Page 14 - Impact: Collected Essays on Expanding Access to Justice

12
guaranteearighttocounselforlow-incometenantswhofaceeviction .4 Proposedlegislationtothat effect has been pending before the New York City Council since 2014,5 and, as of the time of this writing, the legislation has the support of 41 of the Council’s 51 members . While the legislation has not yet been adopted, the City has responded to the advocacy for a right to counsel by vastly increasing funding for eviction prevention legal assistance . In 2016, the City will quintuple its funding for eviction prevention legal assistance, and a great many more low-income tenants will be able to receive legal help in eviction cases in New York City than ever before .6
This vast expansion of funding for eviction prevention legal assistance has led some to question why we need to make access to counsel a “right,” when the City is willing to expand funding and make it easier for low-income New Yorkers to obtain representation . The central point of this essay is that, while an expansion of funding for legal assistance to people facing eviction is enormously helpful, it is not enough to simply increase funding; there are many important and compelling reasons why access to counsel should be a right. A right protects right-holders against government error and unfairness and advances the rule of law . A right protects right-holders’ well-being, security and stability . A right reinforces right-holders’ dignity and respect . A right fosters equality . And perhaps most importantly, a right fundamentally shifts power to the right- holder . And, by increasing fairness in the operations of the Court, improving the status and treatment of tenants, fostering equality and altering the balance of power, the right to counsel would disrupt the existing ecology and bring about concrete changes in the practices of New York City’s Housing Court and the relations between landlords and tenants .
What is a right?
Any discussion of the importance of a right must begin with a working definition of the term, “right .” While the concept of a “right” is commonly understood and, in the United States especially, deeply embedded in history and the national psyche,7 it’s important to be explicit about the meaning of the term, “right .” The Merriam-Webster Dictionary defines a “right” as including “something to which one has a just claim .”8 Merriam-Webster defines a “legal right” as “a claim recognized and delimited by law for the purpose of securing it,” and “the interest in a claim . . . for the infringement of which claim the state provides a remedy in its courts of justice .”9
It is that enforceability of a remedy in a “court of justice” for violation of a right, that enables a right-holder to derive power from a right, and what distinguishes it from a privilege or a benefit . Thus, while funding an expansion of the availability of counsel to those facing eviction confers an
4 Mireya Navarro, Push to Provide Lawyers in New York City Housing Court Gains Momentum, n.y. Times, Dec. 16, 2014, http://www.nytimes.com/2014/12/17/nyregion/push-to-provide-lawyers-in-new-york-city-housing-court-gains- momentum.html?_r0.
5 Int. No. 214-A-2014, new york ciTy council, http://legistar.council.nyc.gov/LegislationDetail. aspx?ID=1687978&GuID=29A4594B-9E8A-4C5E-A797-96BDC4F64F80.
6 See Text of Mayor de Blasio’s State of the City Address, n.y. Times, Feb. 3, 2015, http://www.nytimes. com/2015/02/04/nyregion/new-york-mayor-bill-de-blasios-state-of-the-city-address.html.
7 See, e.g., James H. Hutson, The Emergence of the Modern Concept of a Right in America: The Contribution of Michel Villey, 39 am. J. Juris. 185, 186 (1994) (“They assume that the people who stepped off the Mayflower and the Susan Constant brought with them the idea of a right and understood the concept much as we do today. In a typical scholarly assessment two constitutional experts claimed in 1987 that ‘from the beginning, it seems, the language of America has been the language of rights’.”).
8 Right, merriam-websTer, http://www.merriam-webster.com/dictionary/right (last visited Mar. 9, 2016).
9 Legal Right, merriam-websTer, http://www.merriam-webster.com/dictionary/legal%20right (emphasis added).
Impact: Collected Essays on Expanding Access to Justice