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Excerpted From: Helen Hershkoff and Arthur R. Miller, Courts and Civil Justice in the Time of Covid: Emerging Trends and Questions to Ask, 23 NYU Journal of Legislation and Public Policy 321 (2021) (482 Footnotes) (Full Document)


HershkoffandMIllerIn 2018, Richard Marcus, an astute observer of civil procedure, reported “that those seeking procedural reform in the US are 'treading water'--staying afloat but not moving very far.” In part, reform efforts had stalled because proponents disagreed about why procedural change was needed. Some critics pointed to a “justice gap” in the American legal system, citing the soaring numbers of pro se litigants with legal needs for whom civil justice was out of reach. Others questioned the fairness of the rules of pleading and motion practice, citing an excessive emphasis on expedition to the detriment of democratic values, countered by those who saw these rules as a source of cost and delay that pushed litigants outside the court system to more informal means of redress. The Black Lives Matter and #MeToo movements gave salience to overlooked concerns about racial, gender, and class bias in judicial proceedings, while, in a different vein, some commentators decried a “litigation explosion” that in their view negatively affected firm value and dampened economic growth. Still other critics urged widening the discussion of procedural reform to include not only the Article III courts, but also the state courts. Overall, proponents of reform lacked a consensus about the nature of current problems, the values that ought to guide procedural change, or the importance of litigation as a democratic activity.

Almost three years later, the words “treading water” could describe the entire United States, as the country barely stays afloat amidst a global pandemic traced to the lethal effects of an airborne virus called COVID-19. As of February 2021, the pandemic has left more than 500,000 Americans dead and infected more than 28 million, and a new virus strain has appeared that apparently is more infectious than its predecessor. Moreover, the infection rates and death toll do not fully capture the severity of the pandemic's impact on the nation. At various points, the pandemic has pushed as many as fifteen percent of the population into unemployment, with 140,000 jobs lost in December 2020 alone; placed another 40 million Americans at risk of eviction; and compelled uncounted others to face extreme medical emergencies without health insurance or savings. These harmful effects have not been evenly distributed during the pandemic: the fatality and infection rate among Black Americans is disproportionately higher than the rest of the United States population; the net worth of America's 664 billionaires so far has increased by one trillion dollars, with their composite wealth of $3.88 trillion almost twice that of the 165 million Americans who now comprise the bottom half of the economy.

This Article focuses on the first year of the pandemic and how the state and federal courts have responded to COVID's extraordinary dislocation of traditional legal practice. The Article also raises questions about how the judiciary's emergency responses might affect future efforts at procedural reform. The pandemic's immediate impact on the courts resulted from COVID's mode of transmission: it spreads person-to-person through respiratory droplets that result from talking, coughing, sneezing, or wheezing, and is highly contagious. Early in the emergency, the medical community emphasized that the first line of defense against COVID required individual discipline, institutional commitment, and community support: to stay at least six feet apart from other people while also wearing a face covering over the nose and throat; to quarantine if infected or exposed to an infected person; to wash hands regularly; and to clean surfaces and spaces after even casual contact. Judicial systems quickly adapted their facilities in light of these guidelines, showing an impressive resolve to operate an essential service--a working system of civil justice--while protecting the health of judges, lawyers, witnesses, jurors, and court personnel.

State and federal courts have remained in operation by limiting physical contact both between personnel within the courthouse and with the world outside the courthouse--holding proceedings behind plexiglass screens, electronically, by telephone, or not at all. These judicial measures, taken in response to medical guidelines, have jumpstarted extraordinary changes in court process. In the short term, these changes have profoundly affected professional practice, testing the limits of what it means to have “one's day in court” especially when the courts are physically closed to the public. As pragmatic accommodations required by the moment, these measures reflected the judiciary's significant resource constraints and the pandemic's indefinite horizon. Whether these changes will prove to be expedient and transient, or permanent and seismic, remains uncertain. Any assessment of their long-term potential as a basis for reform necessarily remains tentative, not only because the health crisis is dynamic, but also because in the aftermath of COVID, the public may be motivated to seek more foundational procedural change.

