicial Stress is also applicable to other types of courtroom personnel, underlining its relevance across various judicial roles.

Finkle, Victoria, ‘How Compassionate?: Political Appointments & District Court Judge Responses to Compassionate Release During COVID-19’ (2022) 110(6) The Georgetown Law Journal 1495–1517
Abstract: The Trump Administration sought to transform the judiciary by appointing numerous conservative judges to the bench, building on a Republican project that is decades in the making. This Note examines how judges are deciding compassionate release motions in the wake of the COVID-19 pandemic, which has proven particularly deadly inside the nation’s prisons. This Note explores how judges appointed by Republicans and Democrats have ruled in more than 6,000 federal compassionate release cases in the first ten months of the pandemic, finding that judges appointed by Democrats are granting compassionate release at far higher rates than their Republican counterparts, with Trump judges granting among the fewest requests. The First Step Act of 2018 gave incarcerated individuals the right to file a motion for early release in court in light of ‘extraordinary and compelling’ circumstances, and requests for release have skyrocketed since the outbreak of the virus. The unique conditions of the pandemic, high levels of virus transmission in prisons, and the highly discretionary nature of the compassionate release statute together offer a natural experiment for considering how judicial ideology impacts people’s lives. The results of this analysis underscore the importance of the fight over control of the judiciary going forward.

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.

Frederick, Jeffrey T, ‘Online Jury Selection: New Tools for Jury Trials’ (2021) 51(1) Southwestern Law Review 40–62
Abstract: In responding to the COVID-19 pandemic, courts had three general options for jury trials: (a) to move forward with in-person jury trials and attempt to employ appropriate COVID-19 safety precautions if such inperson gatherings were permitted in the jurisdiction; (b) to delay all jury trials until relevant in-person gatherings were permitted and trials could be conducted in a safe manner; and (c) to conduct jury trials online, in whole (all proceeding are virtual) or in part (i.e., “hybrid” jury trials involving online or mixed jury selection and in-person trial). This Essay focuses on conducting virtual jury trials, specifically online jury selection. This can be split up into the pretrial component and the trial component. Part II discusses the former and delves into online supplemental juror questionnaires by explaining what they entail, what concerns may arise from using these questionnaires, and what benefits come from its use. As Part III describes, the trial component includes both virtual voir dire and jury selection. The two methods of selecting jurors, the struck method and the sequential method, are discussed in the online context. Moreover, Part III delineates several tips for effective virtual jury selection logistics. Part IV compares online jury selection with its in-person counterpart, then addresses various issues involved in online jury selection. Next, Part IV presents the benefits of this process. Finally, Part V concludes that online jury selection will likely remain an option for the foreseeable future.

Fruin, Hon Richard, ‘Outreach Programs Thrive in Virtual Settings During COVID-19’ (2021) 60(3) Judges’ Journal 29–35
Abstract: The article reports that COVID-19 pandemic restrictions required adaption, particularly in public forums. The article examines whether judicial participation in community outreach activities should be considered as an official judicial function to promote public understanding of and confidence in the administration of justice.

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.

Gaines, Brian J et al, ‘Eviction Expectations in the Aftermath of the Pandemic Moratoria’ (SSRN Scholarly Paper No 4669801, 19 December 2023)
Abstract: The COVID-19 pandemic disrupted all aspects of normal life, including legal proceedings. As courts all over the United States shifted from in-person operations to hastily designed virtual proceedings, much changed. Research on how experiences with the justice system and case outcomes were altered by this disruption is early and ongoing, but some results are emerging, suggesting that online hearings had both pros and cons. Indeed, such work is not merely backwardlooking and of mainly historical interest, because many jurisdictions, having seen more gains than losses, are now making online court proceedings permanent for some matters. Evictions are a special case, because, during the pandemic, eviction hearings, rather than being shifted online, were mostly suspended. National, state-level, and even local moratoria prevented evictions for non-payment of rent—the basis of most evictions—and so even though most courts accepted eviction filings by landlords, hearings were largely put on hold. At the federal level, in March 2020, the CARES Act imposed a moratorium for evictions from covered properties (those whose owners received federal funding or had federal-government-backed mortgages) through July 2020. The Centers for Disease Control issued a moratorium for non-payment of rent in September of 2020, later extended, until the United States Supreme Court, in August 2021, lifted a further extension by the Biden Administration.

Gajda-Roszczynialska, Katarzyna (ed), Impact of the COVID-19 Pandemic on Justice Systems: Reconstruction or Erosion of Justice Systems: Case Study and Suggested Solution (V&R Unipress, 2023) [OPEN ACCESS E-BOOK]
Book summary: How have the arrangements in European countries regarding the functioning of justice changed in the period of the COVID-19 pandemic? Will the solutions implemented in various countries in the context of the COVID-19 pandemic last and find their place in the legal systems of these countries for a longer period of time? The contributors analyse this in four thematic blocks: The first refers to the impact of COVID-19 on the administration and technical functioning of the judiciary, including international courts. The second part focuses on the impact of COVID-19 on the model of civil procedure, including the effects on general and structural principles such as the principle of openness, writing and oral proceedings, the principle of consistency of panels of judges as well as digitalization. The third refers to the impact of COVID-19 on criminal proceedings. And the last one deals with the impact of COVID-19 on the administrative proceedings.
Contents:
Part I: The administration of justice in national and supranational courts in the era of the Covid-19 pandemic and post pandemic era
  • José Igreja Matos, ‘The Covid-19 Pandemic and the independence of judges’ 13
  • Duro Sessa, ‘The Covid-19 pandemic and the rule of law: the lesson to be learned’ 25
  • Krystian Markiewicz, ‘The role of courts in enforcing the right to fair trial in post-pandemic reality’ 37
  • Piotr Hofmański, ‘The Covid-19 pandemic and the realities of the International Criminal Court’ 63
  • Michał Balcerzak, ‘The Covid-19 Pandemic and Proceedings Before the European Court of Human Rights’ 69
  • Marcin Dziurda and Paweł Grzegorczyk, ‘The influence of Covid-19 pandemic on the polish civil proceedings from the perspective of the Supreme Court’ 85
  • Urszula Żółtak and Bogdan Jędrys, ‘Common courts and pandemic Covid-19: the lesson that should be learned from practice’ 115
  • Grzegorz Borkowski, ‘Performance evaluation of judges after Covid-19 pandemic’ 137
Part II: Impact of the Covid-19 pandemic on the civil proceedings
  • Katarzyna Gajda-Roszczynialska, ‘Reconstruction or erosion of justice systems as a result of Covid-19 pandemic – conclusions for the legal systems’ 153
  • Anna Nylund, ‘Comparative insight on courts and court proceedings during the pandemic’ 177
  • Fernando Gascón Inchausti, ‘The impact of Covid-19 pandemic on Spanish civil justice: remote hearings as a new tool for the effectiveness of the system’ 199
  • Vigita Vebraite and Goda Strikaite-Latusinskaja, ‘Digitalization of justice in Lithuania’ 223
  • Iryna Izarova, ‘Digitalization of justice in Ukraine: some remarks on the main goal’ 235
  • Andrzej Olas, ‘Looking beyond Covid-19 pandemic: does Artificial Intelligence have a role to play in preparing the justice system for the next global pandemic or similar hardship? The European perspective’ 249
  • C.H. van Rhee, ‘Covid-19 and the Role of Orality and Writing in Civil Litigation’ 277
  • Piotr Rylski, ‘Organisation of the Civil Proceedings in Poland against the Pandemic’ 289
  • Anna Machnikowska, ‘The principle of open justice during the Covid-19 pandemic – the polish Experience’ 301
  • Barbara Cis, ‘Modification of the composition of the court in civil proceedings in the time of the Covid-19 pandemic – an outline of doubts in the context of the principle of the right to a fair trial and the participation of citizens in the administration of justice’ 317
  • Dragos, Calin, ‘The right to a competent court, composition of courts in civil cases, principle of stability of panels during Covid-19 pandemic: The case of Romania’ 341
  • Andrzej Torbus, ‘Assessment of the regulations adopted during the SARS-CoV-2 virus pandemic and their impact on the currently applicable insolvency law’ 349
  • Robert Kulski, ‘Transformation of Polish Enforcement Proceedings in Civil Cases during Covid-19 Pandemic’ 367
  • Jakub Płaziuk, ‘The Covid-19 pandemic and alternative dispute resolution’ 383
Part III: Impact of the Covid-19 pandemic on the criminal proceedings
  • Dobrosława Szumiło-Kulczycka, ‘Covid-19 Pandemic and Criminal Proceedings in Poland’ 405
  • Roland Kempfle, ‘The Covid-19 Pandemic and Criminal Proceedings in Germany’ 423
  • Oksana Kaplina and Sergiy Kravtsov, ‘Proceedings in the era of Covid-19 pandemic: simplify as much as possible, adjust the needs of time or “fiat justita et pereat mundus”’ 433
Part IV: Impact of Covid-19 on administrative procedure
  • Michał Jabłon´ski and Andrzej Kraczkowski, ‘The Covid-19 pandemic and the exercise of the right to a fair trial in view of the right of a party to present case on the court hearing – differences in the approach of courts in civil and judicial-administrative matters 453
Garland, Norman M, ‘The Constitutionality of Remote Trials’ (2021) 51(1) Southwestern Law Review 107–115
Abstract: ‘When the American people chose to enshrine that right in the Constitution, they weren’t suggesting fruitful topics for future cost-benefit analyses. They were seeking to ensure that their children’s children would enjoy the same hard-won liberty they enjoyed.’ Justice Gorsuch emphasized the importance of a unanimous verdict for a criminal proceeding when delivering his opinion in Ramos v. Louisiana. Though the case dealt with Louisiana’s criminal courts adhering to a unanimous jury verdict as implied within the Sixth Amendment, Justice Gorsuch’s reasoning could apply to a dilemma that many states are facing today: the constitutionality of conducting remote trials. Due to COVID-19 and the pandemic, many trials have either been delayed or conducted remotely. Parties have argued that the inability to cross-examine a witness face-to-face was a violation of their Confrontation Clause rights as written in the Sixth Amendment. Courts that have conducted remote trials have reasoned that it is in the states’ public policy interest to protect people from contracting the COVID-19 virus by not appearing in court. But the pervasive question is whether the Confrontation Clause can yield to such a public policy interest.

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.

George, Rob and Rob Marsh, ‘Do We Need Physical Family Courts?’ (2024) 46(1) Journal of Social Welfare and Family Law 59–81
Abstract: The family court responded to the COVID-19 pandemic by rapidly transitioning to remote hearings. Almost four years later, remote hearings remain common, although the clear direction of travel, especially for children and domestic abuse injunction cases, has been back towards everyone attending hearings face-to-face. In this article, we explore what might be lost when family court hearings take place remotely, and, more fundamentally, whether we really need physical family courts. We suggest that the family court is ‘multifunctional’: as well as having an important role in adjudication, it is a physical space in which family members can try to resolve their family law dispute through reflection, negotiation and conciliation, often with the moral support of a legal team, and backed by the judge’s authority. We consider guidance issued during the pandemic and show that the non-adjudicative functions of the family court were initially overlooked by the senior judiciary. Finally, we explore legal professionals’ experiences of remote family justice to assess how well the family court can perform its various functions remotely. We conclude that physical family courts are an essential part of the family justice system and, for those family disputes that require court involvement, they provide significant benefits.

Getnet, Asnakech, ‘Pandemic Restrictions in Ethiopia: Impact on Family Law Cases in Amhara Regional State Courts’ (2022) Family Court Review (advance article, published 9 March 2022)
Abstract: This article discusses the impact of pandemic restrictions on the family court system in Ethiopia. As lack of technological infrastructure made shifting to online services impossible, court services remained in-person. Public health measures required a drastic reduction in case hearings in order to allow social distancing. Both federal and regional state courts were partially closed from early March 2020 to end of September 2020 and only entertained cases of ‘urgent’ nature that affected life, liberty, and public safety. The article focuses on strategies adopted by family courts in Amhara Regional State with respect to its impacts on litigating parties in such courts. It argues partial closure of court services disrupted access to justice in family law cases and increased vulnerability of women and children. This article proposes alternative strategies other than partial closure of court services.

Gluck, Abbe R and Jacob Hutt, ‘Epilogue: COVID-19 in the Courts’ in Glenn I Cohen et al (eds), COVID-19 and the Law: Disruption, Impact and Legacy (Cambridge University Press, 2023) 391–406
Abstract: Most accounts of the law’s intersection with a major public policy issue have litigation at least in the background. COVID-19 is no exception. Many chapters in this book detail policy areas – from prison health, to access to reproductive care, to worker safety, and more – in which litigation over aspects of the pandemic response played a major role. Other areas that were prominent in courthouses, although not as detailed in the foregoing pages, include election law, free exercise of religion, and the defining of services, including gun shops, as essential or not for purposes of preventing or ensuring access during the emergency. For many of these fields, the litigation shined a salutary light on systemic problems that preexisted COVID-19 but that COVID-19 made impossible to continue to ignore. Yet the legacy of the COVID-19 litigation transcends its already significant impact on the many specific areas that COVID-19 touched. Most broadly, the arc of COVID-19 litigation is a story about the relationship among individual rights, courts, and governments. COVID-19 brought with it an initial period of judicial deference to expert leaders who curtailed individual liberties to deal with an unprecedented emergency. But later, the pandemic litigation ushered in a decline in deference that not only reversed many government actions, but also has outlasted and ties into mounting conversative opposition to the modern regulatory state. Courts grappled with deference both to state governments, and the temporary restrictions they imposed on individual liberty, and to major federal executive actions, taken under broad – but sometimes antiquated – statutory authorities.

Godfrey, Barry, Jane C Richardson and Sandra Walklate, ‘The Crisis in the Courts: Before and beyond COVID’ (2022) 62(4) British Journal of Criminology 1036–1053
Abstract: One year after the first COVID lockdown the backlog at the Magistrates’ and Crown Courts together totalled approximately half a million cases. This article reports on the impact of court delays on domestic abuse victims using data from the ESRC-funded ‘Shadow Pandemic’ project. Using this data as illustrative, the paper goes on to discuss the causes of delays in all criminal cases, challenging the assertion that COVID caused the backlog. Instead, the paper contends that austerity measures have been the underlying cause with COVID merely extending the scale of the crisis. The paper then questions whether post-COVID recovery plans are realistic, particularly in relation to any increase in remote hearings and out of court disposals. It concludes that a more fundamental shift needs to take place in dealing with criminal cases to enable speedier and more effective access to justice for victims of all crimes including domestic abuse.

Gogić, Kristina, ‘The Impact of Covid-19 on the Digitalization of Justice in the European Union’ (2022) 3(6) CIFILE Journal of International Law 1–11
Abstract: The digitalization of justice and digitalization, in general, is a priority of the European Union (EU) for the digital age. When the pandemic of coronavirus started, the cross-border court procedures were in paper format and hearings were held in person. COVID-19 brought changes faster because it wasn’t possible to continue the cross-border court procedures that way, during the strong waves of the pandemic, because of the health protection measures. So, the procedures started digitally in some European Union (EU) countries. Every government in the EU and worldwide had to act quickly and bring new court procedures and regulations. Then, courts and the Member States (MS) Bars had/have to implement these regulations in their rules. As it is known, attorneys at law represent clients in court. So many things had to be set to have a cross-border digital hearing.

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?

Gorman, Wayne K, ‘Judging in the Time of a Pandemic: The Impact of COVID-19 on Bail and Sentencing in Canada’ (2021) 57(1) Court Review 22–32
Abstract: The article explores how the COVID-19 pandemic has affected decisions by judges in Canada in the area of sentencing and judicial interim release. Topics covered include collateral consequences in determining sentence, the Parole Board’s determination of whether the prison environment is unsafe, and the requirement of a factual foundation. Several court decisions are discussed including the Ontario Court of Appeals in R. v. J. A., and the Nunavut Court of Justice in R. v. Pangon.

Gostin, Lawrence O, ‘Judicial Trends in the Era of COVID-19: Public Health in Peril’ (2023) 113(3) American Journal of Public Health 272–274

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)

Greenberg, Elayne E, ‘Blinding Justice and Video Conferencing?’ (St. John’s Legal Studies Research Paper No 23–0002, 26 January 2023)
Abstract: This Article discusses how to blind justice and reduce racial justice inequities when conducting dispute resolution processes for civil matters via video conferencing. The sheer volume of cases conducted via video conferencing during the pandemic provides an opportunity to begin examining this prescient issue. Post-pandemic, video conferencing remains a preferred mode of conducting dispute resolution processes for some dispute resolution cases because of its time and cost-saving benefits. This Article explores how we might we build on what we have learned to yield equitable justice outcomes. This Article focusses on three major racial justice equity issues magnified by video conferencing: remediating the digital divide; addressing the implicit racial biases that are exacerbated by video conferencing; and responding to Black participants’ procedural justice concerns when dispute resolution processes when video conferencing traverse the public/private divide. This Article culls from the emerging research and discussions about the intersectionality of video conferencing and implicit racial bias observed in virtual court hearings, interviews, and anecdotally during the Covid pivot.

