Tag: public health

Federal courts issue guidance for reopening, including conducting jury trials

The federal courts’ COVID-19 Judicial Task Force released a detailed report on Wednesday, containing recommendations for conducting jury trials and convening grand juries during the coronavirus pandemic. This Bloomberg Law piece provides a bit of additional context.

The report relies on guidance from the Center for Disease Control, and acknowledges that district courts may be ready to open, and open more fully, at different times during the next few weeks. It is a careful, detailed, and thoughtful report. It also illustrates the complex issues that virtually every organization — public or private — is facing right now regarding reopening: cleaning, social distancing, virus screening, transparency, scheduling, travel safety, and so on. Ask any school administrator, business owner, local bureaucrat, or public official, and you’ll hear about the same predictive difficulties.

The bottom line: courts are navigating this crisis just like the rest of us. Preparation is essential, but only time will provide real clarity.

 

States Cannot Prefer Graduates of Their Own Law Schools for Bar Exam Seats

A guest post by Lawrence Friedman

As state bar examiners attempt to navigate the administration of this summer’s examination through the challenges posed by the novel coronavirus, some – including New York and Massachusetts – have attracted no small amount of attention by seeking to give priority placement to graduates of in-state law schools. Writing in Justia, Dean Vikram David Amar has argued that such restrictions are unconstitutional because they violate the dormant commerce clause. I have no quarrel with his analysis and here simply anticipate, and respond to, another potential argument defending a preference for in-state law school graduates.

Under the dormant commerce clause, states may not expressly prefer in-state businesses to the disadvantage of their out-of-state counterparts. As Dean Amar notes, the policies embraced by states like New York and Massachusetts, which “explicitly treat all in-state law schools differently than all out-of-state law schools,” effectuate clear discrimination between local and out-of-state interests.

When state rules affirmatively discriminate against interstate commerce, they are subject to demanding judicial scrutiny: as the Supreme Court explained in Maine v. Taylor, the state must carry the burden of demonstrating both that the rule serves a local purpose that is effectively compelling, “and that this purpose could not be served as well by available nondiscriminatory means.” Continue reading “States Cannot Prefer Graduates of Their Own Law Schools for Bar Exam Seats”

Courts embracing video in wake of coronavirus pandemic

With coronavirus spreading worldwide, courts are increasingly closing their physical spaces and relying on video technology to keep the wheels of justice moving. The UK Supreme Court has equipped itself with high-definition cameras for livestreaming. In the US, both state and federal courts are effectively closing their courthouses and moving to videoconferencing for at least certain types of hearings.

Time will tell whether this shift portends a larger move to court-centered online dispute resolution, or whether courts will revert to their traditional courtroom operations once the health crisis is over. My sense is that it will be some of both. Courts are highly unlikely to jettison the social grandeur of the courthouse entirely, and of course no video can replace the physical intimacy of a jury trial or an evidentiary hearing. At the same time, courts would be wise to use this moment as an opportunity to craft a form of public online dispute resolution for appropriate types of cases — a form of resolution that is as (or more) effective, cheaper, and more trustworthy than private ODR.

There will be much more to say in this story as it develops. Stay healthy and sane, everyone.

U.S. Supreme Court closes in response to coronavirus threat

SCOTUSBlog reports:

Shortly after the White House and Congress announced that they would close to the public due to increasing concern over the coronavirus, the Supreme Court this afternoon followed suit. In a brief notice posted on the court’s website, the court announced that it would close to the public as of 4:30 p.m. today and would remain closed “until further notice.” However, the court indicated that its building would “remain open for official business” and that filing deadlines would not be extended.

The closure comes during what would normally be a relatively quiet period at the court: The justices wrapped up their February argument session last week and are not scheduled to hear oral arguments again until March 23. There has been no word from the court on whether the March argument session will take place as scheduled and, if so, whether members of the public will be admitted to watch the argument. Yesterday the public health department in Washington, D.C., recommended that “non-essential” gatherings of more than a thousand people be canceled as one way to fight the spread of the virus. The courtroom seats approximately 400 people.

The notice announcing the closure indicated that the Supreme Court’s building was being closed to the public because of “concern for the health and safety of the public and Supreme Court employees.” Two of the justices are in their eighties: Justice Stephen Breyer is 81, while Justice Ruth Bader Ginsburg will be 87 next week. Justice Clarence Thomas is 71, while three more justices are in their sixties: Justice Samuel Alito is 69, and Chief Justice John Roberts and Justice Sonia Sotomayor are both 65.

Gabe Roth, the transparency advocate from Fix the Court, sees this as another argument for livestreaming. He sent out the following press release this afternoon:

Given the crowds that often gather in and around the Supreme Court, not to mention the advanced age of several of the justices, it’s the right call to close the building to the public until further notice.
That said, if this state of affairs continues through March 23 – the next time the justices hear arguments – the Court should at a minimum permit the public to listen to a livestream of argument audio from its website.
We believe the Court already has this capacity, as it streamed a Justice Scalia memorial service in Nov. 2016, and any technological gaps could be filled in by the nearby D.C. Circuit, which since Sept. 2018 has offered live online audio for all of its hearings.
Live audio is the smartest way to balance the now-competing concerns of public safety and public access.

Helping courts prepare for public health emergencies

As the world nervously watches the spread of the coronavirus from its origins in China, court systems should be updating or preparing their own pandemic response plans. The National Center for State Courts has an excellent compilation of useful materials here.