In particular, the pandemic has exposed fissures in American society that dramatically affect not only the perceptions of civil justice, but also civil justice itself. To be sure, the pandemic's overall effects have been catastrophic for the economy and social life. However, its harshest consequences have been differentially distributed in ways that key to class and race. Black Americans have died at three times the rate of white Americans; those who are homeless or underhoused cannot socially distance or shelter at home and have been at greater risk of exposure; and those who depend on food pantries and soup kitchens have faced a greater threat of food insecurity and infection. Further, the pandemic has coincided with widely publicized videos of police causing the brutal deaths of Black Americans; the public has responded by focusing greater attention on racial inequalities that implicate both law and the courts. Indeed, commentators now refer to COVID and racism as the country's “two deadly viruses,” as “dual pandemics,” and as “twin pandemics.” The judicial system's emergency responses to COVID by necessity did not address this systemic problem, which before the pandemic we would say was hiding in plain sight and very much in need of redress. A year into the health crisis, taking stock of the judicial response to COVID seems essential, if only to ensure that makeshift procedural changes do not become a new status quo that heightens rather than removes barriers to the fair, equal, and effective provision of civil justice in the United States.

Our starting premise resists treating the pandemic as a natural event that runs according to its own rules and conventions. The public frequently talks about the pandemic as moving in waves, but the pandemic--or any public health crisis--is not an ocean with tides that rise and fall as predicted by the Farmer's Almanac. The naturalistic metaphor ignores the ways in which a pandemic, in intensity and duration, responds to human interventions, institutional structures, and ideological priorities. To borrow from David Runciman, writing in April 2020 at an early point in the pandemic, “[t]he contingencies of politics are the contingencies of the disease; the contingencies of the disease are the contingencies of politics.” COVID's surges in infection rates and deaths were not and are not foreordained, but rather reflect, significantly, even if not entirely, responses to political decisions and individual conduct on such matters as whether persons take advised precautions, whether communities provide food and shelter for those who have neither, whether hospitals are stocked with essential human and medical resources, and whether and how the government supports development and distribution of a vaccine. In this sense, we analogize the pandemic to a famine, which Amartya Sen famously theorized as resulting not from crop failure or insufficient food supplies, but rather from institutional and legal decisions that, when based upon existing food entitlements, increase the likelihood of starvation by those who lack those entitlements. That the pandemic has had a disproportionately negative effect on Black, Brown, and poor communities, and that the Trump Administration's responses to COVID have exacerbated both wealth and racial inequalities is consistent with this theory. Our framing of the problem thus also draws indirectly from the work of Paul Farmer and others who have urged that the study of infectious diseases pay attention to the role of social inequalities in the dynamics of public health, and the way in which pre-existing inequalities shape decisions affecting funding, investigation, and policies.

Consistent with this approach, we explore the impact of the White House as a constraint on the judiciary's initial responses to COVID. In our view, early containment of the COVID crisis required national leadership, national coordination, and national resources, which neither the White House nor Congress provided during the pandemic's critical first months or during the infection surge that coincided with the 2020 post-Presidential election holiday season. In particular, President Trump failed to anticipate the crisis, failed to plan for the crisis, and failed to respond to the crisis even as its potentially deadly magnitude became clear. Before taking office, the Trump White House disdained participating in the usual transition activities of a new administration, failing to lay the groundwork for a proactive approach to COVID before it became a pandemic. Then, as the President became embroiled in the first of his two impeachment proceedings, he insisted in his tweets and public messaging that the virus was a hoax created by his enemies for partisan advantage and that it would “disappear” through miracle or magic. Remarkably, the White House ridiculed medical guidelines, encouraged the President's supporters to defy social distancing mandates, and held political rallies where individuals wore no masks and that are estimated to have put thousands of people at risk. As infection and death rates rose, the President offered the nation no meaningful plan for containment, but rather a racialized paradigm of the disease, calling it the “China virus” and suggesting that Black and Brown Americans--at the time hardest hit by COVID because of prior social, economic, and health conditions-- were drivers of the virus due to genetic inferiority and personal irresponsibility.

When President Trump at last supported a national COVID policy, his approach fully exemplified Sen's theory of famine as applied to pandemics: it relied upon existing entitlement structures that reinforced racial, class, and geographic distinctions and justified the withholding of assistance from states, localities, and individuals that faced the greatest health dangers. In particular, states and localities, traditionally the front-line providers of public health services in the United States, found themselves ill-equipped to plan for or to respond to virus-related social and economic dislocation, and were effectively abandoned and disparaged by the President. The intensity and duration of COVID--and the country's initial failure to distribute vaccines quickly and safely to the population--reflected in large part President Trump's inaction and misguided action, as he not only refused to take steps to contain and mitigate the crisis, but also irresponsibly continued to characterize the pandemic as “fake” and then simply ignored the crisis as he tried to overturn the election of his opponent as President.

In Part I, we discuss the Trump Administration's inadequate response to the crisis--a response marked by what the Brookings Institution later called “massive failures” which the White House denied the existence of the problem, delayed the development of a coherent containment policy, and deprived states and localities of critical resources. These failures generated a domino effect of problems outside the courthouse that indirectly affected the courts and provide the context for assessing and appreciating the judiciary's emergency responses taken in their wake. Although Congress eventually adopted massive legislation intended as an economic stimulus package, those funds failed to reach cities with the highest level of need, were withheld from Black-owned small businesses, and all-but dried up by late 2020.