Greenstein, Marla N, ‘The Impact of COVID-19 on Judicial Ethics’ (2021) 60(3) Judges’ Journal 40
Abstract: The article examines that courts moved to remote hearings and mask mandates, as judges who were resistant to the new arrangements and made their resistance known were subject to discipline, Topics include how judges and court staff explored accommodations using Zoom and similar platforms that would allow real-time video participation and closely simulate inperson hearings.

Grieshofer, Tatiana, ‘Remote Interpreting in Immigration Tribunals’ (2023) 36(2) International Journal for the Semiotics of Law / Revue internationale de Sémiotique juridique 767–788
Abstract: As part of the response to the COVID-19 pandemic, many jurisdictions across the world introduced remote hearings as an alternative way of continuing to offer access to courts. This practice-based article discusses the report prepared by the author for a judicial review case which revolved around the claim that in immigration settings the quality of interpreting conducted in fully online hearings is inferior to interpreting in face-to-face hearings. In the absence of pre-existing research comparing the impact of the physical and fully online settings on interpreting, the author’s expert witness report explored linguistic principles governing conversation and turn-taking management, power relations and narrativisation and discursive practices in online and physical settings to illustrate communicative advantages and disadvantages of each environment. The article draws on the investigations conducted for the expert witness report and pursues the following aims: (1) reflect on the role of linguistic expertise required for the case; (2) detail the conclusions drawn and recommendations endorsed in the report; (3) discuss the importance of effective communication in immigration settings; (4) challenge common misconceptions in relation to how narratives are elicited, shared and perceived; (5) explore safeguarding strategies for enhancing discursive practices in fully remote hearings in order to improve non-native speakers’ access to justice.

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.

Gunning, Isabelle R, ‘Justice For All In Mediation: What The Pandemic, Racial Justice Movement, And The Recognition Of Structural Racism Call Us To Do As Mediators’ (2022) 68(1) Washington University Journal of Law and Policy 35–62
Abstract: There is no question that the COVID-19 pandemic has disparately impacted poor and Black communities—with those communities experiencing higher rates of infection and serious health complications, including death. Recent events have served as a catalyst to a ‘racial reckoning’ in public discourse and a call on individuals and institutions to identify and address systemic racism. In this Article, the author argues that the dispute resolution community should take a special role in this time of renewed interest in, and urgency around, conversations related to race. Gunning argues that the dispute resolution community must acknowledge that the presence of racism and its negative impacts are embedded in the very structures of the mediation processes the field utilizes. Gunning concludes by advocating for a commitment to the transformation of dispute resolution processes by using a robust and contemporary view of ‘restorative justice’ that demands looking at justice at both the individual and societal levels.

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.’

Halmos, Szilvia, ‘Access to Justice in Labour Cases in Hungary during the Covid-19 Pandemic’ (2021) 14(1) Italian Labour Law e-Journal 147–167
Abstract: Access to justice is a fundamental right of workers stipulated in a set of international, EU and national instruments of law. The lockdowns induced by the Covid-19 pandemic have had double negative impact on the effective enforcement of this right. While pandemic-related lockdowns resulted in an increasing number of labour disputes and dismissals as well as generated novel and difficult questions of labour law, accessibility of legal remedies in Hungary became limited through the (temporary) restrictions concerning the functioning of the judiciary. In parallel, emergency-related amendments of labour law have, on the one hand, supported the survival of undertakings, on the other hand, restricted individual and collective rights of workers. This paper is designed to give a comprehensive view on the endeavours of Hungarian labour courts to guarantee the possibly uninterrupted and safe maintenance of litigation in labour cases.

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.

Hammerschlag, David, ‘Case Managing Building Litigation during COVID-19: “Will We Go Back to the Way We Were?”’ (2022) 37(5) Building and Construction Law Journal 437–441
Abstract: In March 2020, when the COVID-19 pandemic reached New South Wales it necessitated changes to case management. Some of the changes brought challenges but, strangely enough, some improvements and additional efficiencies have been achieved. I suspect that we will not go back to the way we were in all respects. I propose to identify the pandemic driven case management changes, identifying those which I think are here to stay, wholly or in part.

Hanby II, Michael J, ‘The Future of Forced Arbitration’ (2022) 65(5) Advocate 18–21
Abstract: The article looks at study found that 81 companies in the Fortune 100 use arbitration agreements to force their customers to give up their right to go to court. It mentions widespread use of inserting arbitration agreements in consumer contracts has only accelerated during the COVID-19 pandemic. It also mentions Consumer Financial Protection Bureau studied the issue in 2015 and consumer advocates have raised serious concerns with the fairness.

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.

Harker, Lisa and Mary Ryan, ‘Remote Hearings in Family Courts in England and Wales during Covid-19: Insights and Lessons’ (2022) Family Court Review (advance article, published 11 March 2022)
Abstract: The introduction of social distancing measures during the COVID-19 pandemic resulted in family court hearings in England and Wales being conducted remotely, by video or telephone. Over a 15 months period, the Nuffield Family Justice Observatory undertook three rapid consultations to identify how remote proceedings were working, according to families and to a wide range of professionals who work in and around the family court. The consultations revealed the value of working remotely in certain circumstances, but also highlighted significant questions of fairness and justice. These insights should inform how courts operate in the future.

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.

Hernandez, Joshua, ‘A Survey of Civil Procedure: Technology to COVID-19 Within State Courts’ (2022) 105(4) Marquette Law Review 963–1004
Abstract: The COVID-19 pandemic catalyzed the implementation of technological innovation within the legal field. Specifically, state courts used technology to adjust their civil procedures while maintaining accurate results, limiting costs, and providing meaningful participation to varying degrees of success. In addition, given the piecemeal nature of these adjustments, there is a lack of knowledge regarding what actions were taken in the early months of the pandemic. Thus, this Comment conducts a survey focusing on how the states adjusted their judicial civil procedures to respond to COVID-19’s impact. This Comment then argues that the most liberal implementation of technological adjustments may not be best for states to fulfill the historical purpose of civil procedure. Rather, states that implemented statewide orders, for a short period of time, allowing their lower courts to implement a full range of technological adjustments, best balanced the need for accuracy with the costs of implementation to maintain the highest degree of meaningful participation.

Hirsh, Merril, ‘Seven Steps for Using Special Masters to Help Courts with the Pandemic Caseload’ (2021) 60(3) Judges’ Journal 18–22
Abstract: The article reports that the American Bar Association House of Delegates approved Guidelines for the Appointment and Use of Special Masters in Federal and State Civil Litigation. Topics include how the courts faced the new challenge of dispensing justice safely in a world of social distancing and remote communication.

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

Houlberg, Michael and Janet Drobinske, ‘Pandemic Positives: Extending the Reach of Court and Legal Services’ (Institute for the Advancement of the American Legal System, 2020)
Abstract: This report details how courts, self-help centers, legal aid centers and law/public libraries in the U.S. made the transition to remote services in the wake of the COVID-19 pandemic. Topics covered include existing technologies and pathways of communication, messaging to litigants about service changes, and remote service delivery.

‘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)

Houston, Claire et al, ‘Ontario Family Justice in “Lockdown”: Early Pandemic Cases and Professional Experience’ (2022) Family Court Review (advance article, published 8 March 2022)
Abstract: The COVID-19 pandemic has profoundly affected families and children involved in Ontario’s family justice system as well as family justice professionals in the province. In a span of two years, Ontario’s family justice system has been fundamentally transformed, from a paper-based, in-person system to a paperless system in which many services, including judicial proceedings, continue to be largely delivered remotely. We report on the findings of two studies on the impact of the COVID-19 pandemic on Ontario family justice: (1) an analysis of early pandemic court decisions; and (2) a survey of family justice professionals about their experiences during the early pandemic. We describe how the pandemic has exacerbated access to justice issues for certain groups, including families experiencing high conflict, victims of intimate partner violence, families involved in child welfare proceedings, and self-represented litigants, while improving access to justice for others by improving efficiency and reducing legal costs. As Ontario moves past the pandemic, the family justice system will need to ensure that technological advances improve access to justice for all court-involved families.

Houston, Rachael, Tomothy R Johnson and Eve M Ringsmuth, SCOTUS and COVID: How the Media Reacted to the Livestreaming of Supreme Court Oral Arguments (Rowman & Littlefield, 2023)
Book summary: This book compares the volume and nature of online print and broadcast television coverage from major media outlets from all U.S. Supreme Court oral argument sessions during the October 2019, 2020, and 2021 Terms. The authors demonstrate that the move to livestreaming the Court’s oral argument sessions increased the frequency and depth of online print news media’s coverage in the short term but not in the long term. For both online print and broadcast outlets, their findings suggest that the benefits of increased transparency offered by livestreaming oral argument audio did not come with significant disadvantages for the Court in terms of long-term changes in its news media coverage. The authors analysis provides timely evidence that speaks to the current, and ongoing, debate about public access to the Supreme Court. It also speaks to the likely consequences of permanently continuing the practice of livestreaming oral argument audio and sheds light on the ramifications of other potential expansions in transparency at the Supreme Court, such as livestreaming opinion announcement audio or providing live video coverage of the Court’s proceedings. This work speaks to the impact of increased access to oral arguments and the inner workings of government institutions more broadly. Indeed, the U.S. Supreme Court was not the only institution to grapple with the constraints of the COVID-19 pandemic and opportunities for unprecedented, and instantaneous, access to anyone, anywhere. Better understanding the implications of the Court’s decision to livestream audio from its proceedings provides leverage on the consequences of greater government transparency for news media coverage and, by extension, individuals’ exposure to, and interaction with, government more generally.

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.

Hunter, Jill and Linda Pearson, ‘Supporting the Marginalized in Zoom Justice: Administrative Justice in an Australian Tribunal Context’ (2022) 17(2) The Journal of Comparative Law 313-330

Iryna, Kondratova and Korotenko Tetiana, ‘Towards Modern Challenges in Financing in the Judiciary Financing: Between Independence and Autonomy’ (2020) 3(7) Access to Justice in Eastern Europe 134–147
Abstract: An independent judiciary is the guarantor of a democratic state governed by the rule of law, which we strive to build in Ukraine. This independence is ensured, among other things, by a stable and sufficient funding of the national courts, which has become a significant challenge. The resolution of such issues has been sought in recent decades, but the problem of court financing has become especially acute in the context of the economic crisis and the coronavirus pandemic, which occurred in 2020. This has led to somewhat hopeless feelings about the chosen way of forming the policy of Ukrainian courts financing and its implementation. Our study attempts to analyze certain aspects of the existing mechanism of financing the judiciary in Ukraine, in particular, through the prism of financial support for judges and assistant judges during the coronavirus pandemic. The functions which they perform can be attributed to the main ones during the administration of justice. The authors propose the analysis of the case on the protection of the right of assistant judges to a decent salary, which lasted for years in all courts of the state. In connection with the coronavirus pandemic in Ukraine, a law was passed reducing the salaries of judges, which is also analyzed in the article. The search for a new, more modern approach to resolving the issue of a stable financial independence of the judiciary will help to solve urgent problems and ensure a real rule of law in Ukraine. In particular, our proposed approach to the formation of financial autonomy of the judiciary in Ukraine is suggested in this study.

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.

Javorka, McKenzie et al, ‘The Impacts of COVID-19 on Criminal Legal Proceedings and Victim Advocacy for Sexual Assault Survivors’ (2022) Victims & Offenders (advance article, published online 14 Feb 2022)
Abstract: This study examines how sexual assault criminal legal proceedings and victim advocacy services for survivors have been impacted by the COVID-19 pandemic. We interviewed 12 victim advocates at a sexual assault service organization in a large Midwestern city that was particularly impacted by the pandemic. Results indicate that there have been major disruptions to sexual assault case timelines and communication with victims. Victim advocacy for survivors has also been affected, especially the provision of court advocacy and accompaniment. We discuss implications of these findings for sexual assault survivors, service providers, and future emergency preparedness planning for the criminal legal system.

Jochelson, Richard et al, ‘Virtually Similar? Considering the Potential for Virtual Jury Trials in Canada During and After the Pandemic’ (2024) 46(3) Manitoba Law Journal (advance article)
Abstract: What challenges face jury work in a post-COVID justice landscape, one where the use of technology will likely lead to important questions about justice efficiency and the benefits of digital innovation in the criminal justice process? Before engaging in these analyses, we briefly touch upon the importance of jury work in criminal law in Canada. Because jury work is less frequently used in Canada than jurisdictions like the United States of America, sometimes readers wonder about its importance in the Canadian context as a topic of study. After providing some context as to the fundaments of the necessity and import of jury work in the Canadian context, we explain the methods we used in this paper, before ultimately discussing our findings and concerns about the future of Canadian criminal jury work. Ultimately, the use of videoconferencing technology for jury trials raises promising opportunities for service and representativeness, but the conception of jury trials being held through these means raises numerous concerns which represent significant barriers to an immediate videoconferencing revolution.

Johnson Raba, Claire, ‘Going Remote: Due Process and Self-Represented Debt Collection Defendants During the COVID-19 Pandemic’ (SSRN Scholarly Paper No ID 4064918, Social Science Research Network, 10 November 2021)
Abstract: In consumer debt collection lawsuits, the vast majority of cases end in default judgment entered against the defendant and the debtor never makes an appearance in court or seeks legal help. In response to the COVID-19 pandemic and the need for remote services delivery, courts made a rapid pivot to provide technology-based solutions for access to court processes. In 2020, when the courts closed to the public, and many lawyers started working from home, some counties among the 58 that comprise the California state court system continued to allow electronic filings. Analysis of court record data shows that debt collectors continued to file new cases even though e-filing was not available to unrepresented parties and the courts were closed for in-person services. This Essay posits that technology can be helpful in a time of crisis but poses a risk as an intervention that may cause additional harm and exacerbate inequities in the civil legal system if it does not make an affirmative effort to reach those struggling to access the justice system. In a look at the pandemic-era data in a populous and high poverty-rate county, the research behind this Essay identifies possible and actual risks to the due process rights of self-represented litigants posed by rapid conversion to new legal technologies in a pandemic or other crisis.

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?

Juniarti, Dewi Bella, ‘Fulfillment of Defendant’s Rights in PERMA Number 4 of 2020 Reviewed from the Principle of Due Process of Law’ (2021) 5(2) Lex Scientia Law Review 89–104
Abstract: The purpose of this study is to find out and analyze the defendant’s rights and the obstacles to their fulfillment through the principle of due process of law. The defendant’s rights are contained in Supreme Court Regulation Number 4 of 2020 concerning Administration and Trial of Criminal Cases in Courts Electronically. It was considered that during the Covid-19 pandemic, the trial was conducted electronically due to the emergence of public social restrictions. This research was conducted using the juridical-normative method by examining library materials and secondary data through a previous study of laws and regulations, books, and research results. The deviations of the fulfillment of the defendant’s rights in the electronic trial from those previously contained in the Criminal Procedure Code occur because of the limited scope regulated by Supreme Court Regulation 4/2020 that concerning electronic trials, so it is considered difficult to implement the defendant’s rights in practice fully. Non-optimal fulfillment of the defendant’s rights indicates that the due process of law principle cannot be applied in electronic trials, so it is necessary to update regulations regarding electronic trials in Indonesia to optimize the to optimize the development of national law that considered the perspective of justice.

‘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.

Kandida, Beste Refo, Suya Nita and Mulyadi Mulyadi, ‘The Effectiveness of Online Examination During the Covid-19 Pandemic on Law Enforcement in Subdit II of Dittipidum of Bareskrim Polri (Case Study on Decision Number: 935/PID.B/2020/PN BDG)’ (2022) 9(6) International Journal of Multicultural and Multireligious Understanding 365–375
Jurisdiction: Indonesia
Abstract: The objectives of the present study were 1) to find and analyze obstacles when conducting online examination of witnesses and suspects, 2) to analyze and offer efforts so that the results of online examination of witnesses and suspects can become evidence that has binding power throughout the criminal justice process. This was qualitative study that combines normative and empirical study. The study was conducted at the Sub-Direktorat II of Dittipidum of Bareskrim Polri. The analysis was based on the applicable laws and regulations and was relevant to the legal issues that were the focus of the research. The results of this study maintained fair legal certainty which was an important thing during the current Covid-19 pandemic. Online examination had not been regulated in the Criminal Procedure Code, so that the minutes of online examinations were expected to be valid evidence in court and had binding evidence. Based on the results of the study, it was concluded that the existing laws and regulations were not sufficient to support the law enforcement process during the COVID-19 pandemic as expected due to a legal vacuum and technical regulations.

