Page 16 - Impact: Collected Essays on Expanding Access to Justice

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This notion that rights are rooted in the human expectation of fair and equitable treatment can be seen in economic terms as well; a framing that is particularly relevant to the right to counsel in eviction matters, where the court conflict balances economic interests and the fundamental need for a roof over one’s head . In the United States, the conventional wisdom, or at least the national mythology, is that we operate with a free market economy, but the reality is quite different . A huge number of interventions by government are constantly at play, affecting economic markets and reapportioning rights and values . This is particularly true with respect to housing, where, among other areas of government intervention, zoning, taxation, banking regulation, transportation policy and rent regulation all profoundly affect real estate value and the ability to have a home . In any event, in theory, to work fairly and equitably, a free market economy depends on “rational cooperation, full information and zero transaction costs .”13 Yet, none of these essential elements is even minimally present in eviction proceedings in New York City’s Housing Court . To the contrary, Housing Court is well recognized as being a difficult, hostile environment in which most landlords are represented by counsel who are familiar with the law and the court and most tenants appear without legal help, and where the “transaction cost” for those unrepresented tenants in lost wages, child-care costs, stress and anxiety are exceedingly high .14 Under an economic approach, legal rights are intended to correct market failures such as these by allocating entitlements .15 In Housing Court, a right to counsel would foster “rational cooperation, full information and zero transaction costs .”
At a time of increasing economic inequality, seismic transformation of communities through gentrification, rising homelessness and racial tensions, the movement for a right to counsel in eviction proceedings in New York City should come as no surprise .16 The claim for rights often “percolates up” from communities and movements of people who perceive injustice and lack of fairness in their lives .17 People thus have an intuitive sense of justice and rights in circumstances in which their lives are affected . This theory is certainly borne out in the right to counsel context in New York City . Scholarly analysis of what it means to have a right is echoed by the sentiments of tenant leaders:
The right to counsel means living in dignity and being treated as a human being, which they don’t do at all . And also, mental well-being . You know, the right to counsel gives you mental well-being . How do you get that? You have a home, you go to sleep and you get peace of mind and you’re able to think out what problems you had the day before and what you’re going to face tomorrow . So that’s a big plus . Also, the right to counsel will stop all the hostile tactics of eviction, of harassment, of overcharging, of the multiple, you know, multiple MCIs, nonservices, cutting down on services, you know, turning off the elevator, not picking up the garbage . It goes on and on, and the right to
13 See, e.g., Jules L. Coleman & Jody Kraus, Rethinking the Theory of Legal Rights, 95 yale l.J. 1335, 1336 (1986).
14 See, e.g., new seTTlemenT aParTmenTs’ communiTy acTion for safe aParTmenTs (casa) & communiTy deVeloPmenT ProJecT (cdP) aT The urban JusTice cenTer, TiPPing The scales: a rePorT of TenanT exPeriences in bronx housing courT (2013), available at http://cdp.urbanjustice.org/sites/default/files/CDP.WEB.doc_Report_CASA-TippingScales- full_201303.pdf.
15 Coleman & Kraus, supra note 13, at 1336.
16 See generally Susanna Blankley, The Fight for Justice in Housing Court: From the Bronx to a Right to Counsel for
all New York City Tenants, appearing in this volume of imPacT.
17 For an in-depth discussion of this notion – referred to as “jurisgenesis” – and its adherents, see Michael McCann, The Unbearable Lightness of Rights: On Sociolegal Inquiry in the Global Era, 48 law & soc’y reV. 245, 248, 256 (2014) (discussing the views of Robert Cover and others about “the persistent proliferation of claims about justice and rights that percolate up from communities and movements in civil society”).
Impact: Collected Essays on Expanding Access to Justice