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.”

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Coming of Age at the End of History

NB: This post is part of an ongoing series on LPE & Social Movements. For the framing pieces, see here and here

John Whitlow – 

social-movementsIn 1989, in the midst of the collapse of the Soviet Union and just before the fall of the Berlin Wall, Francis Fukuyama argued, famously, that we had reached “the End of History.’ Echoing Margaret Thatcher’s dictum that ‘there is no alternative’ to neoliberal capitalism, Fukuyama averred that the triad of free markets, liberal democracy, and consumerist culture had become universal, enveloping the planet so thoroughly as to flatten historical time. There would be no more revolutionary upheaval, no more transformative social change. An ever-expanding capitalism, governed by some variant of representative democracy, was the only game in town, and it was here to stay.

I was fifteen when Fukuyama penned “The End of History,” and – as much as I am loathe to admit it – I am a child of neoliberalism. I was born at the end of 1974, just as New York City entered its fateful descent into fiscal crisis. I grew up in Baltimore during the Reagan years, a witness to the ways in which racial capitalism eviscerated the city’s black and white working class, leaving many of my friends and their families adrift in an economy and a place that had been structurally abandoned. All the while, I was indoctrinated into a public policy common sense of austerity, privatization, and an expanding carceral state; as well as a hollowed-out notion of citizenship in which our subjectivities are constructed primarily through individual-entrepreneurial, rather than solidaristic-democratic, terms.

Looking back, I am struck by how much of this I’ve imbibed, how much it has ordered what I’ve regarded as accepted knowledge, even as I’ve attempted to resist it. For most of my adult life, I’ve been a poverty lawyer/movement lawyer/community lawyer (the terminological distinctions matter, but not so much for the purposes of this essay), and, at times (especially recently) I have found myself questioning how I’ve gone about my work. Of course I knew that the pronouncements of Fukuyama and Thatcher were bankrupt – that they were the product of a politicized theology – but to what extent have my own political, intellectual, and professional horizons been limited by an unwitting, silent acceptance of that same theology?

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Anti-State Statism and Slumlord Capitalism

John Whitlow –

Ruth Wilson Gilmore has written that “we are faced with the ascendance of anti-state state actors: people and parties who gain state power by denouncing state power.” This tendency surfaced in the wake of the economic and legitimacy crisis of liberal capitalism in the 1970s, and has gained strength in the decades since, taking hold in both major political parties and surviving a catastrophic financial collapse a decade ago. The Trump administration is the most garish and contradictory iteration yet of this tendency: [1] an agglomeration of race-baiting grifter capitalists intent on slashing the last vestiges of the safety net while at the same time expanding the carceral and militarized functions of the state. I have argued elsewhere that it is useful to view the current administration as the federal-executive embodiment of the unscrupulous landlord. In this post, I will examine the administration’s particular brand of anti-state statism through the prism of the Trump family’s real estate practices.

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Beyond Access to Justice: Challenging the Neoliberal Roots of Hyper-Gentrification

John Whitlow – 

New York City recently became the first jurisdiction in the United States to guarantee a right to counsel for poor people at risk of eviction. This was an important step in the fight for equal access to the courts, and a significant victory for tenant advocates who had waged a decades-long campaign to ensure fairness for people on the verge of losing their homes. I cut my teeth as a New York City tenant attorney in the early 2000s, when the right to counsel felt closer to a pipedream than a reality, and I can say unequivocally (and uncontroversially) that providing tenants with a lawyer when they enter the maw of housing court is a good thing. At the least, it will keep landlord attorneys and judges on their toes and reduce the stress and trauma tenants feel when navigating a byzantine system on their own. At the most, it will allow people to mount robust defenses and save their apartments, in the process preserving some of New York’s evaporating supply of affordable housing. But I can also say that it is not nearly enough to derail the hyper-gentrification that has been a through line of recent economic development policy and has its roots in the fiscal crisis of the 1970s.

In the context of an over-heated housing market, the right to counsel should be viewed as a limited intervention that operates when eviction is imminent, i.e. after the structural sources of displacement have done their work. Failure to recognize the limits of the right to counsel – and of access to justice paradigms more generally – naturalizes those structural sources and legitimates as normal the widening inequalities produced by our current political-economic and social order. Challenging inequality and displacement in a deep and lasting way requires moving beyond access to justice and critically engaging the core tenets of market-driven urbanization.

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