Post-COVID Courts

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.