Navigating an Overburdened Courtroom: How Inconsistent Rules, Shadow Procedures, and Social Capital Disadvantage Tenants in Eviction Court

Abstract

Landlords and tenants in eviction court navigate a complex legal and administrative process. Eviction courts are overburdened and under pressure to process enormous numbers of cases each day. From inside one such courtroom, we draw on in-depth ethnographic observations and administrative court records from before the pandemic to examine how everyday practices shape courtroom experiences for tenants and landlords. From the moment they enter the courtroom, tenants encounter unwritten rules and informal processes that prove difficult to navigate. Confusing and inconsistently applied rules leave unrepresented tenants at a disadvantage relative to landlords, who are much more likely to have legal counsel. Courtroom actors rely on shadow procedures such as settlement agreements to save time and improve courtroom efficiency, which reinforce power asymmetries between landlords and tenants. While landlords and their attorneys rely on their familiarity with courtroom actors to garner systematic advantages, tenants lack these social capital resources. Our theory of systematic disadvantage shows how these rules, practices, and procedures come together in an overburdened courtroom to amplify the disadvantages faced by tenants at risk of an eviction.

Legal Aid and Social Policy: Managing a Political Economy of Scarcity

“…Instead, when political institutions produce economic precarity and inequality, the civil legal system is one of the few spaces left for adjudicating the resulting loss of material stability. People end up in housing court because they cannot pay rent or because they live in dilapidated homes that have suffered from enduring disinvestment; they end up in debt court because they rely on credit to make ends meet due to stagnating wages and lack the consumer financial protections that would shield them from predatory lenders; they end up in administrative hearings fighting to receive or retain public benefits because programs like Medicaid, SNAP, and SSDI are designed to make obtaining and retaining benefits difficult (Desmond 2016;Fleming-Klink, Mccabe, and rosen 2023;Lens 2009;Sorelle 2020;Thurston 2018). Legal institutions "operate in the breach" to stem the ensuing deprivation-not because legal actors (e.g., judges) are uniquely benevolent but, rather, because civil legal claims often cannot be refused by the courts and therefore must be adjudicated.…”

Every Month Like Clockwork? Patterns and Prevalence of Serial Eviction Filing among Landlords

“…Identifying heterogeneity in patterns of serial eviction filing is an important advancement in the growing body of scholarship on the strategies that landlords use to collect rent from tenants, including the way they rely on an overburdened court system to do so (Fleming-Klink, McCabe, and Rosen 2023; Public Justice Center 2015; Sudeall and Pasciuti 2021; Summers 2023). They underscore the variation of landlord practices and point to the heterogeneous meaning of “landlording” in America.…”

“…For tenants, these patterns point to wide variation in experiences of eviction and eviction filing in their everyday lives. Importantly, an eviction filing can have negative consequences, including housing insecurity and economic hardship, even when it does not result in an eviction (Desmond 2012; Desmond and Kimbro 2015; Fleming-Klink et al 2023; Garboden and Rosen 2019; Leung et al 2021; So 2022).…”