March 2020 brought an unprecedented crisis to the United States: COVID-19. In a two-week period, criminal courts across the country closed. But, that is where the uniformity ended. Criminal courts did not have a clear process to decide how to conduct necessary business. As a result, criminal courts across the country took different approaches to deciding how to continue necessary operations and in doing so many did not consider the impact on justice of the operational changes that were made to manage the COVID-19 crisis. One key problem was that many courts did not use inclusive processes and include all the key players in decision-making. This Article suggests that the criminal courts would have been better able to manage the decision-making process if they had been using Dispute System Design (DSD). DSD is a collaborative, inclusive process that would have given the courts an established process for decision making which could have assisted criminal courts to better adapt to new and changing circumstances and to keep a focus on justice in the decision-making process.

This Article argues that the use of Continuity of Operation Plans (“COOP”), as a planning tool, may have reinforced the lack of collaboration in federal and state courts, and reinforced the failure to consider the impact that operational changes may have had on justice. This Article gives examples of a variety of changes that the criminal courts adopted to conduct necessary court processes and questions whether the process for decision-making negatively impacted the system’s ability to adapt to the changes COVID-19 demanded. Finally, this Article offers lessons that courts can use from this unparalleled time. This Article proposes that criminal courts adopt Dispute System Design processes as a regular part of their planning which would facilitate inclusive justice focused decision-making in future crises that will undoubtedly also require operational changes.

Domestic violence procedures, like so many court processes around the world, were forced to go online and remote during the pandemic. The impact was dramatic—there were fewer restraining order petitions filed in the first place and an even lower amount granted. In short, domestic violence survivors, among the most vulnerable in our court system, were even more challenged in the last two years. Like many court systems, Milwaukee will never go back to being fully in-person for all procedures in conjunction with domestic violence. The evolving hybrid choices could provide additional access to justice, or these processes could create additional barriers to successful filing of restraining orders in court and accessing needed social services for survivors.

Interestingly, the shift to remote and online processes has been successful and effective in other contexts. How can we explain the difference? Using the lens of process pluralism, this Article addresses four key factors: (1) context—recognizing that domestic violence survivors are a unique set of court clients and present specific challenges; (2) process plurality—the use of different and hybrid technological options considering party access to technology and advocate support, synchronous versus asynchronous modes, efficiency, and benefits versus costs of video/face to face interactions; (3) imagination—the need to evolve and create new process options to meet the concerns of particular contexts and courts; and (4) justice—ensuring that processes are both procedurally and substantively just, providing voice, legitimacy and fair outcomes to participants. In conjunction with empirical research conducted on survivors and service providers in the Milwaukee County area during the pandemic, this Article will review each of these principles and outline crucial next steps for the court to protect the most vulnerable.

This Article discusses how to blind justice and reduce racial justice inequities when conducting dispute resolution processes for civil matters via video conferencing. The sheer volume of cases conducted via video conferencing during the pandemic provides an opportunity to begin examining this prescient issue. Post-pandemic, video conferencing remains a preferred mode of conducting dispute resolution processes for some dispute resolution cases because of its time and cost-saving benefits. This Article explores how we might we build on what we have learned to yield equitable justice outcomes.

This Article focusses on three major racial justice equity issues magnified by video conferencing: remediating the digital divide; addressing the implicit racial biases that are exacerbated by video conferencing; and responding to Black participants’ procedural justice concerns when dispute resolution processes when video conferencing traverse the public/private divide. This Article culls from the emerging research and discussions about the intersectionality of video conferencing and implicit racial bias observed in virtual court hearings, interviews, and anecdotally during the Covid pivot.

The pandemic and the rapid shift to online mediation affords practitioners and policy-makers an opportunity to revisit our codes of conduct for mediators in earnest. In particular, the ABA Model Standards of Conduct for Mediators are due for a reassessment in light of their many decades of service to the mediation community. The use of online mediation presents unique concerns in the area of safety, and addressing those concerns should lead to a broader discussion of mediators’ obligations to provide a safe process for participants. While there has been much discussion around adopting new standards for Online Dispute Resolution (“ODR”) which helps inform mediator obligations in areas like data security, mediators also need to be mindful of and help participants prepare for their own physical safety during an online mediation. This Article endorses an expansive approach to safety in mediation, arguing that in online settings mediators must be mindful of data security while also taking into account the physical and emotional safety needs of parties participating remotely in a mediation.

The COVID-19 pandemic forever changed the United States’ justice system. During the pandemic, courts across the country rapidly incorporated remote technology into the courtroom as a way to keep the justice system moving. Incorporating remote technology in the courtroom, however, has put criminal defendants’ Six Amendment right to confrontation at risk. This Article argues that Zoom jury trials in the criminal justice system are unconstitutional and infringe on a criminal defendant’s right to confrontation. This Article analyzes years of Supreme Court precedent, as well as conflicting decisions out of the United States Circuit Courts of Appeal, to assess the constitutionality of a fully remote criminal jury trial, a topic on which there has been little scholarly discussion.

This Article highlights three main concerns with introducing Zoom as a permanent feature of our criminal justice system including issues with reliability, non-verbal communication, and witness credibility.

