Housing Defense as the New \u3ci\u3eGideon\u3c/i\u3e

New York City is the first jurisdiction in the United States to create a right to appointed counsel for poor people facing eviction. This Article is the first to analyze NYC’s ground-breaking legislation. The Article draws on NYC’s housing defense statute to highlight three ways in which the creation of a civil right to counsel has the potential to build on and expand beyond the Gideon v. Wainwright model. The right to appointment of criminal defense counsel, as recognized in Gideon, was part of the Supreme Court’s indirect response to the Civil Rights Movement. In contrast, the NYC legislature openly promotes substantive outcomes, explicitly targeting eviction and its secondary effects. Additionally, the legislature’s focus on housing recognizes concerns that disproportionately impact Black women; this echoes the racial equality goal underlying Gideon and promotes gender equality. Finally, while the criminal defense model defends individuals against only state power, NYC’s right to housing defense counsel includes tenants of private landlords and thereby checks private power. All three of these features are worth attention from legislatures considering expansion of the right to civil counsel. The Article also identifies one important way in which the new model of appointment of housing counsel is like the criminal model for appointment: NYC’s legislation addresses appointment of defense lawyers, as opposed to lawyers for plaintiffs, potential plaintiffs, or people engaged in non-litigation matters. This Article argues that the focus on defense lawyering limits the impact of appointment of counsel. Defense lawyering suffers from systemic limitations that influence litigation strategy and the potential to collaborate with social movements. With respect to the substantive goal of housing preservation, problems like discrimination, harassment, and dangerous conditions also pose significant threats and could be more robustly addressed through affirmative suits. In spite of recognizing the limits of defense lawyering, this Article concludes that the availability of counterclaims in civil litigation makes civil defense more flexible than criminal defense. As a result, civil defense might be able to do more than criminal defense to challenge the status quo and advance substantive improvements for poor litigants

The Prioritization of Criminal Over Civil Counsel and the Discounted Danger of Private Power

This Article seeks to make two contributions to the literature on the role of counsel. First, it brings together civil Gideon research and recent studies of collateral consequences. Like criminal convictions, civil judgments result in far-reaching collateral consequences, and these should be included in any evaluation of the private interests that civil lawyers protect. Second, this Article argues that the prioritization of criminal defense counsel over civil counsel reflects a mistaken view of lawyers’ primary role as a shield against government power. Lawyers also serve a vital role in checking the power of private actors. As private actors increasingly take over public functions, their ubiquity in civic life and power over the lives of individuals grows, and the need to check that power deserves increased attention

(Under)Enforcement of Poor Tenants\u27 Rights

Millions of tenants in the United States reside in substandard housing conditions ranging from toxic mold to the absence of heat, running water, or electricity. These conditions constitute blatant violations of law. The failure to maintain housing in habitable condition can violate the warranty of habitability, common law torts, and, in some cases, consumer protection and antidiscrimination statutes. Well-settled doctrine allows for tenants’ private rights of action and government enforcement. Yet the laws remain underenforced. This Article demonstrates that the reason for the underenforcement is that the tenants are poor. While the right to safe housing extends to all tenants, poor people are the most likely to get stuck in substandard conditions, and the enforcement of their rights is undermined precisely because of their social position. The Article reveals significant limitations in current approaches to the enforcement of poor people’s rights. The private legal market devalues poor tenants’ cases due to class, race, and gender biases in the governing doctrine. Public actors also fall short: they disinvest in the agencies charged with enforcing housing standards, and, when agency lawyers do initiate enforcement, tenants do not control the litigation. The Article envisions a new approach to enforcement of housing standards. It identifies specific ways to expand enforcement by market actors, government agencies, and non-profits. Given the relative strengths of the public and private sectors, a combination of the following approaches is likely to be most effective: (1) strengthening support for private enforcement through legislative reform that enhances fee-shifting and aggregation of claims; (2) increasing agency funds and shifting agency culture to promote zealous government enforcement; and (3) appointing counsel for tenants who wish to bring cases or intervene in suits brought by government actors

Eviction Courts

This Article examines the legal mechanics of the courts that issue eviction orders. It analyzes these courts in the context of the COVID-19 pandemic and the federal eviction moratoria. The eviction phenomenon preceded the pandemic, but the pandemic exaggerated many of its features. How the eviction courts responded to the eviction moratoria reveals a great deal about how these fora have been functioning all along. While the eviction moratoria were important, the design of eviction courts limited their impact. The Article identifies ten groups of laws that structure critical design features of eviction courts: (1) filing fee statutes that make it cheaper to pursue eviction than other forms of civil relief; (2) substandard method of service rules; (3) default rules that allow cases to be decided against tenants in their absence; (4) short turnaround times between complaint filing and trial; (5) limits on discovery procedures that might uncover evidence in support of tenants or create delay; (6) jurisdictional limits on the defenses and counterclaims tenants may raise; (7) rent bond requirements that prevent tenants from raising defenses unless they pay rent allegedly due; (8) laws structuring the provision of legal services so that pro se tenants and represented landlords are the norm; (9) laws establishing qualifications of adjudicators so they may operate without legal training; and (10) obstacles to appeals. The Article concludes that eviction court operations reflect a legal architecture designed not to recognize tenants’ rights, and instead this legal architecture supports hierarchical relations between owners and tenants. While the urgency of the eviction crisis may appear recent, the U.S. has a long history of depriving subordinated people of homes while others profit from the scarcity and instability of housing. The design features of eviction courts serve to maintain this social order