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Washington Law Review

Abstract

Before COVID-19, federal judges largely resisted cameras in their courtrooms; during it, they used webcams to hold court. The American legal system is designed for in-person interaction, yet cases during the pandemic were frequently adjudicated outside the courtroom’s shared physical space. Judges and policymakers must now harmonize pre-pandemic law and policy with pandemic-era experience. To do so, decisionmakers need an analytical framework to harmonize adjudication’s tangible foundation and media’s intangible effects. This Article provides it.

The Article first argues that pre-pandemic judicial intuition (as seen in three judicial philosophies) holds post-pandemic promise. The strictest philosophy requires physical presence for crucial moments of the judicial process. An intermediate approach prefers physical presence but uses policy-based interest balancing. The most flexible view sees physical presence and media use as interchangeable means to the same end. Each judicial philosophy is useful, but none provides a one-size-fits-all solution.

The Article next explores media effects judges recognize but struggle to name. Media foster “presence at a distance,” which in turn changes preexisting dynamics related to courtroom context, participation and behavior, and exclusion of outside information. Media also introduce new dynamics through their “thirdness,” including physical infrastructure concerns, hazards of dehumanization and surveillance, and beneficial opportunities for increased accessibility. These phenomena affect adjudication in different ways at different times. The judiciary should consider them carefully.

The Article culminates by equipping judicial decisionmakers to weigh media’s burdens and benefits. It presents a first-of-its-kind scalable analytical framework that empowers judges and policymakers to make intentional decisions about both remote access and remote proceedings.

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