In the Summer of 2020, America saw a racial reckoning in the wake of George Floyd’s murder. Racial disparities in our justice system have always been present but entered the cultural zeitgeist as Americans took to the streets to protest the disparate treatment of people of color by law enforcement. This Article suggests that the racial gap can be bridged through the American court system itself and examines the Federal Rules of Evidence as a starting point. First, the author examines the promulgation of the Federal Rules of Evidence, focusing on the history and circumstances surrounding their inception. Next, the author identifies and discusses racial disparities in specific Federal Rules of Evidence that illustrate how, in many instances, the Rules themselves are the cause of what they originally sought to eliminate. Finally, the author provides a practical solution that utilizes Rule 403 to combat the implicit racial bias found in the Rules and reduce the correlation between race and how much justice an individual receives.

Florida Rule of Civil Procedure 1.38,0 Failure to Make Discovery, Sanctions, informs in which court to enforce a litigator’s discovery right, what orders to seek from the trial court, and sanctions that may eventually be available. However, the rule does not inform what criteria the trial court should consider in making its rulings. Instead, those matters are to be found in voluminous, but divergent, case law. That case law, through prolific, is disjointed and lacking in a coherent sequence. This Article surveys, and resolves, those issues for each Florida court system.

For two reasons, this Article is important for judges and litigation counsels. First on the prolificacy of cases this Article reviews over one hundred cases and bundles those reports into related packets (per court systems). Second on disjointedness; this Article maps and resolves the discombobulation of diverse cases using disparate language in providing analytical rules.

This Article is the first in a series of yearly articles analyzing references, discussion, and applications of the Third Amendment in court, legal scholarship, and popular media and commentary. The Third Amendment’s prohibition on quartering soldiers in houses during peacetime and its requirement that quartering during times of war be authorized by law is not typically discussed (or even known) by most in the legal field. This Article and its future iterations aim to address this neglect by surveying references to the Third Amendment and noting trends in its invocation and discussion across all aspects of the legal field.

As it turns out, the Third Amendment had a bit of a moment in 2020, drawing brief but widespread public attention in early June. A dispute between the mayor of Washington, D.C., and National Guard soldiers over whether they could be housed in a particular hotel led to a great deal of speculation over whether the Third Amendment would be invoked and, if so, whether it would apply to the dispute. While no litigation ended up taking place, this incident brought more attention than usual to this neglected component of the Bill of Rights. This Article describes the dispute, surveys the commentary, and evaluates whether a Third Amendment claim could have even been made in the first place.

Beyond this, the Article surveys citations and trends in arguments invoking the Third Amendment in 2020 caselaw and legal scholarship. The Third Amendment’s restrictions on quartering are often cited to demonstrate a constitutional right to privacy and to substantiate claims that the Constitution and its Bill of Rights were designed to protect civilians against overbearing military and governmental authority. Additionally, the Third Amendment tends to be a go-to citation for litigants who claim that their rights were violated and want to throw every argument they can possibly make at the court. This Article provides a comprehensive breakdown of Third Amendment citations in the caselaw and evaluates arguments invoking the Third Amendment in 2020 legal scholarship.

While the Third Amendment does not get the respect or attention given to adjacent amendments, this Article serves as a first step toward a systematic understanding of the Third Amendment’s role in modern caselaw, legal scholarship, and society.

The criminal justice system, wherein nearly all cases are resolved through a guilty plea, is tenuously balanced on prosecutorial discretion in the context of the plea-bargaining process. This shift in the balance of power away from judges and juries is particularly troubling given the lack of formal legal safeguards afforded to defendants engaging in plea bargaining rather than going to trial. The main issue is not prosecutorial discretion per se, or even overzealous prosecutors, but the lack of oversight of the plea-bargaining process and the imbalance of power itself, which threatens the legitimacy and stability of the criminal justice system. This Article argues for the importance of prosecutorial discretion as a potentially valuable tool and analyzes how and why it creates potential for abuse. The Article concludes with suggestions for recreating a balance of power, by addressing issues arising from unequal access to information throughout the plea-bargaining process, recentering a defendant’s constitutional rights within the justice system, and implementing safeguards in the prosecutorial function prospectively.

When it comes to bar admission, law students who aspire to join the profession can justifiably question whether Florida law means what it says. Serious tensions exist between the Rules of the Florida Supreme Court Regulating Admission to the Bar and the other transparency, free speech, privacy and judicial funding requirements of the Florida Constitution. The bar examiners have a long-standing, restrictive, and regulatory view of themselves as a constitutional safeguard protecting the public from potentially dangerous attorney aspirants, but the Supreme Court of Florida cannot and should not exempt its agents from the State Constitution.

Open government initiatives, online announcements, and periodic reports can enhance transparency and public understanding. Vague character rules can be rewritten. Individual freedoms of speech and thought can be respected. Needless invasions of personal privacy can be avoided through reevaluation of the financial and mental health inquiries. Burdensome fees can be reduced, and the public at large should contribute to the bar admissions budget. Florida’s principles of ethics and professionalism direct that the voices of the legal community should be heard in our effort to self-govern and administer the justice system.

In most cases, today’s bar applicant is tomorrow’s lawyer. For these applicants, the actions taken by the Florida Board of Bar Examiners create first impressions of the entire legal system. A constitutionally-questionable process is not a good beginning. The Florida Supreme Court, its bar examiner agents, the members of the Florida Bar, the professors and institutions working in legal education – and yes, the future members of the profession – all need to honor our oaths.