46 Pages Posted: 5 Aug 2022 Last revised: 23 Oct 2022
Date Written: July 1, 2022
This Article examines the legal mechanics of the courts that issue eviction orders. It analyzes these courts in the context of the COVID-19 pandemic and the federal eviction moratoria. The eviction phenomenon preceded the pandemic, but the pandemic exaggerated many of its features. How the eviction courts responded to the eviction moratoria reveals a great deal about how these fora have been functioning all along. While the eviction moratoria were important, the design of eviction courts limited their impact.
The Article identifies ten groups of laws that structure critical design features of eviction courts: (1) filing fee statutes that make it cheaper to pursue eviction than other forms of civil relief; (2) substandard method of service rules; (3) default rules that allow cases to be decided against tenants in their absence; (4) short turnaround times between complaint filing and trial; (5) limits on discovery procedures that might uncover evidence in support of tenants or create delay; (6) jurisdictional limits on the defenses and counterclaims tenants may raise; (7) rent bond requirements that prevent tenants from raising defenses unless they pay rent allegedly due; (8) laws structuring the provision of legal services so that pro se tenants and represented landlords are the norm; (9) laws establishing qualifications of adjudicators so they may operate without legal training; and (10) obstacles to appeals.
The Article concludes that eviction court operations reflect a legal architecture designed not to recognize tenants’ rights, and instead this legal architecture supports hierarchical relations between owners and tenants. While the urgency of the eviction crisis may appear recent, the U.S. has a long history of depriving subordinated people of homes while others profit from the scarcity and instability of housing. The design features of eviction courts serve to maintain this social order.
Keywords: Eviction, Housing, Courts, Civil Procedure, Access to Justice, Civil Adjudication, Property, Moratorium
JEL Classification: D02, D18, I131, P14, P16, P48, R31
Suggested Citation: Suggested Citation