Part II shifts from the political branches to the state and federal courts, chronicling judicial efforts to continue providing an essential service--justice--while taking account of public health needs and constrained resources. Drawing from federal and state examples, we sketch the sequence and content of judicial responses to the pandemic and their reliance on elements of electronic practice to keep the courts open for civil matters on a remote basis. Our examples are illustrative and not intended to be comprehensive. In contrast to the White House, the courts worked quickly to devise emergency responses--we do not call them reforms--that by necessity were makeshift, but nevertheless impressive in their regard for collective decision making, public transparency, and reliance on medical expertise.

In Part III, we show how the judiciary's quick transition from traditional to virtual practice was facilitated by the courts' prior experience with technology, investments in electronic infrastructure, changes in legal education, and earlier amendments to procedural rules. Above all, the various judiciaries--unlike the White House--were willing to take responsibility, to assume accountability, and to look to best practices in their efforts to ensure that the civil process continued to be available to the American people. Although twentieth century civil procedure has tended to take a trans-substantive approach to litigation, the COVID crisis motivated courts to set case-specific priorities and to adapt court rules and practices for different kinds of cases and litigants--one size did not fit all.

Part IV turns to legal challenges brought by Black, Brown, and poor Americans whose lives were being brutally impacted by COVID. In particular, we examine lawsuits brought by voters who were blocked from casting absentee ballots; immigrants who were inhibited from seeking health care because of Executive policy; women who were obstructed from exercising reproductive choice because of state restrictions; and prison inmates who were prevented from accessing basic hygiene items such as soap as a safeguard against infection. Throughout the health crisis, the judiciary, recognizing that the pandemic presented life-threatening circumstances, devised responses in light of medical expertise to ensure the safety and health of those who worked or practiced in the courthouse. Yet in the cases we examine, the Supreme Court of the United States seemed to accord only limited deference to medical expertise, and instead withheld legal protection that left plaintiffs exposed to COVID's potentially fatal effects.

Part V takes stock and looks forward, focusing on the short-term impact of COVID on the courts and legal process, and sketching possible long-term consequences and principles to guide reform. The courts built their emergency responses to COVID upon the nation's existing entitlement structure and did not seek to mitigate or eliminate resource gaps among litigants that negatively affect the delivery of civil justice. The pandemic has widened these gaps and made some of them more salient for policymakers. The after-effects of COVID will demand attention long after the pandemic has ended and the final death toll is known. But we emphasize: The deaths and disruption that resulted from the pandemic did not follow a fixed and preordained path, but rather were shaped and exacerbated by legal and institutional responses. During the pandemic and its aftermath, the courts undoubtedly will play a role in addressing some of these problems. However, problems that existed in the court system prior to the pandemic continue to need repair and reform, and there is no assurance that the courts' emergency response to COVID will prove to be the appropriate one for a post-COVID society.

[. . .]

We are both professors of United States civil procedure, and the rules that we use as a model--the Federal Rules of Civil Procedure--emerged during the crisis of the Great Depression. Those Rules were designed to instantiate the democratic ethos of President Franklin D. Roosevelt's New Deal, reflecting a conception of litigation not only as a private legal act, but also as a public act that promotes the country's shared welfare. Many scholars have discussed the possible end of the New Deal spirit in the United States and the ways in which civil procedure has undergone deformation from its democratic origin. Those concerns have been heightened by the pandemic and by the Trump presidency. The judiciary's emergency response to COVID thus far has depended on technology to ensure the continued operation of the courts when the courthouse is closed. Used properly technology can increase citizen participation, improve government transparency, decrease costs, and afford greater autonomy. But technology is dual headed, and the legal profession ignores at its peril technology's dangers--namely, the potential to dilute privacy, to diminish access to justice, and to damage democratic practice. In this moment of national crisis, we believe that any plan for court reform and for changes to procedural rules must resist treating the judiciary's emergency response to COVID as the appropriate, let alone the necessary, way to conceptualize a post-COVID judicial system. If there are any lessons to be learned from the current pandemic, they show the need for enlarging the discussion from a focus on technological capacity to ensuring that deep structural inequalities in American society not be allowed to undermine foundational principles of fairness, integrity, and equality.

Helen Hershkoff is the Herbert M. and Svetlana Wachtell Professor of Constitutional Law and Civil Liberties at New York University School of Law.

Arthur R. Miller is University Professor and Warren E. Burger Professor of Constitutional Law and the Courts.

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