Kannan, Samyuktha, ‘Covid-19: An Opportunity to Restructure the Indian Legal System’ (2022) 5(1) International Journal of Law Management & Humanities 1742–1749
Abstract: The COVID-19 pandemic has, over the course of its 3 years, resulted in a significant loss of human life and continues to pose an incomparable challenge to day-to-day activities. The Indian Legal System, even before it entered the pandemic, was in severe ill health and enduring co-morbidities. With an unparalleled burden of judicial pendency, infrastructural shortcomings, scarce representation, etc., the condition of the Indian legal system was expected to severely deteriorate due to the pandemic and its corresponding implications. As the Covid crisis ploughed on, ravishing economies and reshaping livelihoods, the legal landscape too underwent harsh disturbances. With the pandemic-induced lockdown put in place, legal services in India and around the world found themselves shoved into an intimidating and novel online medium. Paradoxically, as horrifying and painful as the pandemic has been to a majority of the legal institution, it was seen that a part of these changes emerged for the betterment of the legal system and all those that it served to help. This paper aims to critically analyse the positive impacts the Covid-19 pandemic has on the Indian legal landscape, with particular emphasis on the problems facing the Indian legal system now and how the pandemic may bring about a change for the better.

Karski, Karol and Bartlomiej Oreziak, ‘Selected Considerations Regarding the Digitalisation of Criminal Proceedings in Light of the Standards of the Council of Europe: Analysis Taking into Account the Experience of the Current Pandemic’ (2021) 26(6) Bialystok Legal Studies / Bialostockie Studia Prawnicze 55–70
Abstract: Th e aim of the article is to prepare an analysis in order to formulate propositions regarding the digitalisation of Polish criminal proceedings as regards the administration of justice. Th ese hypotheses would have merited consideration even pre-pandemic, but they demand even more attention as a result of the pandemic. Th e pandemic has served to highlight the pre-existing necessity to adapt criminal law to the latest observable technical and technological advances. In light of the above, the fi rst issue to be analysed concerns the conditions, procedures, and possibilities surrounding the collection of evidence electronically, taking into account the most recent relevant guidelines of the Council of Europe. Th e second issue to be examined will be the adaptation of criminal procedures, including Polish, to the standards stipulated in the Convention of the Council of Europe on Cybercrime of 23 November 2001, in light of national norms regarding evidence gathering. Th e third issue that will be assessed in this study will be the benefi ts, risks, or potential of the application of artifi cial intelligence algorithms in criminal procedure. Th e consideration of each of the three areas will have regard to the present global pandemic. Th e article concludes with a concise summary containing the authors’ conclusions and propositions de lege ferenda.

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.

Klonoff, Robert H, ‘COVID-19 Aggregate Litigation: The Search for the Upstream Wrongdoer’ (2022) 91(2) Fordham Law Review 385–428
Abstract: The COVID-19 pandemic has generated many suits--including thousands of class actions--in which plaintiffs claim that defendants caused economic or health-related harm. Although the COVID-19 context may have led many plaintiffs’ lawyers to believe that the cases would be received with great sympathy, courts thus far have been very cautious, focusing closely--as they do in non-COVID cases--on whether the defendant has breached clear contractual commitments or has engaged in tortious or other wrongdoing. If anything, courts have been more skeptical and cautious in the COVID-19 context, recognizing that everyone has suffered due to the pandemic and that, in many instances, defendants themselves have attempted in good faith to navigate the challenges raised by the pandemic. This Essay focuses primarily on three categories of cases that have already generated numerous rulings: (1) business interruption insurance claims, (2) tuition reimbursement actions, and (3) suits against prisons and immigration detention facilities. These three categories of cases line up on a continuum based on whether the proximate cause of the harm is COVID-19 itself or the conduct of the defendants. At one end are the business interruption insurance cases, which have received hostile treatment from almost all courts that have considered those claims. The underlying insurance policies almost universally require ‘physical loss or damage’ to property, a requirement that is hard to square with losses caused by a pandemic. In the middle are the tuition refund cases, which have seen mixed success, with many (but not all) courts granting motions to dismiss after failing to find that there was a contractual commitment to in-person teaching. At the other end is the category of cases raising health and safety issues related to COVID-19 in prisons and at immigration detention facilities. On the merits, this is the strongest of the three categories, given the clear legal duty of government officials to protect the health of those in their custody. Yet, even in this context, many courts have declined to authorize injunctive relief, finding that the officials involved have attempted in good faith to protect their populations from COVID-19. At bottom, courts have commendably stayed focused on the merits and have not been swayed by the enormity of COVID-19 or the large numbers of claims. After discussing the three categories above, this Essay also briefly examines (1) consumer, labor, and securities fraud cases in the context of COVID-19; (2) COVID-19 cases involving arbitration clauses and class action waivers; and (3) the handful of class-wide settlements that have thus far been reached in COVID-related litigation.

Kõve, Villu and Karin Leichter-Tammisto, ‘The Emergency Situation in Estonia, Fundamental Rights and the Rule of Law’ in Rainer Arnold and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic (Springer, 2023) 145–149
Abstract: The pandemic caused by the spread of Covid-19 came as as a shock to Estonian judiciary as well as everyone else. Firstly, this article shares thoughts on fundamental rights and the principle of the rule of law in the emergency situation in general as this twenty-first century crisis raised the polarized and multifaceted question of freedom and responsibility. Unfortunately, people had to learn the hard way how valuable it is to live in a free society and have the possibility to things in their preferred way. When these freedoms are taken away or are restricted, a question of obligations and the extent of solidarity is inevitable. One person’s freedom ends where another person’s freedom begins and this applies inter alia to freedom of speech. Secondly, as to the Estonian perspective on the matter—ensuring the work of the court system during the pandemic became a difficult task for the courts. Although during the emergency situation different restrictions were imposed, the administration of justice continued. The Council for Administration of Courts in Estonia began to find solutions how to ensure the work of the courts and grant the parties of the proceedings the right to a fair trial. Finally, many complaints against the restrictions imposed by the Government regarding public gatherings or vaccination were contested in courts. A brief overview of the nature of these complaints is given.

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.
Contents:
  • 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
Kurniawan, Wahyudi, Sholahuddin Al Fatih and Tinuk Dwi Cahyani, ‘Online Court Problems During the Covid-19 Pandemic and Its Impact on Advocates in Providing Legal Assistance to Clients’ (Proceedings, 3rd International Conference on Law Reform 2022) 686–696
Abstract: The World Health Organization (WHO), declared the outbreak of the spread of Covid-19 as the first and foremost health crisis pandemic in the world. Due to the pandemic, human life has changed including legal services provided by advocates where there are rules regarding online trials during the Covid-19 pandemic. This study uses empirical juridical research methods or field research, namely examining applicable legal provisions and what is happening in reality in society. The problems in this study are: 1. What are the advantages of online trials during the pandemic according to advocates in providing legal assistance to clients? 2. What are the shortcomings of online trials during the pandemic according to advocates in providing legal assistance to the clients? The results show that the advantages of online trials according to advocates include: 1. More practical and easier for the trial because it does not have to be present in court. 2. It is more efficient because case information is in one account. 3. More cost-effective while the disadvantages of online trials according to advocates include: 1. Signal interference and technological devices. 2. Lack of effective law enforcement. 3. Violating the provisions of procedural law in proving. So far, the law has always been far behind in the development of community needs, so progressive law is more open and responsive to changes and is not bound by written law. In this case, the law must be placed in the whole of humanity. Thus, the role of judges is more to ensure the fulfillment of community needs for justice and welfare. This means that the existence of the law should reflect the standard of what is good and bad, fair and unfair.

Kwan, Martin, ‘Remote vs. In-Person Testimony in Hong Kong Courts’ [2021] Northwestern University Law Review of Note (20 June 2021)
Abstract: Should the pursuit of effective scrutiny of witnesses override public health considerations and the witness’s right to health? This article explores the debate on whether a witness can choose to give evidence via video-conferencing facilities (VCF) during the COVID-19 pandemic. It explores the practices adopted in a number of jurisdictions, such as the UK, Hong Kong, Australia and Canada.

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.

Laguardia, Francesca, ‘From the Legal Literature: Covid and the Criminal Law’ (2021) 57(2) Criminal Law Bulletin 278–287
Abstract: This review begins with the specific effects of COVID-19 on the courts and jury trials. It then moves to the staying power of these effects. Finally, the review looks to the possible Fourth Amendment implications for efforts to enforce COVID-19 responses.

Laguardia, Francesca, ‘From the Legal Literature: Virtual Testimony Post-COVID’ (2023) 59(3) Criminal Law Bulletin 367–375
Abstract: When the novel coronavirus that caused the COVID-19 pandemic first rocked the nation during the winter of 2020, courtrooms and much of the legal process ground to a halt. However, it quickly became clear that courts could not simply sit out the pandemic, and emergency processes were developed. These processes largely relied on remote proceedings, wherein attorneys, parties, witnesses, and judges each sat in separate rooms, addressing each other only via Zoom or other teleconference platforms. Much as the need for emergency responses to COVID-19 was immediately apparent, so too were the flaws inherent in these methods of remote representation. Moving testimony to a virtual format more generally appears to be an idea that will not be laid to rest. The COVID-19 pandemic may have put new life into this debate, but it has not changed the arguments that are made. In the end, the question is how and whether jurors can be trusted to assess the credibility of witnesses. Social science does not support the claim that two-way videoconferencing can match in-person testimony; to the contrary, evidence appears to suggest that videoconferencing is inherently inferior for purposes of communication and assessing reliability. Absent the type of specific necessity presented by an alternative of complete closure of courts, or a particularly vulnerable witness, videoconferencing is unlikely to be found an adequate replacement for a witness’s presence.

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.

Larner, Samuel and Hannah Smithson, ‘“How Can You Punish a Child for Something That Happened Over a Year Ago?” The Impacts of COVID-19 on Child Defendants and Implication for Youth Courts’ (2023) 87(4) The Journal of Criminal Law 252–265
Abstract: The project on which this paper is grounded is the first in-depth empirical study of the impacts of COVID-19 on each stage of the English and Welsh Youth Justice System. We take the notion of a child’s right to a fair trial as the lens by which we detail the findings from our research. The paper documents the experiences of professionals working in the courts and children who had contact with the courts during the pandemic. While we concentrate on processes in England and Wales as an exemplar of the impact of COVID-19, recognising that globally, courts were experiencing similar challenges, initiates a discourse about how to re-envision their role in wider criminal justice systems in a COVID-19 world. Our research demonstrates an urgent need for renewed consideration of what support children need to effectively participate in court, and where and how children’s cases should be heard. The pandemic demonstrated that creativity is possible and creates a timely opportunity to review the evidence and think more radically about a welfare-based, trauma-informed court process for children.

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.

Law Society of NSW, A Fair Post-Covid Justice System: Canvassing Member Views (January 2022)
Abstract: Almost two years since the pandemic slammed courtroom doors and law firm offices shut, migrating most legal work to online systems, the Law Society of NSW has released exclusive research into how solicitors of NSW feel about the changes. Most have been well received; but there are also challenges.

Leach, Amy-May et al, ‘COVID-19 and the Courtroom: How Social and Cognitive Psychological Processes Might Affect Trials during a Pandemic’ (2022) 28(8) Psychology, Crime & Law 731–762 < >
Abstract: Around the world, almost every aspect of people’s lives has been affected by the novel coronavirus (COVID-19). We focused on one context that has received relatively little attention to date: the courtroom. Guided by established psychological findings and theories, we explored how the emergence of COVID-19 and proposed protective measures against the virus (i.e. face masks, physical distancing) could affect legal decision-making at trial. For the majority of the phenomena that we considered, the extant literature predicted negative or mixed effects. Because it appears likely that extralegal factors related to the pandemic will affect outcomes, the fairness of proceedings must be called into question. Overall, this work suggests that the reopening of the courts might be premature. It also highlights the importance of leveraging established psychological findings to address questions arising from unpredictable events when direct research is not yet available.

Legg, Michael, ‘Court Judgments “on the Papers”’ (2022) 10(4) Journal of Civil Litigation and Practice 167–168
Abstract: The COVID-19 pandemic required alterations to court procedures to comply with health orders. By the end of March 2020, few Australian courts were hearing many matters face-to-face. Hearings were conducted via audio visual link (AVL) or, in some instances, over the telephone or ‘on the papers’. However, many of these alternatives to a face-to-face hearing existed pre-pandemic, including resolving matters on the papers as a way to promote the efficient resolution of the court’s business. The source and scope of the courts’ power to determine a matter on the papers was the subject of two Victorian Court of Appeal decisions: ‘Coffey v O’Halloran’ and ‘Carroll v Goff’. Resolving matters on the papers is an established way in which a court may proceed, provided it is in-keeping with procedural fairness. The above Victorian Court of Appeal decisions provide helpful guidance for trial courts needing to navigate this area – both during pandemic times, and in seeking to promote justice in an efficient manner in normal times.

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 et al, ‘Open Justice during a Pandemic: The Role and Risks of Remote Hearings’ (2022) 33(2) Public Law Review 143–162
Abstract: Open justice is a fundamental principle of the Australian justice system. The public administering of justice allows members of the community to be present and personally observe hearings. However, with the advent of the COVID-19 pandemic, stay-at-home orders, social distancing, and closure of court houses meant that judges could not sit in public as they traditionally had. To continue operating, courts turned to technology to conduct hearings remotely. This article examines this experience and considers the consequences of remote hearing technology as a substitute for traditional in-person attendance, including an analysis of both the role and risks that remote hearings can have for open justice.

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. :

Lisko, Karen, ‘Bearing Witness to, Well, Witnesses: An Examination of Remote Testimony Versus In-Court Testimony’ (2021) 51(1) Southwestern Law Review 63–70
Abstract: The COVID-19 pandemic required the world to quickly adapt countless in-person tasks to remote settings. In the courts, it also accelerated experimental approaches to remote courtroom practices across the United States, including the appearance of trial witnesses testifying live via remote video. While some courts have sporadically incorporated this practice for years, the pandemic prompted many courts to examine this mode of testifying at a more expansive level when choosing among the four options of (1) suspending in-person trials altogether, (2) participating in socially distanced trials, (3) conducting remote trials, or (4) presiding over ‘hybrid’ trials (combining some in-person elements with remote components). So, how has this quickening of approaches impacted witness testimony, and how have juries and trial attorneys reacted to these modes of testifying? This Essay addresses results from several recent (and, in the case of my doctoral dissertation, not so recent but, in parts, still relevant) sources. Throughout the pandemic, my colleagues and I have conducted simulations on behalf of the Online Courtroom Project and as advisors to the Maricopa County (Arizona) Jury Trial Innovation Task Force, including Dr. Jeff Frederick, who has also authored an article for this issue.4 In addition, I have conducted post-trial interviews with actual jurors and attorneys involved in remote trials who offered their perspectives on remote witness testimony. I have also analyzed national survey data on behalf of the Judicial Division of the American Bar Association regarding judges’ and attorneys’ experiences with and attitudes toward remote proceedings.6 As part of this research on remote proceedings, we have collected judges’ and attorneys’ forecasts about the future of remote witness testimony. The great majority predict many witnesses will testify remotely to some degree long after the pandemic is over, largely to enable witnesses to appear remotely by videoconference when health or distance would ordinarily preclude their involvement if they were only allowed to testify in the courtroom. If this prognostication is true, we must better appreciate the jury experience with witnesses in the remote setting.

Lucas, Paul A, Kweilin T Lucas and Catherine D Marcum, ‘Best Practices and Beyond: Exploring the Impact of the COVID-19 Pandemic on Treatment Courts in a U.S. Southern State’ (2023) 14(2) International Journal for Court Administration Article 2
Abstract: This study examines the impact that COVID-19 has had on treatment court professionals in a US southern state during four time periods to determine if and how the pandemic hindered their ability to process cases and provide services to participants, and to give insight about their overall feelings of safety working within their courts during the pandemic. Treatment court coordinators working within drug treatment courts (DTCs), mental health courts (MHCs), and veterans treatment courts (VTCs) were administered online surveys to self-report their experiences about how they have adapted to the many challenges presented by COVID-19. As is common with exploratory research, an inductive approach was used to compare findings from the treatment court coordinators to the Adult Drug Court Best Practice Standards Volumes I and II to better understand the impact that COVID-19 has had on the sampled treatment courts. Findings indicate that there are potential issues with best practice standards, which can negatively affect treatment court effectiveness. Regardless, respondents reported feeling relatively safe about their work environment across the four time periods.

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.

Lurie, Lilach and Reut Shemer Begas, ‘Access to the Labour Courts in Israel during the Covid-19 Crisis’ (2023) 44 Industrial Law Journal (South Africa) 51–70
Abstract: The article examines access to the labour courts in Israel during the Covid-19 pandemic, focusing on the first year of the crisis. It shows that the labour courts managed to deliver the same number of judgments and decisions in 2020 as they did in previous years. In order to keep open during the crisis and to enable access to justice the courts made use of three main tools: (a) technological tools, (b) awarding precedence to the most important and urgent proceedings, and (c) social distancing regulations.

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.

Marcus, Kate, ‘Risk Watch: Social Distancing: Not Just for COVID: Contact between the Bench and the Legal Profession’ (2022) 44(2) Bulletin (Law Society of South Australia) 36–37
Abstract: The South Australian legal fraternity is fortunate to maintain close-knit professional relationships. However, how those relationships are perceived by clients must always be considered. Even more important is the relationship between members of the independent Bar and the judiciary, particularly as it is quite common for the judiciary to be appointed from senior counsel. All judicial officers, including many registrars, tribunal members, senior judges etc were all once part of the profession at large with many having professional ties spanning decades. Bias, whether apprehended or actual, has the potential to lead to client dissatisfaction at best and costs orders or disciplinary redress at worst. Accordingly, professional relationships should remain as such or be disclosed either with consent or the parties recusing themselves.

