CIVIL JUSTICE, LOCAL ORGANIZATIONS, AND DEMOCRACY

Local organizations that lie outside of the scope of legal aid nonetheless engage legal processes. Such organizations draw on courts, lawyers, and legal problems as a basis for mobilizing and power building in racially and economically marginalized communities. They work within such communities to provide support navigating courts, obtaining legal representation, contesting unfair legal practices, and much more. These activities position local organizations as critical—yet too easily overlooked—civil legal institutions. Unlike other civil legal institutions (e.g., legal aid organizations and courts), nonlegal local organizations (e.g., tenant organizations) can operate inside and outside the formal civil legal system. Consequently, they have a distinctive vantage point and a pivotal role in developing power resources that are integral in a democratic polity. This Essay draws on in-depth qualitative interviews with tenant groups to offer an account of how local organizations engage civil legal processes and function as important institutional nodes in a larger civil legal infrastructure. By advancing knowledge of an imperative avenue through which race–class subjugated communities can exercise agency within civil legal processes, this Essay illuminates linkages between civil justice and local organizations and raises questions about how to better support tenant organizations as they undertake work that vitally enhances democracy.

The full text of this Essay can be found by clicking the PDF link to the left.

* Associate Professor, Department of Government and Brooks School of Public Policy, Cornell University.

Introduction

“[E]ven if you know all your rights and you are 100% on the right side of the law, it’s not really going to matter if your landlord has four attorneys and you show up in court against them, right? Even if you get a Legal Aid lawyer, like bless them, they’re doing the Lord’s work, but you know, they’re just out gunned. So, in terms of the legal system . . . [it’s] woefully inadequate . . . .”

— Tom, Tenant Organizer 1 Interview with Tom, Tenant Organizer, Cal. (Apr. 2021). Throughout this Essay, the identities of interviewees are protected by omitting their names, specific organizational affiliations, and other potential identifying information.

In the United States, the civil legal system is underfunded and overwhelmed. 2 See Legal Servs. Corp., The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-Income Americans 9 (2017), https://www.lsc.gov/sites/default/files/images/‌TheJusticeGap-FullReport.pdf [https://perma.cc/AZD3-YLYR] [hereinafter LSC, The Justice Gap] (“This ‘justice gap’—the difference between the civil legal needs of low-income Americans and the resources available to meet those needs—has stretched into a gulf. State courts across the country are overwhelmed with unrepresented litigants.”). There is no constitutional right to legal representation in civil courts. 3 See Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 26–27 (1981) (denying a right to counsel in civil cases); cf. Gideon v. Wainwright, 372 U.S. 335, 342–45 (1963) (guaranteeing a right to counsel for indigent criminal defendants). Nevertheless, the Charter of the Organization of American States contains rights to civil legal aid. 4 See Charter of the Organization of American States art. 45, opened for signature Apr. 30, 1948, 2 U.S.T. 2394, 1609 U.N.T.S. 119 (entered into force Dec. 13, 1951); see also Zachary H. Zarnow, Obligation Ignored: Why International Law Requires the United States to Provide Adequate Civil Legal Aid, What the United States Is Doing Instead, and How Legal Empowerment Can Help, 20 Am. U. J. Gender Soc. Pol’y & L. 273, 281 (2011) (highlighting that the United States is bound by the Charter of Organization of American States to provide civil legal aid). Moreover, the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights have found that full protection of human rights requires states to guarantee adequate access to counsel and civil legal aid. 5 See Access to Justice as a Guarantee of Economic, Social, and Cultural Rights. A Review of the Standards Adopted by the Inter-American System of Human Rights, Inter-Am. Comm’n H.R., OEA/Ser.L/V/II.129, doc. 4 ¶¶ 51–65 (2007); see also Jamila Michener, Power From the Margins: Grassroots Mobilization and Urban Expansions of Civil Legal Rights, 56 Urb. Affs. Rev. 1390, 1393 (2020) [hereinafter Michener, Power From the Margins]. Notwithstanding such directives, in 2017, low-income Americans received limited or no legal help for more than one million eligible civil legal problems, even after seeking help from legal aid organizations. 6 See LSC, The Justice Gap, supra note 2, at 13–14. The vast majority of these problems (85–97%) remained unaddressed because legal aid organizations lacked available resources. 7 Id. Signaling the extent and severity of this problem, the World Justice Project’s Rule of Law Index 2021 ranked the United States 41 out of 139 countries with respect to the access and affordability of civil courts. 8 World Justice Project: Rule of Law Index 2021, at 171 (2021), https://worldjusticeproject.org/sites/default/files/documents/WJP-INDEX-21.pdf [https://perma.cc/Y3V3-XD36].

