Nicole Summers, ‘Civil Probation’

The scholarly literature on the eviction legal system has repeatedly concluded that eviction courts are courts of mass settlement. Landlords’ attorneys pressure unrepresented tenants into signing settlement agreements in the court hallways in a factory-like process, and judges approve the agreements with a perfunctory rubber stamp. Yet while we know most eviction cases settle, no one has asked, much less answered, the salient follow-up question: what are the terms of these settlements? Based on the results of a rigorous study of a representative sample of eviction cases, this Article answers that question, and in doing so, generates a novel theory about the eviction legal system. The Article demonstrates empirically that the substantial majority of eviction settlements in the study jurisdiction contain a distinct set of interlocking terms that amount to what the Article labels ‘civil probation’. Civil probation is the civil analog in the eviction context to probation in the criminal context. Specifically, it is the imposition of court-ordered conditions on a person’s tenancy that, if violated, can result in swift eviction with few procedural safeguards. This Article is the first to conceptualize the phenomenon of civil probation and identify its existence in the eviction legal system. Through detailed data analysis, the Article empirically documents the prevalence of civil probation and describes its key features in the study jurisdiction. The Article then advocates for a new understanding of the eviction legal system as a whole through analysis of civil probation’s consequences. First, a shadow legal system exists that operates alongside the statutory system that formally governs eviction proceedings. This shadow system undermines the rule of law and threatens public regulatory enforcement. Second, an ideology of control underlies the eviction legal system. Landlords, through the imposition of civil probation, use eviction filings not simply to recover possession or to collect rent, but rather as mechanisms to more tightly control, monitor, and regulate their tenants’ conduct. And third, a phenomenon of ‘net-widening’ of the eviction legal system is likely occurring, akin to the phenomenon that scholars have documented in the context of criminal probation. Civil probation motivates landlords to initiate eviction filings they would not initiate otherwise, and in doing so expands the reach and scope of the eviction legal system. The Article offers specific recommendations for reform based on these conclusions.

Summers, Nicole, Civil Probation (August 3, 2021).

First posted 2021-08-31 13:00:21

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