Mariani, Nicole, ‘Hiding in Plain Language: A Solution to the Pandemic Riddle of a Suspended Grand Jury, an Expiring Statute of Limitations, and the Fifth Amendment’ (2022) 76(4) University of Miami Law Review 938–981
Abstract: Under the statute of limitations applicable to most federal crimes, 18 U.S.C. § 3282(a), ‘no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.’ That long-standing, generally uncontroversial procedural statute was thrust into the spotlight in 2020, when courts, prosecutors, and criminal defendants confronted an unprecedented and extraordinary scenario. In response to the COVID-19 pandemic, many federal district courts suspended grand juries to prevent the spread of the highly contagious life-threatening virus through group congregation. Indeed, to combat the rampant and unabating COVID-19 outbreak in Florida, the District Court for the Southern District of Florida suspended grand juries from March 26, 2020, until November 17, 2020, creating a nearly eight-month period during which prosecutors could not obtain indictments. But, under the Fifth Amendment to the United States Constitution, criminal defendants have the right to be prosecuted by indictment. Thus, during the grand jury suspension, the five-year statute of limitations applicable to most federal crimes was expiring on uncharged criminal conduct that ended in 2015 at a time when prosecutors could not comply with the Fifth Amendment. Despite being alerted of this constitutional issue, Congress did not enact legislation giving either the Chief Judge of the United States Supreme Court or the Chief Judges of the United States District Courts authority to suspend statutes of limitations during national emergencies, such as the COVID-19 pandemic, that affect the functioning of the courts. The combination of that judicial decision to suspend grand juries and that legislative decision not to suspend statutes of limitations posed a pandemic riddle: how can prosecutors comply with both the statutes of limitations and the Fifth Amendment when there are no grand juries? This Article examines the text of 18 U.S.C. § 3282(a), Federal Rule of Criminal Procedure 48(a), and 18 U.S.C. §§ 3288 and 3289; the purposes of statutes of limitations and the Fifth Amendment right to prosecution by indictment; and the related legislative history. Based on that examination, this Article suggests that, for most federal crimes, when defendants assert their Fifth Amendment right to prosecution by indictment during a pandemic (or other national emergency) that suspended grand juries and the statute of limitations on their alleged crimes is expiring, prosecutors can uphold that constitutional right and that statutory privilege as well as the public interest in seeing lawbreakers brought to justice by: (1) filing an information to toll the statute of limitations under 18 U.S.C. § 3282(a); (2) dismissing that information without prejudice under Federal Rule of Criminal Procedure 48(a) if the defendant does not waive his right to prosecution by indictment; and (3) obtaining a timely indictment within six months of the resumption of grand juries under the savings clauses in 18 U.S.C. §§ 3288 and 3289 for re-prosecutions after the dismissal of a timely filed information. This Article concludes that there already is a mechanism in the federal statute of limitations appliable to most federal crimes that allows prosecutors to constitutionally preserve criminal charges when a national emergency prevents grand juries from finding indictments.

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.

Markiewicz, Krystian, ‘Court Composition and Its Invariability as Elements of a Court Established by the Law during Covid-19 Pandemic: Lessons from Poland’ (2022) 6 Access to Justice in Eastern Europe (advance article, published online 6 July 2022)
Abstract: The article discusses systemic and processual changes in provisions referring to the panels of judges in Poland. The statutory regulation adequate during the COVID-19 epidemic contains regulations whereby a single-judge panel is proper in the first and second instance. At the same time, the principle of invariability and stability of the courts’ panel was exterminated. However, in case of Poland the protection of the dependent court, established with an extreme breach of law is protected by administrative and political decisions on shaping the court composition. Dogmatic legal analysis. The subject of the dogmatic legal analysis is the content of the law and its interpretations found in the jurisprudence and views of the doctrine. The court ‘shaped’ in such a way guarantees the expected ‘judgment’. There are fears that these standards of the highest judiciary bodies in Poland may spread among other courts which are managed by the presidents appointed by Justice Minister - General Prosecutor. Judges appointed in an illegal way will, by way of political decisions, be in particular court composition, and then talking about court independence will be completely untrue. Let’s hope that COVID-19 pandemic will end soon. It is then necessary to make sure that all the restrictions on the right of recourse to court, introduced as a pretext to combat the pandemic, will be removed. Otherwise, the pandemic of lawlessness will stay with us much longer than Covid.

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.

Mashraf, Ali and Jalal Uddin Ahmed, ‘Operation of Virtual Courts: Impact of COVID-19 Pandemic on Access to Justice in Bangladesh’ (2021) 1(1) University of Asia Pacific (UAP) Law Review 1–17
Abstract: The outbreak of the COVID-19 pandemic in Bangladesh in March 2020 forced the judiciary to halt all court activities (both the apex and the subordinate courts) for more than a month. Thereafter, the Use of Information and Communications Technology by Court Ordinance, 2020 (which was later passed as an Act by the Parliament) paved the way for the virtual operation of courts for the first time in the history of Bangladesh. Apart from the Act, the Supreme Court, by exercising its power under Article 107 of the Constitution, has issued numerous practical directions and circulars from time to time for the smooth functioning of courts of all tiers virtually. However, despite virtual courts operating for over a year now, some obvious loopholes in the laws, procedures, and infrastructure still exist, e.g., limited functioning of courts, lack of clarity and conflicting directions in various circulars, accessibility issues, etc. Consequently, these loopholes have created a bar to access justice via the formal court system for our citizens, which violates their fundamental rights. Against this backdrop, this article analyses the impact of COVID-19 on access to justice for Bangladeshi citizens through virtual courts. It elaborates on Bangladesh’s mandate of access to justice as enshrined in the Constitution and various international legal instruments, and to what extent the virtual courts have been able to ensure this right for the citizens. The article further identifies the loopholes in the virtual court system that hinder people’s access to justice. It concludes with informed recommendations for policymakers and the judiciary based on the best practices of other common law countries in shaping up our virtual court structure to ensure that the courts remain properly functional at all times to dispense justice.

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.

Mazzone, Jason et al, ‘The Impact of the COVID-19 Pandemic on State Court Proceedings: Five Key Findings’ (SSRN Scholarly Paper ID 4108078, 10 May 2022)
Abstract: The University of Illinois System’s Institute for Government and Public Affairs and the National Center for State Courts jointly conducted the COVID-19 and the State Courts Study between August 2020 and July 2021. The first stage of the study involved focus groups of attorneys, judges, court administrators, court staff, jurors, and litigants in four states. This report describes some results of the second stage of the study, which involved nationwide surveys of judges, court personnel, and attorneys. The surveys asked participants questions about access to courts during the pandemic and their experiences with the new strategies courts adopted to continue hearing and processing cases. This report summarizes five key findings from the surveys concerning access to the courts. First, early in the pandemic, most attorneys thought that litigants’ access to judicial proceedings was worse than usual. Second, attorneys reported that litigants’ experiences in courts improved after September 2020. Over time, participants believed that some early access difficulties abated. Third, court personnel had a more positive view than did attorneys about the ability of individuals to participate in the judicial system during the pandemic. Fourth, attorneys with practices concentrated in landlord-tenant law and criminal law perceived somewhat greater problems than did attorneys who practice in other areas of the law. Fifth, while participants identified many benefits to online court proceedings, they also saw drawbacks. Assessing whether and under what circumstances to conduct court proceedings online after the pandemic is over will require careful consideration of benefits and downsides and balancing some competing factors.

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.

McConville, Mike and Luke Marsh, ‘Resuscitating Criminal Courts after Covid-19: Trialling a Cure Worse than the Disease’ (2022) 26(2) International Journal of Evidence & Proof 103–120
Abstract: This article, focusing on the issue of custody time limits litigated under Covid-19 conditions, sets out how reasoned decisions to refuse to extend custody for unconvicted defendants excited the disapproval of senior judges such that fundamental changes were made to evidence, procedure and proof as well as effecting permanent manipulation of the composition of the adjudicating panels authorised to deal with such cases. This additionally raises fundamental questions about the administration and governance of the courts, the independence of the judiciary in decision-making and the basic utility of the presumption of innocence in such cases.

McGhee, Marcus, ‘We Interrupt Your Broadcast [Ban] to Bring You [Greater Access]: New Consideration for Rule 2.17 during a Pandemic’ (2022) 31 Notre Dame Journal of Law, Ethics & Public Policy Online Supplement 477–500
Abstract: In March 2020, the COVID-19 pandemic closed down courthouses across Indiana. While trial courts in other states began conducting proceedings online and live streaming them on media platforms to ensure public access, Indiana Supreme Court rules explicitly outlawed that practice. The Indiana Supreme Court temporarily suspended that rule a month after the governor issued an executive stay-at-home order. While pragmatic, case law suggests the order was unnecessary. Trial courts could have utilized the audio and video accommodations afforded to absent parties to provide access to the public. Opponents argue the Sixth Amendment’s public hearing clause requires court proceedings, especially those criminal in nature, to be open to any and everyone who wants to view them. Those arguments fail to correctly recognize that the right to a public hearing does not require access for all, but instead access to those who wish to participate and who successfully gain entry. This article reviews the history of Rule 2.17, highlights how that history would have supported the Indiana Supreme Court’s decision to leave the rule unamended, and explain how the inclusion of some at the exclusion of many is still constitutionally sound.

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.

Miliuvienė, Jolita, ‘Preconditions to Avoid Constitutional Rule of Law Crisis: Some Reflections on Appointment Procedure of Constitutional Justices’ in Rainer Arnold and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic (Springer, 2023) 53–65
Abstract: The weakening of the constitutional review institutions is the red flag for the appropriate implementation of the principle of the rule of law. Successful renewal of constitutional composition is one of the guaranties of the independence of the Constitutional Court. The wave of constitutional crises related to the renewal of the composition of the constitutional courts that have recently swept through Europe and beyond revealed the importance of this procedure to the preservation of the rule of law in the state. Therefore, taking as the example Lithuanian case, the article analyses the peculiarities of the mechanism for appointing the justices of the Constitutional Court, and the reasons for the increasing incidence of untimely appointments of constitutional justices. Political interference in judicial appointment might be seen as a threat to independence of constitutional judges. However, the necessity to overcome the counter majoritarian difficulty doesn’t permit to eliminate the politicians from the appointment procedure. Therefore, the safeguards to the possible abuse of the powers given to the political actors participating in the appointment of constitutional judges should be determined and some particular criteria to take into account while choosing the appropriate candidacies must be applied. The wisdom of sages around the world is needed to keep the right balance between political interference and judicial independence and to ensure accordingly the respect of the rule of law in every step of the national legislation.

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.

Mirkamali, Seyed Alireza, ‘The Effect of Covid19 Virus on Criminal Proceedings; Opportunities and Challenges’ (2022) Journal of Law Research (advance article, published online 5 July 2022)
Jurisdiction: Iran
Abstract: In substantive and formal criminal law, especially criminal procedure, the purpose of the legislator in legislating and approving new regulations, taking into account the new conditions, is to facilitate matters in the criminal process; In such a way that the rights of the litigants are respected. Of course, in this regard, according to legal principles, the legislator pays special attention to the accused to protect his rights. At present, in view of the widespread epidemic of the Covid 2019 virus and its dangers to public safety and the personal and social health of citizens, it is necessary to plan and organize in order to prevent compatriots from contracting the virus. Therefore, it is the duty of all forces and executive bodies to take the necessary and appropriate measures in this regard. The outbreak of the virus and the public's concern about it have had a profound effect on the criminal proceedings, as well as the way litigants appear in the judiciary and pursue their cases. To this end, the judiciary, judicial officials and managers have considered measures in criminal proceedings and issued special sections and instructions. Such as the circular issued by the First Deputy of the Judiciary to all judicial and administrative units of the Judiciary in order to postpone the trial until the end of April 2020.

Mohseni, Hassan, ‘Emergency Model of Civil Procedure in Corona Virus Pandemic’ [2022] Journal of Law Research (advance article, published online 5 July 2022)
Jurisdiction: Iran
Abstract: The emergency civil litigation model is a temporary, critical, rapid and optimal model. To achieve this, the management of the corona crisis in the judiciary must remove some of the ambiguities that arise as a result of understanding the principles of the Constitution and the inherent duties of the judiciary. The principle of the permanence of the judiciary is not incompatible with the temporary closure and suspension of the nature of judicial action and the development of electronic and virtual devices. The Iranian judiciary must use the teachings of the world involved in the corona to rethink some rules and procedures of the court and prepare itself for the post-coronary world and the development of an speedy, low-cost, fast and virtual procedure.

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.

Moreira, João Ilhão and Liwen Zhang, ‘Assessing Credibility in Online Arbitration Hearings: Determining Facts and Justice by Zoom’ (2024) 37(3) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 887–901
Abstract: The COVID-19 pandemic has led to the widespread use of online hearings in arbitral proceedings, raising questions about the impact of such proceedings on the determination of facts underlying a dispute. This article explores the extent to which online hearings may hinder arbitrators’ ability to assess witness credibility by drawing upon the cognitive psychology literature on truthfulness determination and lie detection. A survey of the literature suggests that the ability to differentiate truthful from dishonest statements through verbal and nonverbal cues is limited, leading to the notion that observing behaviors like fidgeting, gaze aversion, vocal pitch, or body posture is not particularly relevant in assessing the credibility of a witness. Instead, focusing on the content of what is reported appears to be the most relevant strategy to determine credibility. Therefore, research does not support the idea that face-to-face contact with witnesses is essential to determine the facts of a dispute. Still, the use of in-person hearings may, in practice, continue to be preferred due to underlying cultural assumptions regarding the nature of hearings, the facilitation of communication between parties, counsel, and the tribunal, and a general sense of Zoom fatigue.

Muhidin et al, ‘Digital Acceleration During Covid-19 Pandemic: How the Indonesian Constitutional Court Brings the Citizens Justice’ (2023) 14(2) International Journal for Court Administration Article 1
Abstract: The Covid-19 pandemic has changed all aspects of people’s lives, starting from social, political and economic conditions, but not in the world of justice. Because the judicial process must continue to ensure access to justice for justice seekers, as a judicial institution, the Indonesian constitutional court will undoubtedly continue to provide justice through various methods of digital acceleration. Several accelerations successfully developed by the court include online trials, online application submissions, online decisions, and copies of decisions that can be downloaded on the website. This article will discuss how the court provides justice during the Covid-19 pandemic. Interestingly, filing requests for judicial review experienced a significant increase during 2020-2022, even though the Covid-19 pandemic was hitting the world. During that period, the court decided several times on exceptional cases restoring society’s sense of justice.

Narh, Christabel, ‘Zooming Our Way Out of the Forum Non Conveniens Doctrine’ 123(3) Columbia Law Review 761–803
Abstract: The effects of the pandemic have shed light on the evolution of technology in the legal space, including the use of technology in videoconferencing proceedings and facilitating court procedures. Despite the benefits associated with technology, the rapid adoption of videoconferencing proceedings in courts may have unprecedented impacts on the relevance and practicality of the forum non conveniens doctrine. Additionally, the drastically different approaches that federal courts have taken in response to the disproportionate geographic effects of the pandemic may give way to forum shopping. Plaintiffs may be more incentivized to bring their cases to forums that allow for videoconferencing proceedings as a strategic way to circumvent a defendant’s potential forum non conveniens argument in a motion to dismiss. This Note argues that videoconferencing technology allows courts to effectively transcend the restrictions of geography while mitigating arguments about the relative convenience of different forums. Creating more uniform rules for videoconferencing proceedings will ensure easier predictability and uniformity in the forum non conveniens analysis. Specifically, this Note recommends that Congress and the courts mandate standardized technological videoconferencing requirements and adopt the original understanding of the forum non conveniens doctrine for lower courts to more explicitly consider the benefits of technology when making a forum non conveniens determination.

National Center for State Courts, ‘Jury Trials in a (Post) Pandemic World: National Survey Analysis’ (June 2020)
Introduction: The coronavirus pandemic has had a profound impact on state courts’ commitment to meet their constitutional duty to provide fair, timely jury trials. As many states begin to reopen public buildings and courthouses, court administrators face an unprecedented challenge in understanding how public concerns about the ongoing pandemic will impact their ability to recruit a representative jury pool and to meet the public health expectations of the citizens they serve. In order to better understand these challenges and identify the most effective means of maximizing public confidence, the National Center for State Courts (NCSC) commissioned a national survey to explore issues including the impact of the coronavirus pandemic, health and family obstacles preventing potential jurors from reporting to their local courthouse, access to internet services for potential online alternatives to in-person jury service, and attitudes toward such remote services.

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.

