This post is part of a symposium on the law and political economy of civil procedure. Read the rest of the posts here.
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People engaged with the criminal legal system have long recognized the need for procedures to buffer the power of prosecutors, police, and judges. Civil procedure, too, must include speed bumps to restrain the force of the state, but civil procedure reformers tend to overlook this, valorizing efficiency and seeking to streamline what they see as overly expensive and time-consuming processes. Reformers argue, for instance, that complex procedures put access to justice out of reach for many litigants.
As I and others have previously argued, however, this quest for simplicity jeopardizes important values. Careful deliberation may be necessary to avoid running roughshod over individual rights. More fundamentally, as we’ve learned from history and political theory, delay is sometimes the only means of restraining the violence of the state. The courts issue the orders that authorize government force, so “maximal efficiency means maximal tyranny,” while process can play a critical role in shielding the citizenry from the crush of state power. In this brief post, I highlight how this phenomenon plays out in a forum that reflects a preference for maximum efficiency: eviction courts.
The “summary” eviction process is designed for speed. That process can include: entry of default judgment in seconds, with no evidentiary showing; as few as two days between service of a summons and complaint and trial; prohibition on discovery devices that could otherwise disclose relevant evidence; jurisdiction rules that bar hearing defenses in the same proceeding, even if those defenses might undermine a plaintiff’s entire case; and settlements so-ordered by judges without substantive scrutiny. All of these features are, from a certain perspective, efficient. They move cases very quickly.
They also make evictions far cheaper to pursue than the federal cases studied in law schools. In the classic arc of federal civil procedure, defendants receive a minimum of 21 days to respond to a complaint or file a motion to dismiss, and if the case survives the motion to dismiss, the parties usually engage in months or years of exchanging information and evidence before filing summary judgment motions, engaging in settlement negotiations, and potentially preparing for trial. All of that litigation activity can be resource intensive. The summary process, by contrast, makes eviction cases fast and cheap.
Shortcuts on process save resources not only for plaintiffs but also for courts. Evidence indicates that on average eviction trials last less than two minutes from the time the judge calls the case to the time they enter judgment. By expending so little time and attention on each matter, the courts process massive numbers of cases—indeed, eviction cases represent more than 20% of the nationwide civil caseload, including state and federal courts combined—with few judicial resources. This is intentional: eviction judges measure success by the speed of the dockets.
But speed can sacrifice due process, other individual rights, and accuracy of outcomes. The summary process also undermines any illusion that courts are in the business of interpreting or developing the law. So, both defendants and the public lose out, individually and in the aggregate. Even the supposed savings of time and money may be questionable. As I discuss further in my current book project, Courts & Capital, the shortcut approach to justice benefits capital and not necessarily the rest of us. Here I’ll highlight just two examples.
The first is the procedure for scheduling trials. Courts typically schedule many eviction hearings for the exact same date and time. On the morning of trial, attendance is taken for all the cases, and then tenants just sit and wait an unspecified length of time for their trials. When each trial begins will depend largely on the needs of the landlords’ lawyers. They generally manage a volume business and intentionally schedule piles of cases concurrently, with the plan to bang them out one after the other, in quick succession. Judges typically defer to landlords’ counsel and cooperate in bunching together each attorney’s caseload.
In most jurisdictions, the vast majority of tenants are unrepresented, so they receive none of the benefit of this scheduling device, and they carry all of the cost. Without anyone to appear on their behalf, tenants must be present for the call of the case and then wait – frequently all morning or into the afternoon – causing them to miss work and other important commitments. The time wasted by tenants and their families, however, saves resources for plaintiffs and courts. Plaintiffs pay for counsel at a flat rate based on the number of appearances, and efficient case processing keeps fees low. Courts, meanwhile, can pay fewer and lower judicial salaries because they churn through cases quickly. This scheduling approach maximizes landlords’ profits and supports court processing of a high volume of cases with few judicial resources, but it is deemed efficient only because of whom the system values and whom it does not. To deem it efficient to keep tenants waiting is to determine that their time has less value than that of the judges, or that it is socially useful to keep down the costs for plaintiffs pursuing evictions.
A second example of the one-sided concern for efficiency in eviction courts is the jurisdictional limitation on claims that eviction courts hear. Many states and localities severely restrict counterclaims and even defenses in eviction proceedings. Although under state law a landlord’s failure to maintain a home in livable condition is generally a basis for reducing the tenant’s rent obligation, the U.S. Supreme Court has ruled that states may prohibit tenants from raising this as a defense in eviction proceedings. The Court explained that restricting the issues simplifies eviction cases, and tenants can initiate separate, affirmative lawsuits to challenge substandard conditions and recover rent. But bringing these new lawsuits would require paying filing fees and starting all over, and tenants could be evicted in the interim. And even just in terms of finality, bifurcation seems to complicate and slow matters.
Behind the Court’s logic is an unspoken reason why the exclusion of defenses may be “efficient” for the courts: the follow-up proceeding almost never happens. Tenants who are evicted for alleged non-payment of rent rarely have the means or incentives to pursue new litigation, and conditions cases against landlords are too infrequent. Once again, the faster, cheaper processes create efficiencies for the courts and for landlords, but these gains are achieved by making it less likely the tenants receive justice.
Zooming out from these specific examples, one might say the ultimate inefficiency of eviction proceedings is that, as a solution to a social problem, it is wasteful. Forcibly displacing families from their homes makes it harder for people to find housing in the future, contributes to homelessness, and results in myriad negative social consequences. Indeed, one of the reasons some cities have begun appointing counsel for tenants is legislative testimony indicating that it would actually save the localities money on medical care, benefits, policing, and other social services.
To critique eviction itself may go beyond the process to the substance, but we know procedure drives substance. The courts choose which substance to enforce and which to set aside. If a judge signs an eviction order, a government official will physically separate a family from their home, thereby protecting both the individual landlord’s property interests and the structure of landlord-tenant relationships. Before this happens, certain steps must be followed, and the demands of those steps influence the underlying dynamics. The speed, cost, and certainty of reaching the desired conclusion influences landlords’ readiness to assume the position of plaintiffs and tenants’ fear of becoming defendants.
The eviction system is an example of a super-fast court that is super-cheap for plaintiffs, and it demonstrates what goes wrong when we prioritize this kind of efficiency. When we shift our focus from efficiency to equality and look at the power and interests behind “efficiencies,” we see the processes for what they are. The function of eviction court design appears to be to maximize profits for the landlord plaintiffs. Through the court, the state transfers resources from communities of color to, increasingly, white-controlled corporations. At its core, the emphasis on efficiency masks who wins and who loses. In eviction court, efficiency means more profit for those with capital and less justice for those without. Beyond eviction, when civil justice reform is taken up in the name of efficiency, we must always ask what, or whom, does efficiency sacrifice?
