The scholarly literature on the eviction legal system has repeatedly concluded that eviction courts are courts of mass settlement. In court hallways, landlords’ attorneys pressure unrepresented tenants into signing settlement agreements 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 the settlements? Based on a representative sample of eviction cases in one jurisdiction, this Article is the first to answer 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 analogue 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 through an alternative legal process.
This Article is the first to identify and conceptualize the phenomenon of civil probation in the eviction legal system. The Article empirically documents the prevalence and features of civil probation in eviction proceedings in the study jurisdiction. The Article then advocates for a new understanding of the eviction legal system as a whole through an analysis of civil probation’s consequences. These consequences are threefold. First, civil probation gives rise to a shadow legal system by establishing procedural and substantive rules for eviction that differ substantially from those established by statutory law. The data demonstrate that tenants are subject to these rules at a widespread, pervasive level, and that the rules underlie the vast majority of eviction orders issued by judges. This shadow legal system undermines the rule of law, erodes substantive rights, and threatens public regulatory enforcement. Second, civil probation results in the expansion of landlord control. It both increases the number of tenancy terms with which tenants must comply and strengthens landlords’ tool for enforcing those terms. The Article argues that the expansion of landlord control is a primary outcome of the eviction legal system. And third, civil probation raises the possibility that a phenomenon of “net-widening” of the eviction legal system is occurring, akin to the phenomenon that scholars have documented in the context of criminal probation. The Article offers recommendations for reform based on these conclusions.
* Associate Professor of Law, Georgetown University Law Center; Affiliated Scholar, American Bar Foundation. I am grateful to the American Bar Foundation and the JPB Foundation for their support of this research. I thank Justin Steil for his close collaboration on the empirical study that underlies this paper, and for his insightful comments at all stages of the writing process. For very helpful feedback on prior drafts of this piece, I thank Deborah Archer, Robin Bartram, Vicki Been, Pamela Bookman, Molly Brady, Fiona Doherty, Russell Engler, Andrew Hammond, Noah Kazis, Renagh O’Leary, Kathryn Sabbeth, Joseph Singer, Jessica Steinberg, Daniel Wilf-Townsend, and Katrina Wyman. This Article benefited from presentations at the Conference on Empirical Legal Studies, the AALS Poverty Law Workshop, the AALS Civil Procedure Workshop, NYU School of Law, Northwestern University Pritzker School of Law, the University of Maryland Francis King Carey School of Law, Georgetown University Law Center, the George Washington University School of Law, Kansas University School of Law, Suffolk University Law School, the University of Missouri-Kansas City School of Law, and the University at Buffalo School of Law. Meredith Angueira provided excellent research assistance. I am very grateful to the Stanford Law Review editors for their thoughtful and detailed editorial work.