Ng, Gar Yein, ‘Adaptation of Courts to Disruption’ (2023) 5(1) Law, Technology and Humans 111–120
Abstract: This article reflects on how courts in the USA and England have remained active and resilient in providing access to justice, or due process, during times of emergency and disruptive events. The focus here is not to define emergencies per se but to analyse the impact of emergencies and disruptive events that interrupt the functioning of courts and access to justice. The article provides a brief examination of some emergencies and disruptions and the expected responses to those interruptions. The question for this paper is: how do courts adapt (or are adapted) in times of emergencies that disrupt their ordinary operation, both in terms of continuity of operations and in terms of protection of rights through judicial review? This paper will primarily examine two common law examples (from England and the USA) of how the courts adapted to such disruptions.

Norton, Katherine, ‘Avoiding the Great Divide: Assuring Court Technology Lightens the Load of Low-Income Litigants Post-Covid-19’ (2021) 88(4) Tennessee Law Review 771-836 (forthcoming)
Abstract: Starting in March 2020, various state officials across the United States began to issue stay-at-home orders to slow the spread of the Covid-19 virus. Initially, these stay-at-home orders required non-essential businesses to close and individuals to remain home for a minimum of two weeks. This meant that restaurants, schools, and even courts closed their doors to the public. Even as businesses re-opened, safety concerns required courts to remain closed to the public given the volume of individuals that visit courthouses on a daily basis. As the pandemic continued, courts could not remain closed given the rights at stake. Accordingly, courts turned to technology, such as virtual conference platforms, electronic filing portals, and even email to virtually open the courthouse doors. This shift had the potential to either help or hurt unrepresented low-income litigants. Unfortunately, there was insufficient time to evaluate these changes and the impact they could have on individual litigants. Given the significant difficulties that already existed in the United States for low-income litigants to obtain access to justice, the quick embrace of technology has the potential to widen or close the justice gap depending on the path taken. The pandemic brings a choice to the forefront. Courts can utilize technologies for the convenience of the court, potentially creating a heavier burden on low-income litigants, or they can adopt technologies to create better access to justice for low-income litigants. Other businesses have thrived by turning to technology, especially during the pandemic, making their products and services more accessible to individuals of all socio-economic backgrounds. Grocery stores utilized technology to assure the availability of essential products and helped address safety concerns by utilizing mobile applications for ordering and delivery. Telemedicine, via mobile devices, grew as an option to help patients while avoiding exposure to Covid-19. These other industries have one thing in common in utilizing technology, they focus on the ‘consumer,’ the individuals who will be utilizing the technologies for their product (shoppers) or services (patients). If courts focus on the individual litigants as the consumer, not lawyers or judges, to determine how to best use technology, the opportunity exists to increase access to justice for low-income litigants. By failing to do this, the justice gap will grow.

Nwosu, Chinaza Duke, ‘Making a Case for the Abolishment of Fresh Hearing in Trial De Novo by the Application of Audio-Visual Coverage of Testimonies’ (SSRN Scholarly Paper No 4867227, 15 September 2023)
Abstract: The COVID-19 pandemic brought along with it a wave of transition in all of the world’s institutions and economies. These changes have hitherto been called for, albeit with very less attention paid to it because of the lack of a quick realization of the essence on the part of concerned stakeholders. However, the surge of the pandemic brought with it an imperativeness for the world to reconsider its conservatism on these overt yearnings. One of such is the increased use of technology in legal systems, which for some countries of the world, had become a norm to a recognizable extent. For Nigeria, given the ostensible insistence on analogue systems, players and stakeholders had to fully reconsider the situation. And so, because the pandemic tended implicitly to put the world to a stop, and the legal system had to find a way to go on lest there be anarchy, the system had to apply the use of technology in a more drastic way. Till date, albeit reluctantly, the Nigerian Legal System (NLS) having learnt a thing or two, have consistently driven itself towards ensuring a continuous growth alongside the dynamism (in terms of technology) of the society it tends to govern, like the allowance of virtual hearings. This work tends to bring to fore a practice of justice delivery in the NLS that yields one of the greatest injustice and inhumanity on litigants; the practice of fresh hearing in trial de novo. The writer is able to demonstrate the unjust hardship occasioned on litigants on the strength of this practice, and the writer posits that such hardships could be avoided by the application of audiovisual technology. This work employs the analytical and doctrinal methods of research, and alludes to primary and secondary sources of law, in its submissions.

Oksana, Kaplina and Sharenko Svitlana, ‘Access to Justice in Ukrainian Criminal Proceedings During the COVID-19 Outbreak’ (2020) 3(7) Access to Justice in Eastern Europe 115–133
Abstract: This article examines relevant issues of criminal proceedings in the context of the COVID-19 pandemic in Ukraine. In the wake of the COVID-19 pandemic, many governments have focused their efforts on protecting democratic values and ensuring not only the rights and legitimate interests of their people, but also their lives and health. At the same time, the pandemic has affected not only the economies of countries, but also their democratic development and fundamental rights, which have always been a priority of any democratic society. Courts and law enforcement authorities have faced challenges that have been and still are adequately addressed in order to ensure that the rights and legitimate interests of those seeking judicial protection are respected. Each state independently assessed the degree of risks and the extent of permissible restrictions on the rights and freedoms of persons involved in the proceedings, so the present study analyses the different approaches that have been applied. At the same time, documents of the Council of Europe for the Efficiency of Justice (CEPEJ) have gained high importance, because they, among others, have developed tools for Council of Europe member states to address the problems of ensuring access to justice in the pandemic. The generalization and widespread discussion of such experiences is important, because it will be useful for states to further improve existing legislation, taking into account best practices. Based on a study of changes introduced in the Ukrainian legislation to prevent the spread of the coronavirus disease, conclusions are proposed about the nature and extent of the restrictions, as well as the principles on which they should be based and the guarantees to be provided. Recommendations that will contribute to improving the regulation of access to justice in criminal matters in a pandemic are also proposed.

Offit, Anna, ‘Reimagining the Inclusive Jury’ (2024) 57(4) UC Davis Law Review 2691–2867
Abstract: At the height of the COVID-19 pandemic, everyday life for many Americans was upended. And yet, the jury trial remained viable — even vital. Faced with an era-defining public health disaster, courts innovated, embracing novel technologies and techniques to reimagine where and how justice might be made. But why did it take a pandemic to spur this kind of institutional creativity? Prior to the outbreak of COVID-19, people who were otherwise eligible to participate as jurors were routinely — and uncontroversially — struck or exempted from service due to limited mobility, vision and hearing loss, and caregiving responsibilities. Recent experience with hybrid and fully-remote trial formats shows that it is possible to include more of these prospective jurors in our jury system. Further, the drawbacks to using such innovations to accommodate individual jurors on a case-by-case basis are essentially nonexistent: successful hybrid and fully-remote proceedings deployed widely available digital technologies to offer effective, low-cost tools for jury trials in circumstances where some (or all) jurors could not be present physically. This Article argues that some of the extraordinary trial modifications that emerged as a result of the pandemic should not disappear with decreasing infection numbers. Rather, we should embrace the momentum of the past few years and ask how new technologies and techniques might be used to eliminate entrenched forms of juror exclusion and discrimination. Toward that end, this Article does four things. First, it examines the state of disability and caregiving-based exclusion in the United States, highlighting the shortcomings of both current protections and accommodations. Second, it reviews modifications to jury trials made during the pandemic, discussing five key innovations that made these trials successful: distributed participation, virtual private spaces, equipment provision, phasing, and livestreaming. Third, it shows how the incorporation of one or more of these innovations into post-pandemic trials would significantly lower extant barriers to jury service. Finally, it addresses potential concerns about modifying the jury trial — both constitutional and logistical — and reflects on the forms of exclusion that would remain even in the wake of creating a more inclusive trial.

O’Leary, Dyane, ‘Life Beyond Zoom: The Promise of Emerging Virtual Court Alternatives’ (2023) 62(3) Washburn Law Journal 587–616
Abstract: After briefly summarizing the current post-pandemic landscape of use of technology to support virtual court processes and the many positives of these new public paths to what was once only a physical brick and mortar location, this Essay will touch on some pitfalls and challenges that remain. Plenty has been said about the benefits of Zoom or challenges of remote proceedings; this discussion inches the ball forward beyond that, with a more concrete approach to actual tools in this space. This Essay offers a bird’s-eye view of three categories of emerging technologies supporting the modern era of virtual courts: online court forms automation, courtroom hybrid technologies, and immersive online ‘all-in-one’ platforms.

Oleh, Rozhnov, ‘Towards Timely Justice in Civil Matters Amid the COVID-19 Pandemic’ (2020) 3(7) Access to Justice in Eastern Europe 100–114
Abstract: This article is devoted to the analysis of procedural time limits transformation under pandemic conditions implemented in the legislation of Ukraine during the coronavirus pandemic of 2020, as well as the practice of their application in national courts. It is stated that inaccuracy and incompleteness in resolving important issues related to the extension and renewal of procedural time for the administration of justice under the quarantine creates obstacles to the implementation of the main tasks of civil proceedings. Inaccuracy in the regulation by procedural legislation of certain procedural terms, the possibility of their renewal and extension can significantly affect the movement of all civil proceedings as well as significantly impede the achievement of its goals.

Oliveira, António Mendes et al, ‘An Overview of the Portuguese Electronic Jurisdictional Administrative Procedure’ (2023) 12(5) Laws 84
Abstract: In this paper, we seek to define the Portuguese Electronic Jurisdictional Administrative Procedure and characterize the scope and success of its implementation in terms of access to justice and court efficiency. It encompasses different perspectives on the judicial system and the electronic administrative procedure, reflecting the diversity of its authors, and combines a theoretical approach and discussion with statistics produced with official judicial data. Therefore, it introduces the issue and its background and discusses the models and principles of electronic judicial procedure and its representation in the Portuguese judicial procedure and law. It also presents the Portuguese exceptional and temporary regime for conducting judicial hearings in the context of the COVID-19 pandemic, discussing its merits and presenting the corresponding judicial statistics. The paper concludes that the advent of electronic judicial procedure, driven by technological advancements and aiming to achieve procedural effectiveness and efficiency, represents a paradigm shift and a change in the nature of the legal process, i.e., an ontological transformation in the theory of the process that requires a robust conceptual framework, to ensure consistent interpretation and application of procedural law and to guarantee respect for equality and legal certainty.

Onţanu, Elena Alina, ‘The Digitalisation of European Union Procedures: A New Impetus Following a Time of Prolonged Crisis’ (2023) 5(1) Law, Technology and Humans 93–110
Abstract: The COVID-19 pandemic temporarily brought national and cross-border procedures to a standstill. Prior to the pandemic, the use of information and communication technology in court procedures was mostly voluntary and seldom used; although various developments were contemplated, they were slow to be financed and implemented. The pandemic and associated limitations gave digitalisation of procedures, including at the European Union (EU) level, a new impetus and increased authorities’ and professionals’ openness towards technology, including in cross-border judicial cooperation. The measures adopted at the time of writing focus on aspects such as communication between competent national authorities in taking of evidence and service of documents. These are expected to soon be extended to all other EU private international law instruments. In cross-border claims, e-CODEX will be the decentralised information technology system used in this process of facilitating access to justice with digital support. The aim is for identification and certifications of e-signatures and e-identities in this digital environment to be based on the eIDAS Regulation. While all these are welcome developments for facilitating and speeding up access to justice, this paper points out that the process still requires some years for its full implementation and may be exposed to various risks, complexities and challenges. Consequently, the process will not put an end to the EU fragmentation but will work around national and EU realities.

Osipov, Vladimir S and Iurii D Elanskii, ‘Judicial Institutions and Legal Services in the Post-COVID Period’ in Vladimir S Osipov (ed), Post-COVID Economic Revival, Volume II: Sectors, Institutions, and Policy (Springer, 2022) 385–395
Abstract: This chapter, ‘Judicial Institutions and Legal Services in the Post-COVID Period’, proclaims opinion of the authors that human and civil rights are not subject to revision under any circumstances, even a pandemic, and can’t be the basis for violation of human and civil rights. As well known, the judiciary is one of the branches of government in any democratic state. The independence and efficiency of the judicial system is a guarantee of the possibility of protecting one’s rights and suppressing violations of rights through the use of legal violence against the offender. No grounds can be offered to belittle the judiciary and its role in law enforcement. The provision of legal services contributes to the development of justice and high-quality law enforcement, therefore legal services—notarial, lawyer’s consulting, advocacy, are accompanying the processes of law enforcement and the establishment, change, and termination of legal relations. With this chapter, we conclude our large two-volume project looking at the prospects for post-COVID economic revival, and with the theme of this chapter emphasize the role of the court and legal services in the new environment of post-COVID development.

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.

Paduch, Andrzej, ‘The Right to a Fair Trial Under Article 6 ECHR during the COVID-19 Pandemic: The Case of the Polish Administrative Judiciary System’ (2021) 19(2) Central European Public Administration Review 7–25
Abstract: The aim of the study is to analyse the possibility of modifying procedural law in the context of the legislative measures taken in connection with the COVID-19 pandemic on the example of the Polish administrative judiciary system. The study shows that no regulation taking away the right to have the case heard in public is compliant with the ECHR. Public hearing is in fact a crucial aspect of the right to a fair trial. However, in order to mitigate the effects of a pandemic, states may introduce such solutions which – within the limits of art. 6 sec. 1 ECHR – modify the law.

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.

Parnigoni, Kristen E, ‘Shades of Scrutiny: Standards for Emergency Relief in the Shadow Docket Era’ (2022) 63(8) Boston College Law Review 2743–2780
Abstract: Historically, the Supreme Court’s docket of administrative orders and emergency petitions has existed largely in the shadow of its merits docket. During the COVID-19 pandemic, the Court increasingly employed this ‘shadow docket’ in highly politicized challenges to both state and federal public health policies that affected millions of Americans. The Court draws upon longstanding statutory authority to grant and withhold emergency remedies, usually in the form of preliminary injunctions and stays of injunction. By maintaining the status quo, these forms of equitable relief offer temporary remedies and prevent alleged harms to litigants while courts consider the legality of the action at issue. The nature of emergency relief, however, requires the Court to depart from its usual procedure of oral arguments, briefing, and lengthy consideration of the substantive legal issues. As a result, when the Court grants or withholds such relief, it rarely offers an opinion that explains the standard of review or the rationale behind the decision. Though the Court’s jurisprudence offers at least three standards that govern emergency remedies, the Court continues to issue relief without expressly adopting or employing a uniform standard. This Note discusses the historical standards of review and the variations in recent shadow docket rulings regarding public health measures. In an era where pandemics seem increasingly unavoidable, governments will turn to health measures to contain perceived threats. In challenges to these measures, governments and aggrieved citizens will rely on emergency remedies to prevent purported irreparable harms while courts determine the validity of such measures. This Note argues that the Supreme Court should adopt a new, two-part standard that governs this important remedy, especially as applied to petitions for emergency relief during public health crises.

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.

Paulson, Kristi J, ‘Mediation in the Covid-19 Era: Is Online Mediation Here to Stay?’ (2021) 51(1) Southwestern Law Review 142–155
Abstract: Though a return to in-person mediation may be inevitable, this Essay outlines how online mediation worked and how it worked well. Online mediation became something we had to do, but soon that will no longer be true. Part II describes the remote mediation process and then explains how to conduct these types of meditations. The question now facing the legal community is whether we should continue to use online mediation and develop it more going forward in the future. Part III explores this question by detailing the benefits and challenges of online mediation. Because COVID-19 variants are ever-evolving, practical insight on how to accomplish a successful remote mediation will be delineated in Part IV. It includes ten tips that can aid mediators and others attempting to settle disputes online. Thus, online mediation can be done, it can be successful, and there can be benefits to doing a virtual process. Is it the wave of the future? Ultimately, Part V concludes that online mediation will become a permanent method of alternative dispute resolution.

Peacock, Ian and Emily Ryo, ‘A Study of Pandemic and Stigma Effects in Removal Proceedings’ (2022) 19(3) Journal of Empirical Legal Studies 560–593
Abstract: This study examines how a rapid change in social perceptions of a national-origin group triggered by the COVID-19 pandemic influenced immigration judges’ decision-making in US removal proceedings. Using originally compiled court data on removal proceedings decided between 2019 and 2020, we applied a difference-in-differences framework to produce three key findings. First, consistent with theory of event stigma, Chinese respondents experienced a significantly higher removal rate during the early pandemic period. Second, consistent with theory of associative stigma, East and Southeast (E/SE) Asian respondents also experienced a significantly higher removal rate during the early pandemic period. Third, the removal rate declined for both Chinese and E/SE respondents during the later pandemic period, but this decline was more gradual and lagged for E/SE Asian than for Chinese respondents. Finally, increases in the number of cases involving Chinese respondents increased the removal rate for E/SE Asian respondents during the early months of the pandemic. The last two findings suggest that associative or indirect stigmatization may be harder to combat than direct stigmatization owing to the implicit nature of bias underlying associative stigma. This study highlights the socially constructed nature of national origin groups, and the importance of both direct and indirect stigmatization in the production of social inequality.

