Moving Beyond Liberal Legal Rights: An Expansive Vision of Right to Counsel

This week, we’re sharing two discussions on John Whitlow’s recently published article reflecting on New York’s right to counsel in evictions proceedings. Our contributors share visions of right to counsel that move beyond due process rights. The contributors show that right to counsel campaigns are part of broader movements that seek to address the material deprivation underlying the need for counsel in the first place.

John Whitlow –

In his seminal article about the relation of Gideon to the crisis of mass incarceration, Paul Butler poses the following question: “When the problem is lack of a right, one keeps going to court until a court declares the right. When the problem is material deprivation suffered on the basis of race and class, where, exactly, does one go for the fix?” As an increasing number of cities enact the right to counsel in eviction proceedings, it is imperative that we apply Butler’s query to the deep crisis of affordable housing. To what extent does a right to counsel in this context have the capacity to move beyond the confines of individual Housing Court cases, to the structural underpinnings of gentrification and displacement? Can the right to counsel be wielded in a manner that builds the power of an emergent tenant movement that is mobilizing for redistributive policy reforms and is fighting to prioritize the use value of housing over its value as real estate? In the following paragraphs—which are a distillation of the arguments made in my recently-published article—I address these questions, pointing out how the right to counsel is being deployed expansively by tenants and organizers in New York City as part of a broad-based effort to democratize and de-commodify housing.

Within the liberal legal tradition, rights have typically operated as guarantors of formal, rather than structural, equality. That is, these formal rights by and large fail to disturb—and may even reify—the structural arrangements that underpin social inequalities and relations of domination and subordination. Because the political emancipation that theoretically flows from liberal rights regimes is located squarely within the prevailing social order, its benefits typically do not redound to those at the bottom of that order. A narrow focus on legal rights in this context tends to individualize inequality and stratification, and in the process legitimizes the status quo by failing to contend with how power is distributed in society. Wendy Brown has put this set of concerns about legal rights succinctly: “Rights in liberalism . . . tend to depoliticize the conditions they articulate.”

This is not to say, however, that a discourse of rights cannot play a significant role in the formation of a radically democratic and transformative political project. As Kimberlé Williams Crenshaw has persuasively argued, social movements have deployed legal rights as a central organizing feature, insofar as the use of a rhetoric of rights becomes a potent movement-building act for people who have been constructed as right-less. In addition to the potential for rights to signal a sense of belonging to those who have been excluded from the body politic, a discourse of legal rights can mobilize group action, as well as provide an agenda for group mobilization. The civil rights movement stands as an exemplar of this, as civil rights activists strategically deployed a framework of legal rights to help galvanize a political community—comprised of historically oppressed people—that was seeking to transform society’s governing values and institutions in relation to race, equality, and citizenship.

The challenge for advocates seeking to amplify the valence of legal rights vis-à-vis social movements is to formulate and deploy them to take aim at the structural causes of inequities and injustices, as Brown’s critique suggests, and to do so in a manner that builds the collective power of subordinated people, as Crenshaw asserts. In determining how the right to counsel in eviction proceedings fits into this matrix, it should be noted that it is open to competing interpretations. When interpreted narrowly, the right to counsel is individualized and cast in due process terms that aim mainly to balance the representational playing field in eviction cases and to ameliorate the more abusive dynamics of Housing Court. In a court that is widely regarded as disfavoring tenants, the majority of whom are poor Black and Latinx women, these improvements are welcome. More cynically, the right to counsel can also be interpreted as an explicit acknowledgment of the social costs of the de Blasio administration’s neoliberal economic development plan. In this framing, the right to counsel operates as a palliative measure, adopted by the de Blasio administration, to contain the damage wrought by its market-based approach to the housing crisis.

Notwithstanding these points, the purpose and design of the right to counsel, as it has been constructed in New York City, are unique, facilitating its interpretation in expansive terms. The tenants and advocates who organized for the right to counsel to become law have taken up this broadened interpretation, which takes seriously the notion that the right to counsel was intended to intervene substantively in the affordable housing crisis and to contend with the private power of the real estate industry. The Right to Counsel (RTC) Coalition, the coalition of grassroots groups in New York City that organized for the right to counsel to become law, is using this recently-won right in its efforts to build the power of tenants and to push for additional redistributive and democratizing reforms. The RTC Coalition’s explicitly stated analysis moves beyond the frame of individual eviction proceedings, politicizing Housing Court as a site within racial capitalism where landlords assert control over tenants. For the RTC Coalition, the right to counsel is a tool to help subordinated people articulate a collective narrative of their mistreatment by a legal system that favors landlords, in a political economy dominated by real estate.

Conceiving of the right to counsel as embedded in a larger political economic terrain connects the right to redistributive tenant protections, such as enhanced rent stabilization like the kind passed by the New York State Legislature in the summer of 2019. This in turn has the effect of recasting the right to counsel as a piece of what Chester Hartman calls “the right to stay put.” The latter is expressly based on principles of equity and refers to the right of tenants to remain in their homes irrespective of market forces. It is particularly applicable to cities affected by market-based gentrification and displacement. In articulating the right to stay put, Hartman notes that our legal system already places significant limits—such as zoning regulations, housing and building codes, eminent domain laws, and rent regulation—on the absolute right of property owners to do with their property as they see fit. In places with rapidly rising land values, according to Hartman, a further step—e.g. strict just cause eviction and rent control—must be taken to secure a right to remain for poor and working class tenants at risk of displacement.

While Hartman does not include the right to counsel in this scaffolding of tenant protections, it is a useful and common-sense addition to the right to stay put. New York City Housing Court, despite its original purpose of raising housing standards, has historically functioned as a tool wielded by property owners to reclaim their assets, the latter doubling as tenants’ homes. In Housing Court, landlords are almost always represented by counsel, while the vast majority of tenants are forced to navigate a complex and intimidating legal system on their own. In this sense, Housing Court should be viewed—as the RTC Coalition argues—as a piece of a larger system that operates to alienate and disempower tenants at the expense of landlords, against the backdrop of a rapidly gentrifying city.

Addressing our deep crisis of affordable housing in a meaningful way requires a range of efforts, including the right to counsel, that, taken collectively, build the organizing capacity of tenants and place property within the reach of democratic and redistributive intervention. Recall Butler’s admonition to move beyond legal rights to the sources of poor people’s material deprivation. The right to counsel—to the extent that it is interpreted expansively to contend with the structural underpinnings of the housing crisis—can play a vital role in a project that does just that.

John Whitlow is an Associate Professor at CUNY School of Law.