As the opening epigraph suggests, even while civil legal attorneys are “doing the Lord’s work,” they contend with resource deficiencies that leave them “outgunned.” 9 Interview with Tom, supra note 1. In the face of these limitations, grassroots organizations emerge as fundamental institutions that navigate within the civil legal system and push for change outside of it. 10 See Michener, Power From the Margins, supra note 5, at 1391. These community-based organizations work to expand civil legal rights, provide support to people with civil legal problems, and build power within racially and economically marginalized communities. 11 See Kate Andrias & Benjamin I. Sachs, Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality, 130 Yale L.J. 552, 553–54 (2021) (noting the influence of grassroots organizations on the law); Jamila Michener & Mallory SoRelle, Politics, Power, and Precarity: How Tenant Organizations Transform Local Political Life, 11 Int. Grps. & Advoc. 209, 210 (2022) (“[C]ollective organizing among people fighting precarious and insecure housing is occurring in localities across the country. Not only does this organizing produce political opportunities for individuals, it also structures the realities of local politics.”); Michener, Power From the Margins, supra note 5, at 1414 (arguing that grassroots community organizations can expand access to the civil legal system). This Essay examines the ways that local tenant organizations engage the civil legal system. Though tenant groups do not primarily focus on legal aid, the people they organize face housing problems that are marked by clear legal dimensions. 12 For example, tenant organizations work with renters facing eviction, substandard housing conditions, inadequate disability accommodations, and other housing problems often adjudicated through legal processes. See, e.g., Hassan Kanu, D.C. Renters’ Lawsuit is a Blueprint for Tenant Organizing, Reuters (July 22, 2021), https://‌www.reuters.com/legal/transactional/dc-renters-lawsuit-is-blueprint-tenant-organizing-2021-07-22/‌ (on file with the Columbia Law Review). As such, tenant organizations operate in relation to courts, lawyers, and the law. 13 See Richard H. Caulfield, Tenant Unions: Growth of a Vehicle for Change in Low-Income Housing, 3 U.C. Davis L. Rev. 1, 1 (1971) (“Tenants have been organizing into unions in order to strengthen their position in relation to their landlords. . . . The common law has long been heavily weighted in favor of the landlord as opposed to the residential tenant . . . [and] [s]tate courts have long adhered to . . . the common law.”); Jennifer Gordon, The Lawyer Is Not the Protagonist: Community Campaigns, Law, and Social Change, 95 Calif. L. Rev. 2133, 2137–40 (2007) (describing how nonlegal local organizations use the law and lawyers—often outside of the traditional legal process—to effectuate change). This Essay demonstrates the five main mechanisms through which tenant organizations engage the civil legal system: (1) partnerships and collaborations with lawyers and legal organizations, (2) the provision of court support to tenants in need, (3) oversight of court processes, (4) interaction with court and government officials, and (5) direct action to disrupt court practices and outcomes. Identifying and understanding these mechanisms advances knowledge of an important avenue through which ordinary people within race–class subjugated communities 14 Professors Joe Soss and Vesla Weaver coined the phrase “race–class subjugated.” Such language recognizes that “race and class are intersecting social structures . . . that defy efforts to classify people neatly.” Joe Soss & Vesla Weaver, Police Are Our Government: Politics, Political Science, and the Policing of Race–Class Subjugated Communities, 20 Ann. Rev. Pol. Sci. 565, 567 (2017). can exercise agency within civil legal processes that can be alienating, difficult, and disempowering. 15 See Jamila Michener, You Planted a Seed: Legal Problems as Power Building Possibilities, Law & Pol. Econ. Project (July 15, 2020), https://lpeproject.org/blog/you-planted-a-seed-legal-problems-as-power-building-possibilities/ [https://perma.cc/77WD-EPT9] [hereinafter Michener, Legal Problems as Power Building]. Going beyond these five mechanisms of direct engagement with civil legal processes, tenant organizations also pick up where the civil legal system leaves off, 16 Caulfield, supra note 13, at 2 (“Tenant unions are enabling tenants to work within the common law, using the housing codes, to improve their living conditions.”). filling some of the gaping chasms that civil law leaves exposed, 17 See Stephen C. Halpern, On the Limits of the Law: The Ironic Legacy of Title VI of the 1964 Civil Rights Act 4–13 (1995) (explaining the limitations of federal statutes in effectuating structural change). and pushing toward structural change in policy. 18 See Michener, Power From the Margins, supra note 5, at 1414 (arguing that grassroots community organizations can expand access to the civil legal system). In these ways, local organizations build toward new possibilities and plant seeds of transformed power dynamics in the American political economy. 19 Michener, Legal Problems as Power Building, supra note 15. Ultimately, tenant organizations participate in civil legal processes in ways that buttress democracy. 20 See Michener & SoRelle, supra note 11, at 214 (“[T]enant organizations carve out a distinctive space in local politics by building power around the concerns of economically and racially marginalized communities.”).

The remainder of this Essay proceeds as follows: As background, Part I contextualizes the role of (nonlegal) local organizations in civil legal processes and posits housing as a key arena for understanding how such organizations engage the civil legal system. Part II draws on in-depth qualitative interviews to detail the five ways that local organizations work within the civil legal system and to mark the limits of their ability to do so. Part III considers the democratic implications of local organizations as key institutions operating within and beyond the civil legal structures.