Perlingeiro, Ricardo, ‘International Judicial Cooperation in Response to Transnational Crises’ in Emilie Ghio and Ricardo Perlingeiro (eds), Rethinking the Role of Law and Legal Institutions in Times of Crisis (forthcoming), 2021) 34–41
Abstract: This essay mainly focuses on global crises that give rise to conflicts that cross borders and therefore call on States to perfect their administrative and judicial tools of international cooperation to ensure that the law is applied and rights are protected in cross-border areas. The author intends to discuss this topic in three sections: 1. What contemporary international judicial cooperation is like; 2. The extent to which international judicial cooperation depends on harmonization and uniformity among jurisdictions; 3. Examples of how the 2007-2009 financial crisis and multifaceted crisis caused by the Covid-19 pandemic increased international judicial cooperation and how they managed to stimulate convergence among jurisdictions.

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?

Piątek, Wojciech, ‘A Right to a Public Hearing in Times of Emergency: Online or Physical?’ (2023) 14(2) International Journal for Court Administration Article 6
Abstract: One of the fundamental principles of all court proceedings is the right to a public hearing. In times of emergency, due to health, safety or environmental conditions, this right may be reduced or even temporarily excluded. The aim of the paper is to answer whether possible restrictions of this right are in accordance with the European and national standards of the rule of law. The phenomenon of public hearings will be presented from the perspective of the administrative judiciary, whose obligation is to exercise control over public administration on a basis of legality. This phenomenon offers the potential for dispensing with public hearings to a greater extent than in the case of civil or criminal proceedings. In the paper, the detailed aspects and defects of online hearings will be analyzed. In the final part, the thesis on the significance of physical hearings will be defended. Especially in times that are not defined as emergencies, this type of hearing should prevail over the online version, being more natural and better in terms of providing both courts and parties to the proceedings broad possibilities to communicate.

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.

Piszcz, Anna, ‘COVID-19 Pandemic-Related Arguments in Polish Civil Litigation’ (2022) 35(3) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 1215–1232
Abstract: The aim of this paper is to analyse the legal record on civil litigation from mid-March 2020 to mid-July 2021 and examine COVID-19 pandemic-related arguments in a sample of litigated cases heard in Polish courts, more precisely 41 cases. In an attempt to establish the number and types of court cases in which such arguments have been raised, the population of individual case records was accessed electronically from the Ordinary Courts Judgments Portal (Pol. Portal Orzeczeń Sądów Powszechnych). The analysed research material consists of texts of written justifications published along with rulings of courts of the first instance in the Portal, except for texts regarding criminal cases and widely understood labour cases. This paper refers to certain theoretical aspects of argument and argumentation. Then, it sheds light on the use of COVID-19 pandemic-related arguments by the parties involved in litigation—as reported by the courts in written justifications—considering, amongst others, whether those arguments were found convincing by the courts. Based on a survey of relevant cases, an attempt was made to identify categories of COVID-19 pandemic-related arguments of the parties involved in litigation, raised in their legal submissions. Also a look into the tendencies in this regard was taken to see whether any patterns emerge and it is possible (or not) to discern different trends in the analysed phenomena.The point of the analysis in this article is both descriptive and normative.

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.

Poretti, Paula and Vedrana Švedl Blažeka, ‘Remote Justice in Coronavirus Crisis: Do the Means Justify the Ends, or do the Ends Justify the Means?’ (2022) 6 EU and Comparative Law Issues and Challenges Series (ECLIC) 39–65
Abstract: The coronavirus related crisis affected severely all aspects of life and judiciary is no exception. The world has been confronted with new challenges. New circumstances have created significant impact on the functioning of access to justice. New ways of administrating the legal system were introduced in the last decade, allowing for the use of the means of electronic communication, reducing certain stages of court procedures, opting for solutions for peaceful dispute settlement and promoting out-of-court dispute resolution. However, the coronavirus caused, beyond any doubt, severe delays in court proceedings and even shut down courts in some European Union Member States, Croatia included. Thus, additional efforts were required in order to ensure remote justice to citizens and businesses. More importantly, it called for a swift response, issuing and applying emergency measures, to safeguard the right to access courts and provide for effective administration of justice. The paper thus seeks to explore the ways in which European Union Member States responded to emerging challenges and the consequences these challenges had on administration of justice. Croatian example will be introduced specifically due to obvious struggles in handling the coronavirus caused difficulties in national judiciary system. Along with the analysis of measures taken, there are several questions, which need to be answered. What was the level of readiness of the Member States’ judiciaries for providing justice by means of electronic communications, with Croatia in focus? What are the effects of measures taken in Croatian judiciary system? Should it be left to the courts or other competent bodies to take actions on a case-to-case basis in order to provide the necessary protection of procedural rights to parties? In terms of the effect of the emergency measures, do they allow for the same or similar quality of remote justice? In conclusion, the paper will try to answer the aforementioned questions, deliberate on the efficiency of measures taken in response to the coronavirus crisis, with Croatia in focus and possibilities of future improvements.

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.

Povylius, Kristijonas, ‘Virtual Criminal Proceedings: The Lithuanian Experience’ (2024) 17(1) Baltic Journal of Law & Politics 21–45
Abstract: Although remote criminal proceedings have existed in Lithuania for some time, they have never been used as extensively as during the COVID-19 pandemic. The pandemic demonstrated that remote criminal proceedings could help prevent the spread of infectious diseases and at the same time facilitate the criminal justice process by eliminating, for example, the need to spend time travelling to the location of the proceedings or wasting other resources. For this reason, even after the COVID-19 pandemic, remote criminal proceedings remained popular. However, the remote criminal process is not a neutral substitute for the in-person criminal proceedings. It has an impact on the traditional paradigm of criminal proceedings that is not always positive. This article discusses the regulation of remote criminal proceedings in Lithuania by presenting the findings of an empirical study of Lithuanian lawyers’ perspectives on the remote criminal process which surveyed more than 100 Lithuanian lawyers (judges, prosecutors, lawyers, and pre-trial investigation officers). The article discusses the main advantages and disadvantages of remote criminal proceedings noted by the professionals and identifies legal problems caused by such mode of proceedings. The paper seeks to demonstrate that the development of remote criminal proceedings should be carried out with caution, taking into account its impact on the quality of criminal proceedings and the rights of the participants.

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.

Rahmana, Syed Ahmed Khabir Abdul and Saiful Akmal Suhaimi, ‘The Legal Implications of Covid-19 in Malaysia: Selected Issues’ (International Proceeding: Law and Development in the Era of Pandemic, Faculty of Law, Universitas Islam Indonesia, 28 November 2020, 2021) 125–131
Abstract: The COVID-19 pandemic is making the world apparent by its devastating character. The pandemic has affected people physically and mentally; the court institutions and the business world are not an exception. The pandemic has undoubtedly impacted business operations worldwide, particularly in countries with a more critical scale of contagion. To help flatten the curve of infection, Malaysia has imposed an aggressive movement control order (MCO) nationwide, effective from March 18, 2020. This paper provides prospective readers on the impact of COVID-19 on the court institutions and contractual obligations in Malaysia. With the enforcement of the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020, also known as the COVID-19 Act, relevant provision in several statutes have been modified for temporary measures to reduce the impact of Coronavirus Disease 2019 (COVID-19) in Malaysia. This paper uses doctrinal legal research to study the impact of COVID-19 pandemic in Malaysia, mainly based on library research, whereby a qualitative analysis is adopted to assess improvements of the law in Malaysia concerning court institutions and contractual obligations amid COVID-19 crisis. This paper aims to provide information on the adaptation of court institutions and the law governing contractual obligations in Malaysia amid the global pandemic. This paper also aims to provide an overview of the measures taken by the Malaysian Government in response to COVID-19. The authors would like to acknowledge the efforts and dedication of all front liners during this COVID-19 crisis. To all those who have experienced difficulties during the pandemic, always remember you are not alone.

Rajendra, Josephine Bhavani and Ambikai S Thuraisingam, ‘The Deployment of Artificial Intelligence in Alternative Dispute Resolution: The AI Augmented Arbitrator’ (2022) 31(2) Information & Communications Technology Law 176–193
Abstract: Artificial Intelligence (AI) is reshaping the way legal services are delivered, which includes arbitrators in Alternative Dispute Resolution (ADR) proceedings. This trend is being accelerated by the coronavirus (COVID-19) pandemic, with many disputes being conducted online. Previously, legal tasks have usually been associated with human lawyers; however, increasingly autonomous computer systems may soon replace arbitrators in the delivery of legal services in ADR proceedings. This article evaluates the extent to which the deployment of AI may augment arbitrators in ADR proceedings and provides an analysis of how much legal work may be effectively performed by AI in ADR proceedings. The central focus is on the capabilities of AI systems against human arbitrators and the requirement for human intervention and supervision of AI systems deployed in ADR proceedings. This article extends the debate on AI and arbitrators where the focus is on the augmentation of legal services in ADR with AI systems and the implications therein. The doctrinal approach is employed to conduct the study. The primary objective of this article is to evaluate the extent to which the deployment of AI systems may augment the efficiency and productivity of legal services in ADR and to highlight the proposed recommendations.

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.

Riyawan, Dara Puspita, Jennifer Clarence and M Raihan S Lexmana, ‘Law in The Era of Digitalization and Covid-19 Pandemic’ (2023) 6(Special Issue) Veteran Law Review 41–53
Jurisdiction: Indonesia
Abstract: Legal developments in Indonesia have an impact on changes in various aspects of the law, such as changes in the form of settlement in the judiciary. Some judicial institutions have indeed implemented a modernization process, but not a few judicial institutions have still used the same litigation method for decades. In the midst of the Covid-19 pandemic, some parts of the justice system experienced an increase in workload, while other parts experienced a decline where there was an increase in requests in the criminal justice sector to consider the repatriation of prisoners in order to reduce the population in prisons. The method used in making the paper entitled ‘Law in the Era of Digitalization and the Covid-19 Pandemic’ is the historical method. This method relies on four activity steps, namely: Data collection (Heuristics), Source criticism (Verification), Interpretation (Interpretation), and Historical Writing (Historyography). The purpose of this journal’s research method is to find out the development and application of lawin the digitalization era and after the Covid-19 pandemic. The result of the conclusion of this method is that the Covid-19 pandemic cannot prevent the fairest enforcement of laws. In this digitalization era, remote trials can still be carried out despite the Covid-19 pandemic. In this era of digitalization, it is easier to implement legal processes in Indonesia.

‘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.

Ringsmuth, Eve et al, ‘SCOTUS in the Time of COVID: The Evolution of Justice Dynamics during Oral Arguments’ (2023) Law & Policy (advance article, published online 18 January 2023) pre-published version of article available on SSRN]
Abstract: We assess changes in oral arguments at the US Supreme Court precipitated by the COVID-19 pandemic and the degree to which those changes persisted once the justices acclimated to the new procedures. To do this, we examine whether key attributes of these proceedings changed as the Court experimented with telephonic hearings and subsequently returned to in-person oral arguments. We demonstrate that the initial telephonic forum changed the dynamics of oral argument in a way that gave the chief justice new power and reconfigured justices’ engagement during these proceedings. However, we also show that the associate justices adapted to this new institutional landscape by changing their behavior. The findings shed light on the consequences of significant, novel disruptions to institutional rules and norms in the government and legal system.

Robertson, Christopher T and Michael Shammas, ‘The Jury Trial Reinvented’ (2021) 9(1) Texas A&M Law Review 109–164
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.

Robinson, Daniel, ‘Confrontation During COVID: A Fundamental Right, Virtually Guaranteed’ (2022) 12(1) University of Miami Race & Social Justice Law Review 116–140
Abstract: The novel threats posed to our criminal justice system by the COVID-19 pandemic and attendant shutdowns of courts beg the question of whether our must fundamental pillars of law can withstand the ultimate test of time. And inherent in the ultimate test of time is the ultimate test of technology—this is, will there come a time that technology outgrows the confines of our legal landscape? Consider this: The United States Constitution guarantees every criminal defendant the right to confront their accuser in court; yet, for a substantial period of time in 2020, court, as we knew it, was nothing more than a live, two-way, video-telecommunications stream. Is confrontation via live, two-way video-telecommunication sufficient to comport with the fundamental rights guaranteed to criminal defendants under the Constitution? Fortunately, the era of the Coronavirus Court has largely come to an end with courts re-opening and the mass-dissemination of vaccines and booster shots worldwide; however, the question remains whether we, as a society, are prepared to recognize that the legal landscape of the criminal justice system is changing. And moreover, whether the law, as it is understood and applied today, contemplates this idea that traditional notions of fair play and substantial justice are ever-developing in light of technological and societal advancements.

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.

Roth, Andrea, ‘The Fallacy of “Live” Confrontation’ [2023] (5) Illinois Law Review 1657–1673
Abstract: As the COVID pandemic besieged court systems, many commentators insisted that ‘virtual’ procedures were undesirable or even unconstitutional, given a criminal defendant’s right to be ‘confronted with’ the witnesses against him. Proposals for modified procedures were judged largely by their fidelity to ‘liveness.’ This Essay explores an underappreciated dark side to equating the right of confrontation with ‘liveness.’ In fact, COVID’s lesson should be precisely the opposite: confrontation should be recognized not merely as a right to specific in-person trial procedures but as a right to meaningful scrutiny of the government’s proof. As such, the right of confrontation will often be better protected through ‘virtual’ forms of scrutiny outside, rather than inside, the courtroom, from access to witnesses’ prior statements, to a broader right to impeach with extrinsic evidence, to a right to impeach nonhuman evidence that cannot be cross-examined ‘live.’ The Essay draws upon similar critiques of ‘liveness’ from the history of sound reproduction, in the context of music.

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.

Rumel, John E, ‘The Right to Jury Trial in Idaho Civil Cases: Origins, Purpose, and Selected Applications’ (2022) 65(5) Advocate 26–30
Abstract: The article will explore the legal origins of the right to jury trial in Idaho and will delineate its laudatory purposes in both criminal and civil cases. It mentions selected decisions by the Idaho Supreme Court evaluating the jury trial right in civil cases and case law on the effect of judicial COVID-19 related orders.

Sabbeth, Kathryn, ‘Eviction Courts’ (2022) 18(2) University of St. Thomas Law Journal 359–404
Abstract: This Article examines the legal mechanics of the courts that issue eviction orders. It analyzes these courts in the context of the COVID-19 pandemic and the federal eviction moratoria. The eviction phenomenon preceded the pandemic, but the pandemic exaggerated many of its features. How the eviction courts responded to the eviction moratoria reveals a great deal about how these fora have been functioning all along. While the eviction moratoria were important, the design of eviction courts limited their impact.

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, Alisson, ‘“It’s the End of the World as We Know It”: Redrafting Amendment to Federal Rule of Criminal Procedure 26 to Allow Remote Testimony’ (2024) 39(2) Touro Law Review 605–638
Abstract: During the COVID-19 pandemic, when society fought an aggressive and deadly virus, our connection to the outside world became predominantly virtual. Videoconference technology became essential in state and federal civil judicial proceedings. In light of the unprecedented challenges presented by the pandemic and its long-lasting impact on the criminal justice system, this Article argues for amending Federal Rule of Criminal Procedure 26 to permit remote witness testimony when a witness is unavailable.

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.

Saxena, Priti, ‘Technological Innovations in India’s Legal Sector for Access to Justice During and Post Pandemic’ [2024] Law and Development Review (advance article, published online 7 February 2024)
Abstract: The COVID-19 pandemic has had a significant impact on the legal landscape in India, particularly in the context of technological innovations during pandemic. The pandemic has accelerated the adoption of digital technologies in various sectors, including the legal sector. The Indian government and the judiciary have introduced several measures to promote digitalisation and technology, including the introduction of online courts and the development of digital infrastructure for the legal system. The measures to promote the use of digital technologies and improve access to justice were the key developments. The introduction of e-courts and virtual hearings using video conferencing technology in the Supreme Court and several High Courts in India were the landmark steps towards justice delivery system during pandemic. Even subordinate courts have also introduced e-filing in which the litigants were required to file their documents electronically, and the court clerk reviews the documents and verifies them. Once the documents were verified, they were uploaded to the court’s electronic case management system. With the use of technology, the virtual hearing conducted using video conferencing and the litigants participated from their homes or offices. During the hearing, the judge, lawyers and litigants saw and heard each other through their respective screens. After the hearing for record-keeping, the courts prepare a transcript of the proceedings and save it in the electronic case management system. The litigants could access the transcript and other documents related to the case through the online portal. Further, the government has introduced several measures to improve the digital infrastructure and platforms for the legal sector. National Judicial Data Grid, a database of orders, judgements and case details of 18,735 District & Subordinate Courts and High Courts created as an online platform under the e-Courts Project. The government has also launched several legal information portals that provide access to legal resources and information, such as case law, legal databases and law journals. The adoption of digital technologies is likely to continue to play an important role in improving access to justice in India in the post-pandemic era that has several advantages in saving time and costs associated with physical travel to the court. It also reduces the backlog of cases and improves access to justice for litigants who live in remote areas. Additionally, virtual hearings provide greater flexibility to litigants and lawyers, who can participate in court proceedings from anywhere in the world. The pandemic has highlighted the potential of online dispute resolution (ODR) to provide an efficient and cost-effective alternative to traditional dispute resolution mechanisms. The Indian government has introduced a draft policy on ODR to promote the use of technology in dispute resolution. So in this background, how these courts worked during pandemic time, what changes made and are made in the legal sector will all be explored with the role of technology in access to justice and dispute resolution during and after pandemic.

