Civil Probation

Abstract

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 the settlements? Based on the results of a rigorous study of a representative sample of eviction cases in one jurisdiction, this Article is the first to provide an answer to 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 both to conceptualize the phenomenon of civil probation and to identify its existence in the eviction legal system. Through detailed data analysis, 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 analysis of civil probation’s consequences. These consequences are three-fold. First, civil probation gives rise to a shadow legal system. It does so by establishing procedural and substantive rules for eviction that differ substantially from those established by statutory law. The empirical 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 terms with which tenants must comply and strengthens landlords’ tool for enforcing the tenancy terms. The Article argues that the expansion of landlord control is a primary outcome of the eviction legal system overall. 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.

Keywords: eviction, access to justice, empirical legal studies