The COVID-19 pandemic will change the American judicial system. In fact, it already has. Historic court processes, protected by the cloak of tradition, have changed instantly, with a speed that was inconceivable before. Necessity has generated new approaches to court practices; most have worked. And more significant changes are underway, as temporary delays yield to longer term reforms. Physical distancing continues and we must adjust to it.
Because we are at the forefront of reinventing the way the American judicial system functions, we have the opportunity to improve our system in sustained and meaningful ways. We have the chance to implement changes that our studies on efficiencies and access to justice have long suggested. We have the potential to enhance the legal system from the perspective of the rule of law.
Moreover, we have the opportunity to improve our system with a speed and effectiveness that few could imagine. As we do so through the extraordinary efforts of federal and state courts right now, we should consider the framework of the World Justice Project’s (WJP) Rule of Law Index as a guide to ensure that we are moving in the direction of our aspirations.
Every year the WJP’s Rule of Law Index reports on the success of nearly 130 jurisdictions around the globe, by measuring the strength of the rule of law based on the experiences and perceptions of court users, practitioners, and experts. The WJP explains:
Effective rule of law reduces corruption, combats poverty and disease, and protects people from injustices large and small. It is the foundation for communities of justice, opportunity, and peace—underpinning development, accountable government, and respect for fundamental rights. Traditionally, the rule of law has been viewed as the domain of lawyers and judges. But everyday issues of safety, rights, justice, and governance affect us all; everyone is a stakeholder in the rule of law.
Four principles guide the WJP Rule of Law Index: (1) accountability (that the government and private actors are accountable under the laws); (2) just laws (that the laws are clear, publicized, and stable; evenly applied; and protect fundamental rights, including the security of persons and contract, property, and human rights); (3) open government (that the processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient); and (4) accessible and impartial dispute resolution (that justice is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve).
The index evaluates eight areas: (1) constraints on government powers; (2) absence of corruption; (3) open government; (4) fundamental rights; (5) order and security; (6) regulatory enforcement; (7) civil justice; and (8) criminal justice.
The Index Weakens and the U.S. Drops from the Top 20
The WJP Rule of Law Index for 2020 found a weakening of the rule of law around the world. The countries with the largest declines struggled most with the areas of fundamental rights, constraints on government powers, and absence of corruption. This pattern is not new. Scores have dropped on those three indicators in earlier years as well.
“The rule of law is not just a matter for judges or lawyers. . . ,” explained William H. Neukom, WJP founder and CEO. “We are all stakeholders in the rule of law and therefore we all have a role to play in upholding it. The 2020 Index underscores that we have our work cut out for us.”
In 2020, the United States dropped out of the top 20 nations in the index. As we overhaul our court system to accommodate physical distancing and other post-pandemic needs, the index is a good guide and measure.
What to Watch For
While many of the factors are implicated in the current changes to court procedures, the civil justice and criminal justice factors appear to be most directly relevant. For now, let’s look at only the civil justice factors, quoted in bold below. Each raises critical questions.
Factor 1: People can access and afford civil justice
Measures the accessibility and affordability of civil courts, including whether people are aware of available remedies; can access and afford legal advice and representation; and can access the court system without incurring unreasonable fees, encountering unreasonable procedural hurdles, or experiencing physical or linguistic barriers.
Might our move to virtual proceedings increase access and affordability of civil court matters? Can we help people who would otherwise need to take time off work, find child care, travel on public transportation to court, and then wait their turn on a busy court docket by allowing virtual participation?
Factor 2: Civil justice is free of discrimination
Measures whether the civil justice system discriminates in practice based on socio-economic status, gender, ethnicity, religion, national origin, sexual orientation, or gender identity.
How will we do as we start to call post-pandemic juries? If we start calling in-person juries soon, will we have older individuals and persons with disabilities disproportionately excused from participation because of the risk factors? Could we do better by having jurors participate remotely? If we move to remote participation, how do we ensure that potential jurors with less access to technology have the ability to fairly participate? How can we use technology to help ensure a fair cross-section of the community in individuals appearing (physically or virtually) for jury service?
Factor 3: Civil justice is free of corruption
Measures whether the civil justice system is free of bribery and improper influence by private interests.
What are the risk factors if we have parties or juries or both participating remotely? Is there better “control” over a jury panel that meets in person? How does the use of virtual connections expose our system to new risks of corruption?
Factor 4: Civil justice is free of improper government or political influence
Measures whether the civil justice system is free of improper government or political influence.
Will there be any differences in the risk factors of political influence if proceedings are virtual? How will influence be asserted if public gatherings such as protests are minimized? Will the role of social media grow even larger?
Factor 5: Civil justice is not subject to unreasonable delay
Measures whether civil justice proceedings are conducted and judgments are produced in a timely manner without unreasonable delay.
Can we improve our speed of justice by allowing virtual proceedings? How much time can we save without the physical demands of appearances? Will we also find ways for virtual proceedings to be done in less time than in-person proceedings because of the efficiency of the technology?
Factor 6: Civil justice is effectively enforced
Measures the effectiveness and timeliness of the enforcement of civil justice decisions and judgments in practice.
Can we implement systems in real time now to measure success with various current, experimental, virtual proceedings? Can we decide which virtual options to sustain based on those measurements after physical distancing is no longer required?
Factor 7: Alternative dispute resolution mechanisms are accessible, impartial, and effective
Measures whether alternative dispute resolution mechanisms are affordable, efficient, enforceable, and free of corruption.
What can we learn from the success of the current virtual mediations and arbitrations? Can the technology currently allowing for efficiently shifting from general groups to breakouts nimbly substitute for in-person dynamics in a range of proceedings? How can we use these virtual alternatives to provide increased access to justice and continue to relieve the court dockets? Can we more effectively expand online dispute resolution systems to help resolve disputes by agreement?
I started my year as 2019–2020 chair of the Section of Litigation with great optimism about the potential of the American judicial system and a focus on our system’s importance in the world as a model of fairness. I end the year with the same optimism. The American judicial system is not perfect. No system is. But we currently have an unprecedented opportunity to improve it, increasing access to justice in accordance with the broad rule-of-law goals.
Finally, gratitude and encouragement to all who are taking part in the effort to improve our system right now. That work carries the potential of creating advances with unparalleled speed and enduring impact. Through that change, may we move closer to our goal of justice for all.