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.

Schmit, Jude and Rachel Albertson, ‘Witnessed From the Justice Bus: Covid Drove Equal Justice Off the Road, But Technology Grabbed the Wheel and Is Steering Us Into the Future’ (2022) 48(4) Mitchell Hamline Law Review 1173–1187
Abstract: This Article spotlights Legal Aid Service of Northeastern Minnesota’s (‘LASNEM’) response to the access-to-justice crisis in the age of COVID19. The first part briefly summarizes the civil justice gap, focusing on potholes littering LASNEM’s roads. The second part discusses the initiatives adopted by LASNEM since the pandemic struck, including the Justice Bus, Legal Kiosks, and the partnerships made with the courts and community partners to participate in eviction-diversion pilots. In short, this Article argues that bridging the access-to-justice gap in rural Minnesota requires a multidimensional approach utilizing technology as the vehicle.

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, ‘Evolution and Emerging Issues in Consumer Online Dispute Resolution (ODR)’ (SSRN Scholarly Paper ID 4147917, 27 June 2022)
Abstract: Recent years have seen new technologies disrupt many established industries and institutions, continually testing our imaginations and expectations. Accordingly, it is no surprise that technology is disrupting the law. Moreover, the Covid-19 pandemic generated new disputes and a need for expanded access to online means for resolving those disputes, especially for consumers. As a result, lawyers, judges, software developers, and policymakers have been exploring ways to utilize technology in expanding access to the courts and dispute resolution. With this in mind, scholars and policymakers have argued for ‘online dispute resolution’ (ODR) to expand access to justice (A2J). This chapter discusses evolution of ODR in recent years, as well as emerging issues in ODR that deserve attention in order to craft ODR that lives up to the promise in advancing A2J.

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 Colin Rule, ‘2023: The Year of OArb’ (Ohio State Legal Studies Research Paper No 754, 18 January 2023)
Abstract: Recent years have seen new technologies disrupt many established industries and institutions, continually testing our imaginations and expectations. Accordingly, it is no surprise that technology is disrupting the law, and arbitration. Moreover, the Covid-19 pandemic generated greater interest and comfort with Online Arbitration (‘OArb’). Nonetheless, most focus on Zoom arbitration, instead of exploring the full scope of what OArb may mean as we continually move toward the future. This short thought piece hopes to generate discussion as we use system design and problem-solving perspectives to reimagine access to justice (A2J) through OArb.

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.

Serhii, Prylutskyi and Strieltsova Olga, ‘The Ukrainian Judiciary under 21st-Century Challenges’ (2020) 2/3(7) Access to Justice in Eastern Europe 78–99
Abstract: Thirty years after the declaration of its independence, Ukraine, unfortunately, has not yet managed to modernize its legal system to a level of proper efficiency. This is largely due to the dichotomy of the previous international strategy of our state between the two vectors of development, the old eastern and the new western one, which actually retarded the movement forward. The contradiction between these views on the prospects of Ukraine’s development of the younger generation and the generation that continued to carry the memory of its historical past, was no less significant. Corruption is deeply rooted in the system of public administration and was purposefully supported by internal and external opponents of Ukraine’s independence and overcoming these relics is a fundamental task in asserting sovereignty. Remnants of the post-Soviet legal doctrine, which preserve the defining categories of judicial law in an ossified form, such as ‘court’, ‘judiciary’, ‘justice’, have become a serious obstacle to the formation of the new state and its legal system. This significantly limits the ability to ensure effective legal regulation of relations connected with the administration of justice in the state. An overview of the theoretical and normative foundations that underlie the Ukrainian judiciary and the justice system points to obvious gaps and inconsistencies. It is indisputable that the modernization of the legal system of Ukraine, in particular, in the sphere of the organization of the judiciary, requires a renewed scientific vision based on the doctrine of judicial law and which should attempt to combine Ukrainian traditions and the Western European viewpoint.

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, ‘Healing Our Republic with COVID-19 Era Innovations: Online Jury Trials as a Barrier to Democratic Backsliding’ [2022] Kansas Journal of Law & Pubic Policy (forthcoming)
Abstract: The coronavirus (Covid-19) pandemic reshaped modern life. Due to its unprecedented demands, including ‘social distancing,’ long-standing institutions faced an abrupt choice: adapt or die. Across organizations, a key adjustment involved using the Internet to ensure continued functioning. Because the pandemic exacerbated our interrelated (a) democratic and (b) epistemic crises, and since the Internet usually exacerbates those crises, the courts’ pandemic-era integration of the Internet represents a rare instance where the Internet did not hurt but instead helped democracy. Necessity is the mother of invention. The realization in mid-2020 that Covid-19 was here to stay forced courts to evolve. Temporary changes fueled by necessity and marred by doubt were soon embraced for convenience; courts became reliant on platforms like Zoom to function. Benefits for lawyers, judges, and jurors included convenience, expanded access, increased efficiency, heightened transparency, and civic-education opportunities. The Internet’s potential to increase the frequency and transparency of jury trials is exciting. Hurdles obviously exist. Scholars have expressed special trepidation at the prospect of online criminal trials, flagging (for example) the Sixth Amendment’s Confrontation Clause (can a defendant ‘confront’ witnesses in cyberspace?). Leaving constitutional questions aside, there were privacy concerns; for instance, what if jurors or third-party hackers record proceedings, such as jury deliberation, meant to be confidential? Nonetheless, other factors — e.g., the constitutional guarantee that gives criminal defendants the right to a ‘speedy trial’ — ultimately trumped concerns surrounding the use of technology to resolve legal disputes. As the pandemic recedes and the exigencies that motivated courts to become more flexible dissipate, courts that have already (successfully) held online criminal and civil jury trials may backpedal. Such backpedaling would be a grave error. For even as our pathogenic crisis ends, our democratic and epistemic crises are nowhere near closure. And increasing the number of jury trials — in decline for most of the 20th century — can reinvigorate an institution that political philosophers such as John Stuart Mill & de Tocqueville, as well as the Founders, viewed as essential to this fragile, invaluable American experiment. Covid-19 revealed that institutions — even ones as traditionalist as courts — are not static. They are dynamic. Their ability to weather crises depends on their willingness to change. The constitutional and pragmatic problems posed by pandemic-era modernization efforts in the courts apply to lawyers, scientists, and cyber-security experts. Such problems have been extensively discussed. Still undiscussed are the pro-democratic implications of the continued, post-pandemic use of the online jury. Although most might think the Internet divides rather than unites society, the benefits of merging the Internet with courts, directly related to our most recent pathogenic crisis, have the potential to help solve our (a) epistemic and (b) democratic crises, increasing social cohesion at a time when Americans are more polarized than ever. This Article argues, broadly, that our democratic and epistemic crises are not intractable; for the Internet is not inevitably a source for social entropy but can be a fountain of good. We must retain the use of online jury trials post-pandemic, for the benefits of juries, beacons of participatory, deliberative democracy and epistemic rigor, can shock us out of our dual crises and help the United States stand tall once again — an imperfect yet vigorous democracy.

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.

Shymansky, Ryan, ‘Justice Diseased Is Justice Denied: Coronavirus, Court Closures, and Criminal Trials’ (2020) 122(3) West Virginia Law Review Online 11–12
Abstract: This Article aims to consider the immediate impacts of the novel coronavirus on criminal defendants’ access to speedy trials by jury. In particular, it aims to examine whether court closures and delays could affect the substantive rights of criminal defendants—and particularly pretrial detainees—to a speedy and public trial by jury. To date, very little scholarship has considered this question. Yet the ideal of a speedy trial by jury is deeply embedded in our Constitution and our judicial system, and the potential for a pandemic to limit or negate that right should ring scholastic and judicial alarm bells.

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.

Singh, Pranjal and Garvit Ramchandran, ‘Judicial Activism during the Time of Corona Crisis’ (2021) 1(4) Jus Corpus Law Journal 541–558
Abstract: The infection of Coronavirus is influencing cases multiply and has additionally injured the courts the nation over as judges, promoters, and disputants are attempting to accomplish equity under the law while adjusting public security. The fast spread of this infection has prompted the shutting down of Courts and Tribunals in the nation to keep away from human affiliation and to check the spread of novel Covid in the country. Notwithstanding, the Central Government and Judiciary have found a plural way to give help to individuals who are confronting this extraordinary test. Even though the courts have been closed down, the Hon’ble Supreme Court of India has chosen to take up pressing issues through virtual methods so the supporters and prosecutors don’t need to show up truly in the court in this current circumstance. The Hon’ble Supreme Court of India has likewise guided the individual Bars to advance virtual procedures and e-recording. Indeed, even the Courts Suo-moto, taking insight of the difficulties being looked by the legal counsellors to introduce under the steady gaze of the Court genuinely for the recording of particular Appeals, Petitions, and so forth and has expanded the time of constraint until its further request, with this, desires to battle against Covid and put estoppel on its extending regional locale. This paper discusses the troubles looked by the legal activism component because of pandemic and features the actions taken on by the Supreme Court and High Courts to decrease the impact of this vindictive disease.

Singh, Sukhsimranjit, ‘In the Shadow of the Pandemic: Unearthing Unequal Justice Vis-à-Vis Dispute Resolution’ (2022) 68(1) Washington University Journal of Law and Policy 95–107
Abstract: The pandemic has not been generous to any of us. It has stolen lives, eaten life savings, broken relationships, and devastated entire families. It has also unearthed the often-unseen power imbalances in human conditioning. In this Essay, Singh explores how the COVID-19 pandemic has unearthed unequal access to dispute resolution opportunities for racial and cultural minorities. The author connects his own research with a larger question: how has the pandemic unearthed deep structural imbalances in access to privilege due to economic inequalities for racial and cultural minorities? We often say that dispute resolution mechanisms—particularly mediation and arbitration—provide access to justice, but this Essay questions that myth in the shadow of the pandemic.

Skolnik, Terry, ‘Criminal Law During (and After) COVID-19’ (2020) 43(4) Manitoba Law Journal 145–180
Abstract: In response to the COVID-19 pandemic, governments across the globe are implementing drastic physical distancing measures with wide-ranging implications. Courts are increasingly confronted with novel pandemic-related issues that are significantly altering the criminal justice system. This article explores the current and potential impacts of COVID-19 on three specific areas of the criminal law: the scope of certain crimes, bail, and punishment. It advances three core arguments. First, the pandemic creates a risk that courts will expand the breadth of crimes such as assault and aggravated assault for conduct such as coughing. It provides compelling reasons why courts must limit the scope of these criminal offences and why judges should not extend the legal framework that applies to HIV non-disclosure to COVID-19 transmissions. Second, the pandemic is changing the bail process. Due to COVID-19 outbreaks in detention centres, courts are rethinking whether pre-trial custody is necessary to maintain public confidence in the criminal justice system. More than ever, judges consider the interests of defendants and detainees when interpreting the concept of ‘public confidence’ – a positive change that limits recourse to pre-trial custody. Third, the pandemic is impacting sentencing as judges move away from custodial punishments. COVID-19 highlights why incarceration and financial penalties disparately impact defendants, which raises concerns regarding proportionality and retributive justifications for punishment both during and beyond the pandemic. Ultimately, this article shows why judges, policy makers, and justice system actors should seize on this unique opportunity to generate lasting positive changes to the criminal justice system that are taking place during the pandemic.

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, Lindsay R et al, ‘Pandemic Procedures: Adapting Problem-Solving Court (PSC) Operations and Treatment Protocols During COVID-19’ (2023) 53(3) Journal of Drug Issues 490–498
Abstract: With an ongoing pandemic claiming hundreds of lives a day, it is unclear how COVID-19 has affected court operations, particularly problem-solving courts (PSCs) which have goals rooted in rehabilitation for participants in their programs. Even with practical recommendations from national organizations directing courts on how to manage COVID-19, whether and how PSCs met the needs of PSC participants during this time is underexplored. This study, drawn from a larger national study using a survey of PSC coordinators, examines the COVID-19 responses of PSCs to remain safely operational for participants. A sub-sample of survey respondents (n = 82 PSC coordinators) detailed how the COVID-19 pandemic led to changes to their court and treatment operations amidst the constraints of the pandemic. The courts’ shifts in policy and practice have important impacts for court participants’ treatment retention and success in the PSC program, and these shifts need more in-depth research in the future.

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 Online Criminal Trial as a Public Trial’ (2021) 51(1) Southwestern Law Review 116–132
Abstract: Technical barriers to conducting criminal trials online may have been largely overcome, but legal barriers still exist. This Essay addresses one of those legal barriers: whether the public’s ability to attend a criminal trial online—via Zoom or some other service—is sufficient to satisfy the Sixth Amendment’s right to a public trial. This Essay concludes that the Constitution should treat online attendance as sufficient to satisfy the requirement of a public trial. This may be an ambitious claim, however; there are certainly arguments to the contrary.

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.

Spillane, Ed, ‘The End of Jury Trials: Covid-19 and the Courts: The Implications and Challenges of Holding Hearings Virtually and in Person During a Pandemic from a Judge’s Perspective’ (2021) 18(2) Ohio State Journal of Criminal Law 537–554
Abstract: Covid-19 has vanquished many institutions. Those who have not completely succumbed to the virus’ onslaught have been slow to recover their usual form. Courts have been no different. Initially, we closed our court in mid-March 2020. Virtually every court in Texas and the United States by late March had done the same. At that point, those embracing technology attempted to adapt Zoom and Zoom-like virtual meeting places to the judiciary. By late April and May, many courts reported that the virtual court of Zoom allowed courts to move some dockets. As a judge, I have been able to do multiple arraignments, sentencing hearings, pretrials, and even bench trials via Zoom. By the end of May, judges became eager in various states to have jury trials, in-person court hearings, and even hybrid virtual hearings. This almost seemed to follow the desire of citizens to get out of quarantine and live ‘normally’ again. I’ll examine the challenges and process of trying to ‘hold court’ during the pandemic.

Stein, Elizabeth, ‘An Exacerbated Power Imbalance: The Danger in Allowing AI to Render Arbitral Awards in Employment Arbitration’ (2024) 50(2) Mitchell Hamline Law Review 423–452
Abstract: The article focuses on examining the potential dangers associated with using artificial intelligence (AI) to make arbitral decisions in forced employment arbitration. Topics include the functionality of AI, concerns about its use in the legal field, and the application of AI risks to forced employment arbitration, along with recommendations for its regulation in the future. It discusses the increased adoption of AI accelerated by the COVID-19 pandemic.

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.

Svitlychnyy, Olexander P et al, ‘Electronic Justice as a Mechanism for Ensuring the Right of Access to Justice in a Pandemic: The Experience of Ukraine and the EU’ (2023) 37(3) International Review of Law, Computers & Technology 325–340
Abstract: The article analyzes the measures implemented by countries in the field of access and administration of justice, focusing on the use of electronic justice as a comprehensive remote mechanism during the COVID-19 pandemic. The study examines the experiences of the European Union and Ukraine to understand the effectiveness of electronic justice in ensuring the right of access to justice. Various scientific methods such as legal-statistical, systematic, formal-legal, and cybernetic methods were employed in the study. The analysis reveals that the measures taken by countries to prevent restrictions on human rights in the judicial system are not perfect and require further development. The study identifies key issues in the practical implementation of electronic justice and provides specific recommendations for improvement. The research fills a gap in comprehensive scientific studies on continuous and effective consideration of court cases during the pandemic. The practical and scientific value of the article lies in its relevance to practitioners and scholars worldwide, who are interested in the realization of the right of access to justice and the functioning of electronic justice. The national experiences and recommendations presented in the article can also be applied by European countries to enhance the effectiveness of their electronic justice systems.

Sweat, Bryanna, ‘A Discussion of Constitutional Protections in a Pandemic-Susceptible World’ (SSRN Scholarly Paper No 4357392, 23 December 2022)
Abstract: The Constitution grants us the right to a speedy trial and the right to confront witnesses against us. This comment addresses the following question: Can a litigant’s constitutional protections be held intact in a pandemic-susceptible world? The author discusses the historical background of these two important constitutional protections and illustrates how COVID-19 impacted these rights in the criminal justice system. This topic is important because there will be another pandemic, and when that happens, the criminal justice system needs to be equipped to handle it. The comment discusses four topics: (1) the precautions that were put into place during the pandemic; (2) the impact of the pandemic on the execution of justice; (3) whether the reasoning for constitutional protections can still be in place with the modernization of technology; and (4) the preparation for the next pandemic. The author’s main research method was reviewing case law and breaking down the Sixth Amendment through legislative websites. The author also interviewed Judge Nicholas Chu of Travis County, Texas, who conducted the nation’s first criminal trial via Zoom. He provided not only insight into the trial but also his thoughts on the progression of criminal procedure in the courtrooms. The author concludes that it is possible for constitutional protections to stay intact in a pandemic-susceptible world. Whether the current court system will adopt those methods used during the pandemic poses another question. The author concludes that advancing current courtroom procedures is necessary to move the needle forward in the criminal justice system.

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.

