The COVID-19 pandemic has raised serious questions about disputants’ access to justice. Early on in the pandemic, in March 2020, U.S. courts shut down jury trials, judges conducted almost all appearances and arguments on videoconference, and many civil cases were placed on hold. Similarly, alternative dispute resolution forums shut down their in-person services, pivoting like the rest of the business world to videoconference technology to replace in-person meetings such as mediation sessions and arbitration hearings. This pivot led to rapid innovations and creativity almost overnight in the provision of dispute resolution services without any face-to-face interactions. Praise and critique alike followed. Empirical studies of arbitration experiences and outcomes during the first year of the pandemic yielded mixed results. Focusing on arbitration of securities industry disputes, this Article contributes to the literature exploring the impact of the pandemic on arbitration and explores whether parties arbitrating their disputes at FINRA Dispute Resolution Services during the pandemic have had access to justice equivalent to the justice that was available pre-pandemic. In particular, the Article analyzes data about FINRA customer arbitrations over the course of the pandemic, from onset in March 2020 through mid-2022, when most municipalities had lifted COVID-19 restrictions. The Article relates empirical data on the outcome of FINRA customer arbitration during the pandemic, and then analyzes that data to explore whether Zoom arbitration at FINRA impedes access to justice.

Is Remote Justice Still Justice? This Article approaches the question posed in this symposium edition by looking to the future, beyond the pandemic emergency use of remote arbitration proceedings. It zooms in on one mandatory arbitration forum–the Financial Industry Regulatory (“FINRA”) securities arbitration forum–describing the steps that FINRA took to evaluate remote arbitration; outlining the resulting changes to its policies, resources, and rules; and illuminating features of the FINRA forum that may position it as a model for evaluating post-pandemic remote arbitration in other mandatory arbitration forums. The Article makes several contributions to the literature on mandatory consumer arbitration. First, it provides transparency and accountability by bringing to public light steps taken within the forum that might otherwise be unavailable except to insiders by describing the post-pandemic work of FINRA’s National Arbitration and Mediation Committee and newly formed Zoom Task Force. This descriptive, historic account includes the publication, with FINRA’s permission, of the results of a survey to participants in FINRA remote hearings during the pandemic’s emergency phase. Second, it builds upon scholarship positing that FINRA is an arbitration archetype with justice-enhancing features. In this regard, the Article identifies three features unique to FINRA indicating that aspects of its work evaluating post-pandemic remote arbitration could positively supplement evaluative frameworks for other mandatory consumer arbitration forums. These features include: (1) disciplinary action to enforce forum rules and norms; (2) government oversight and stakeholder engagement; and (3) high levels of transparency and disclosure. Finally, the Article proposes a path forward, recommending that other forums create strong technological infrastructure to hedge against future disruption risk, adopt transparency as a foundational forum attribute to facilitate trust-building and legitimacy, cultivate relationships with and seek the feedback from wide-ranging stakeholders about their experiences in the forum, involve public participation in the early stages of rulemaking, and provide resources and guidance accessible to one- shot forum participants. While this Article does not directly answer the symposium’s framing question, the contributions it makes assist in designing a framework that may help answer that question in the future.

The COVID-19 pandemic compelled courthouses to close their doors and prompted mediators to facilitate resolution of disputes in a virtual space. As a result, the use of online processes accelerated exponentially. Virtual mediation, with a human mediator, parties and lawyers participating on a zoom or other platform, became an appealing alternative to traditional methods of dispute resolution. Despite the necessity of virtual replacements to in-person dispute resolution processes, many practitioners were skeptical about their ability to shift to virtual mediation practice. Technological barriers were only one concern. Mediators feared that the absence of in-person interactions would negatively impact mediation processes and outcomes. Fortunately, however, virtual mediation proved to be an efficient and effective alternative to in-person mediation.
As the pandemic subsides, surveys demonstrate that mediators believe virtual mediation should continue as a common, or even presumptive, dispute resolution alternative. Practitioners value the effectiveness and flexibility that virtual mediation offers. Indeed, mediators and disputants discovered that virtual mediation tends to be less expensive, more accessible, and as equitable in process and results as traditional, in-person, mediation. As we emerge from the worldwide COVID-19 pandemic, it is time to add a new door to the multi-door courthouse and declare that the presumptive dispute resolution process is virtual mediation.

The Center for Disease Control’s eviction moratorium for nonpayment of rent during the COVID-19 pandemic alleviated immediate costs for affected tenants who were financially burdened during periods of economic shutdown—but at what cost? While this moratorium was invalidated by the United States Supreme Court in Alabama Association of Realtors v. Department of Health and Human Services for exceeding the power of an executive agency, the Court allowed for the possibility of this moratorium being lawful if it were passed by Congress. Within the dicta of the brief opinion is language praising the hallowed property right to exclude followed by a footnote to Loretto v. Teleprompter Manhattan CATV Corp.—the leading case on physical invasion regulatory takings. What seems to be harmless dicta at first glance could potentially lead to explosive legal question: if a future moratorium on evictions for nonpayment of rent was enacted by Congress, could a regulatory taking result?
This Article explores the eviction moratorium and its resulting litigation, breaks down the meaning and jurisprudence of federal regulatory takings, and analyzes the eviction moratorium under the different theories of regulatory takings. Based on the Supreme Court’s recent decision in Cedar Point Nursery v. Hassid, this Article finds that a future eviction moratorium similar to the CDC’s would be found unconstitutional for violating the Fifth Amendment under a physical invasion theory of regulatory takings—a per se rule requiring no balancing test by a court. Finally, this Article concludes by suggesting alternative crisis rental housing programs that balance the equities of relevant parties without amounting to a regulatory taking.

“Cause I’m livin’ on things that excite me, be they pastries or lobsters or love.” Like Jimmy Buffet, many people around the world get excited when they see lobster on the menu. Recently, however, the crustaceans have gone from coveted to controversial because of a legal battle between the American commercial lobster fishing industry and marine mammal activists. In response to this dispute, United States government agencies announced new commercial lobster fishing regulations in an effort to reduce the threat of entanglement that commercial fishing gear poses to the critically endangered North Atlantic right whale.
This Article argues that these new regulations, while well-intended, nevertheless improperly target and damage the Maine lobster industry; an industry that has not been credited with a right whale entanglement in nearly two decades. In doing so, this Article explores the histories of both the Maine lobster industry and the North Atlantic right whale, analyzes the ongoing legal battle between embroiling the two, surveys the new regulations and their impacts, and finally argues that the new regulations are flawed to a point that warrants judicial intervention. This Article then concludes with a short afterword discussing somewhat unexpected political and legal developments that occurred after the Article was submitted for publication.