Judicial Deference and Institutional Character: Homeowners Associations and the Puzzle of Private Governance

University of Cincinnati Law Review, Vol. 81 [2013], Iss. 3, Art. 2

59 Pages Posted: 2 Aug 2017

See all articles by Michael Pollack

Michael Pollack

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: June 23, 2013

Abstract

Much of the study of judicial review of governing institutions focuses on the institutions of public government at the federal, state, and local levels. But the courts’ relationship with private government is in critical need of similar examination, and of a coherent framework within which to conduct it. This Article uses the lens of homeowners associations—a particularly ubiquitous form of private government—to construct and employ such a framework. Specifically, this Article proceeds from the premise that judicial deference is less appropriate the more unaccountable a governing institution is, and therefore develops a set of tests for institutional accountability. Applied to the homeowners association, this accountability analysis reveals that the analogy most often resorted to by state courts—that of the corporation—is inappropriate, because homeowners associations and corporations have fundamentally different internal accountability mechanisms. They therefore require different sorts of judicial review. The Article closes by employing the same accountability tests to show that a more fitting deference regime for homeowners associations could be drawn from an analogy to administrative agencies.

Suggested Citation

Pollack, Michael, Judicial Deference and Institutional Character: Homeowners Associations and the Puzzle of Private Governance (June 23, 2013). University of Cincinnati Law Review, Vol. 81 [2013], Iss. 3, Art. 2, Available at SSRN: https://ssrn.com/abstract=2753371

Michael Pollack (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

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