Taylor, Henry, ‘Is Justice by Zoom Justice Denied?: Judicial Stakeholder and Legal Advocate Experiences of Video-Mediated Trial Courts in Washtenaw County’ (SSRN Scholarly Paper No 4087709, 25 March 2022)
Abstract: Previous research has drawn conflicting conclusions regarding the administrative and adjudicatory benefits and detriments of video-mediated (remote) court proceedings. After the universal adoption of remote court during the COVID-19 pandemic, it has become increasingly important to resolve this tension. By conducting and qualitatively analyzing interviews with Washtenaw County trial court judges, defense attorneys, prosecutors, and legal advocates, this study contributes to the growing body of remote court socio-legal scholarship by exploring the administrative and adjudicatory impact of videoconferenced proceedings from the perspectives of Washtenaw County judicial stakeholders, with a non-exclusive focus on domestic violence case proceedings. The research findings suggest that remote court creates favorable administrative efficiencies in the following ways: reduced transportation time and cost, perceptions of higher defendant appearance rates, and enhanced work flexibility for court practitioners. On the other hand, this study suggests that remote proceedings create adjudicatory conditions that negatively affect the administration of justice, namely inadequate technology access and user competency, attorney-client relationship impairment, and a diminished ability for judges, defense attorneys, and prosecutors to evaluate the veracity of court participant testimony. In regards to remote domestic violence proceedings, these findings further observe reduced interpersonal rapport between legal advocates and survivor-complainants, and the proliferation of novel coercion tactics deployed by assailants to discourage survivor-complainant case participation and adjudication. Future research can expand upon this research by engaging with larger interviewee sets and/or interviewing remote court litigants directly. These research limitations, and others, offer an opportunity for future scholarship to establish generalizable findings on remote court’s impact as it intersects with the broader population of court practitioners and participants. By exploring the administrative and adjudicatory effects of universal remote court since the COVID-19 pandemic, future research can better delineate and recommend how a post-pandemic criminal legal system should incorporate elements of remote court.

Thanvi, Irfan Ali, ‘UAE Legal Amendments During the Covid-19 Pandemic’ (2022) 7 Law & Political Review 109–127 (see pages 118-119; 122-124)

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.

Tiamiyu, Oladeji M, ‘The Impending Battle for the Soul of ODR: Evolving Technologies and Ethical Factors Influencing the Field’ 23(1) Cardozo Journal of Conflict Resolution 75–142
Abstract: Legal professionals and disputants are increasingly recognizing the value of online dispute resolution (‘ODR’). While the coronavirus pandemic forced many to resolve disputes exclusively online, potentially resulting in long-term changed preferences for different stakeholders, the pre-pandemic trend has involved a dramatic increase in technological tools that can be used for resolving disputes, particularly with facilitative technologies, artificial intelligence, and blockchains. Though this has the added benefit of increasing optionality in the dispute resolution process, these novel technologies come with their own limitations and also raise challenging ethical considerations for how ODR should be designed and implemented. In considering whether the pandemic’s tectonic shifts will have a permanent impact, this piece has important implications for the future of the legal profession, as greater reliance on ODR technologies may change what it means to be a judge, lawyer, and disputant. The impending battle for the soul of ODR raises important considerations for fairness, access to justice, and effective dispute resolution—principles that will continue to be ever-present in the field.

Tiamiyu, Oladeji, ‘The State of ADR & Technology during COVID-19’ (SSRN Scholarly Paper ID 4149682, 29 June 2022)
Abstract: The pandemic has contributed to noteworthy changes in how law is administered. How parties interact with the justice system, tools available for reaching a just resolution, and the structure of access points to dispute resolution, among many other variables, have all been altered due to the pandemic. Importantly, lawyers and alternative dispute resolution (ADR) practitioners are having an ongoing conversation about what the future of the field could and should be based on the field’s experience with the pandemic. This publication seeks to inform that conversation, analyzing data from a survey administered in the first quarter of 2022 with 400 respondents in the ADR profession. In recognizing the many nuances within the profession, this publication analyzes experiences between different demographic groups, including age, household size, geographic region (i.e. rural-urban), and type of ADR work. As a consequence, this publication provides insight into equity and access to justice considerations that online dispute resolution may provide.

Tito, Maira and Caroline Lima Ferraz, ‘COVID-19 Litigation in Brazil’ (2021) 1(1–3) Legal Policy and Pandemics: The Journal of the Global Pandemic Network 279–286
Abstract: The purpose of this report is to analyze the judicial review of legislative and administrative acts in Brazil during the Covid-19 pandemic. Departing from the empirical evidence collected, it focuses on three main aspects: 1. The general characteristics of the judicial review of legislative and administrative acts during the pandemic; 2. The intensity of the judicial review, compared to before the pandemic; 3. Whether the pandemic has redesigned the role of the courts compared to before the pandemic. The framework is the Brazilian constitutional court, Supremo Tribunal Federal, and its rulings regarding the competencies of the three levels of the Brazilian federation, federal, state and municipal. The sources are legislative and administrative acts published in the official gazettes of the federal, state, and local governments and the official website of the Supremo Tribunal Federal. Regarding the political declarations and events related to the coronavirus outbreak, the source is the newspaper Folha de S. Paulo. Through an applied research methodology, using qualitative and quantitative analysis, this report will present conclusions regarding the role played by the Constitutional Court in the redesign of Brazilian federative system during the Covid-19 pandemic.

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.

Tsiftsoglou, Anna, ‘American Lessons: The COVID-19 Pandemic and the US Supreme Court’ in Kostas Chrysogonos and Anna Tsiftsoglou (eds), Democracy after Covid: Challenges in Europe and Beyond (Springer, 2022) 113–124
Abstract: Ever since the outbreak of the COVID-19 Pandemic in America in March 2020, several US states imposed harsh measures to combat the pandemic. Such state measures have at times seriously violated human rights, such as freedom of religion or freedom of movement. This chapter attempts to look at how the US Supreme Court has responded to the pandemic and reviewed several state measures over the past couple of years through selected cases on freedom of religion and compulsory vaccinations. We particularly look at its views on the role of the judiciary during the crisis, the scrutiny applied on human rights violations, as well as whether changes in the Court’s composition during the Trump Era have in fact influenced its judicial reasoning. Overall, has the COVID-19 pandemic had an impact on judicial review and the Court’s role? If so, how?

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?

Turkut, Emre, ‘Emergency Powers, Constitutional (Self-)Restraint and Judicial Politics: The Turkish Constitutional Court During the COVID-19 Pandemic’ (2022) 4(3) Jus Cogens 263–284
Abstract: This paper investigates the Turkish Constitutional Court (TCC)’s treatment of legal challenges brought against Turkey’s legal responses to the COVID-19 pandemic. Drawing on a detailed examination of the TCC’s institutional features, political origins and jurisprudential trajectory, and taking three politically salient judgments of the TCC concerning Turkey’s executive-dominated pandemic control as the point of departure, the paper argues that the TCC chose to exercise judicial restraint both in protecting fundamental rights and reviewing pandemic policies of the executive. It also argues that the TCC’s judicial restraint during the pandemic was simply the re-manifestation of its ‘play-it-safe’ strategy — a judicial stance the TCC willingly adopted in the aftermath of the 2016 attempted coup despite possessing strong constitutional powers of judicial review, and its established attitude of assertive scrutiny in the past. From a more theoretical perspective, the analysis also explores how the passive role to which the TCC is consigned in an increasingly authoritarian regime since the 2016 failed coup relates to the global phenomenon of judicialization of authoritarian politics.

Replacement Turner, Jenia Iontcheva, ‘Remote Criminal Justice’ (2020) 53(2) Texas Tech Law Review 197–271
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.

Turner, Jenia I, ‘Virtual Guilty Pleas’ (2022) 24(1) University of Pennsylvania Journal of Constitutional Law 211–275
Abstract: The coronavirus pandemic led criminal courts across the country to switch to virtual hearings to protect public health. As the pandemic subsides, many policymakers have called for the continued use of the remote format for a range of criminal proceedings. To guide decisions whether to use remote criminal justice on a regular basis, it is important to review the advantages and disadvantages of the practice. Remote criminal proceedings have been praised for their convenience and efficiency, but have also raised concerns. Many have worried that videoconferencing inhibits effective communication between defendants and their counsel, hinders defendants’ understanding of the process, impedes effective confrontation of witnesses, and prejudices the court’s perceptions of the defendant and witnesses. Previous scholarly work has attempted to evaluate remote criminal proceedings through legal and policy analysis, surveys of practitioners, and a comparison of outcomes of in-person and remote proceedings. This Article adds insights based on direct observations of over three hundred remote criminal proceedings in misdemeanor and felony courts across Michigan and Texas. Our observations reveal that judicial review of guilty pleas in the virtual setting is as brief and superficial as it is in person and may fail to detect inaccurate, coerced, or uninformed guilty pleas. But the virtual format presents additional risks to the fairness and integrity of the plea process, including the disengagement from the process by defendants, the difficulty of counsel and defendant to communicate privately, and the potentially prejudicial effects of inadequate technology and informal settings. The Article concludes by arguing that states should not use remote plea hearings on a regular basis after the pandemic is over. To the extent they do continue conducting remote plea hearings, they must bolster procedural safeguards in the proceedings. Judges must review virtual pleas more closely, verify that defendants are making an informed and voluntary choice to proceed remotely, take measures to ensure that defendants are represented adequately, and address the potentially prejudicial effects of the remote setting. These measures can help protect fairness in the plea process and ensure that virtual guilty pleas remain constitutionally valid.

Usman, Mizaj Iskandar et al, ‘Law Enforcement of Jinayat Cases in Syar’iyah Court in Aceh Province Indonesia During Covid-19 Pandemic’ (2023) 14(2) UUM Journal of Legal Studies 457–482
Abstract: This study aims to look at the jinayat (criminal) trial both from the regulatory aspect and the application of the rule as a responseto the outbreak of the COVID-19 pandemic. Therefore, this study uses two approaches at once, a normative approach to examine thelegality of the regulations and a sociological approach to examine the application of the rule in Syar’iyah courts throughout Aceh. This study found that the Supreme Court has issued the Supreme Court Regulation known as Perma Number 4 of 2020 as the basic regulation for the implementation of virtual criminal and jinayat trials. There is a diversity of practices that lead to legal uncertainty in the application of Perma at the Aceh Syar’iyah court. There are several Syar’iyah courts that have implemented Perma. However, there are also many Syar’iyah courts that ignore Perma due to unprepared infrastructure. But, there are also some Syar’iyah courts that conduct jinayat trials based on the agreement of the parties involved in the trial. In this case, jinayat trials are sometimes carried out virtually and sometimes physically present in the courtroom. This study also found that the tendency of jinayat cases increased throughout the year 2020 when the pandemic occurred. The increase in jinayat cases was caused by two reasons. First, almost all criminal acts regulated in the qanun of jinayat are domestic crimes. Second, there was a relatively large deduction amount of the budget for the enforcement of Islamic law, which was then reallocated to prevent the spread of COVID-19.

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.

Verghese, Leah et al, ‘Lawyers’ Experiences During the COVID-19 Pandemic’ (SSRN Scholarly Paper No 4511150, 17 December 2020)
Abstract: The overarching objective of this rapid study is to understand lawyers’ experiences with accessing the courts during the COVID 19 pandemic. Since this was the first time that Indian courts were conducting online hearings at such a scale, this review needed to be conducted rapidly so that its findings can inform the future implementation of online hearings and virtual courts. This study looks at the extent to which between 23 March and 20 September 2020, lawyers in nine districts in Delhi, Karnataka and Madhya Pradesh were able to access the court machinery, remotely or physically; what processes they used and how effectively they could present their cases. The findings foreground the challenges as well as suggest what measures need to be put in place to ensure that the new requirements of distancing are adhered to while ensuring that none of the principles that ground fair adjudication are compromised.

Vigita, Vėbraitė, ‘Impact of the COVID-19 Pandemic on Court Proceedings in Lithuania’ (2020) 3(7) Access to Justice in Eastern Europe 156–159
Abstract: The pandemic of coronavirus COVID-19 has impacted almost all areas of life through out the word. Justice system in Lithuania was no exception. The effects of the pandemic have been felt till now (the article was finished at the end of August), even if the lockdown was ended on the 16th of June and until now country remains under the conditions of an emergency situation. This article will describe the most important effects of the pandemic to the court proceedings in Lithuania and what lessons could be learned from this situation.

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.

Wati, Herina, Tan Kamello and Marlia Sastro, ‘The Development of Procedural Law Through the E-Court System After Pandemic in Indonesia’ (2023) 6(Special Issue) Veteran Law Review 15–27
Abstract: Technological developments and Covid 19 Pandemic ‘forced’ the Supreme Court (MA) to make breakthrough in procedural law, namely by launching E-Court application, through MA rules Number 3 of 2018 which was exchanged for rules Number 1 of 2019 concerning Case Administration and Trial in E-Courts. E-Court is instrument in court for service of case registration depositing case money to court summons and trial and online delivery of court documents. This study aims to analyze and provide an overview to public of breakthroughs made by the MA for Development of Procedural Law through e-court system. Research method used qualitative research, normative juridical approach. The development of procedural law was initially only intended for registration and examination of civil cases through Supreme Court rules (Perma) No. 3 of 2018 was replaced with Perma No. 1 of 2019 concerning Case Administration and Trial in Electronic Courts. But then e-court is not only for civil cases, it’s also to adjudicate criminal cases with issuance of MA regarding the online criminal trial file Number 4 of 2020. The application for electronic proceedings is an attempt by the Supreme Court to eliminate the obstacles commonly experienced by the judiciary, namely the lack of speed in resolving cases, the difficulty of obtaining data from the court, and the credibility of the integrity of the judiciary, especially judges.

Wen, Tiffany, ‘The Impact of COVID-19 on Jury Selection: Virtual Jury Selection and Its Commitment to Fair Trials by Jury’ (SSRN Scholarly Paper No 4202912, 25 August 2022)
Abstract: After jury selection interviews were moved online as a result of COVID-19, a requirement to even be considered for the jury included a stable internet connection. This research paper investigates how COVID-19 may have caused a difference in jury makeup could impact the verdicts given in court, as well as how this might impact different groups when they are being tried without a diverse group of people who can offer new perspectives to the case at hand so that every defendant will have the right to a fair and speedy trial with a jury of their peers.

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, ‘The 2023 US Supreme Court Term: Implications for Public Health’ (2023) 113(3) American Journal of Public Health 269–271

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.

Winkelmann, Helen, ‘Challenge and Change: Judging in a Time of Pandemic’ in John Burrows and Jeremy Finn (eds), Challenge and Change: Judging in Aotearoa New Zealand (LexisNexis NZ, 2022) 199–218

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.

Yani, Ermida and Fauziah Lubis, ‘The Effectiveness of Executing Trialse-Court During the Covid-19 Pandemic in Matters of Shariah Economic Law Perspective Maslahah Mursalah Imam Asy Syatibi: Case Study of the Medan Religious Court’ (2022) 7(2) KABILAH : Journal of Social Community 435–446
Abstract: E-Court is an application that is integrated with SIPP which is used to process lawsuits/applications, payment of court fees, summons, notifications and delivery of decisions electronically, as well as to process other administrative services. Imam Syatibi also said that sharia actually aims to realize the benefit of humans in this world and in the hereafter. In the e-court trial during the Covid-19 pandemic there were benefits that made it easier to conduct trials and there was no harm in the trial. This e-court trial is very effective which makes it easier for every plaintiff and defendant to conduct a trial. In e-court trials it is very often used in the Medan Religious Court itself, especially regarding sharia economic cases, the effectiveness of online case registration through the E-Court application that can be obtained from this application, namely, saving time and money in the case registration process, payment of down payment fees which can be done in multi-channel channels or from various payment methods and banks, Documents are properly archived and can be accessed from various locations and media, Faster Data Retrieval Process.

Yetter, Katheryn and David X Swenson, ‘Judicial Stress and Resiliency Survey COVID-19 Update: Pandemic Focus’ (2021) 57(1) Court Review 4–7
Extract from Introduction: In the months since this research was conducted, judges and the judicial system have been subjected to brand-new stressors and tests of their flexibility and adaptability. A global pandemic disrupted personal and professional lives, and judges, as people, were not exempt from this disruption. The impact of the pandemic has had ripple effects across much of our current way of life that affects not only judges but all the stakeholders in the courts (e.g., attorneys, parties, court staff, and service providers). Judges have been forced to reconsider the ways in which the system operates and balance the health and safety of themselves, their staff, and the public against access to justice. In addition, the pandemic has created unique stressors that are beyond the normal stressors of judicial work and require resiliency practices that may need daily use beyond our usual habits.

Zhang, Chi and Zhewei Liu, ‘Online Trials in China: Legal and Institutional Approaches During Different Stages of the Pandemic’ [2024] Law and Development Review (advance article, published online 30 April 2024)
Abstract: China has set off a wave of legal and institutional approaches to meet the need of access to justice and rule of law in cyberspace. Online trials and Internet courts as the approaches have not been developed so rapidly until the outbreak of COVID-19. This article will divide the development of online trials in China into three stages and discuss their functions and orientations during different times of the pandemic.

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.

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