Today we’re reposting a letter from Professor Noah Zatz to his City Counsel regarding evictions during the pandemic:

Dear City Council — Thank you for all the hard work going into responding to the COVID-19 crisis locally, both by you and City staff. I hope you each are safe and secure. I wanted to write briefly about the eviction moratorium issue. Some of the specific questions raised by the moratorium are those that are central to my academic expertise in antipoverty & social insurance policy design (unlike housing in general, on which I speak merely as a well-informed resident). I hope this analysis drawing on that expertise is useful to the City. I am writing quickly, so apologies for any incompleteness or errors.

The bottom-line is this: Although it is well-intentioned and makes some sense in theory, the attempt to limit the moratorium to COVID-19-impacted individuals will likely make it almost completely useless in practice. I urge you to adopt an across-the-board eviction moratorium even if you are motivated only by ensuring protection for COVID-19-impacted households.

There are three key pieces of the restriction that work together to produce this result:

1. a) the burden is placed on the tenant to establish the defense (“if the tenant is able to show”),
2. b) the protection is limited to an “inability to pay rent,” and
3. c) the protection is further limited to such an inability “due to circumstances related to the COVID-19 pandemic.”

First, remember that we are imagining someone who not only faces the restrictions, shutdowns, health, and social isolation imperatives that all of us are struggling with, but who also–by definition–is facing severe economic distress. This person now has to go to court to prove a defense, collect documentation, contact witness or sources of documentation, etc. When doing so, they cannot be working, caring for their family (kids home from school, etc.). What a nightmare.

Second, “inability to pay.” This concept is central to my decades of academic work on antipoverty policy. It is a morass, totally unsuited to first-time deployment during an emergency between litigants of unequal power. Is someone “unable to pay” if they have no present income but could exhaust retirement savings to pay one month of rent? What if they have to choose between paying rent and medical care? Food? Fixing their car? In some sense, one could say, “they have the money!” But is that what you mean? If not, what do you mean? Could anyone know in advance? How would a landlord litigate this? Is someone unable to pay if they could ask for money from someone who is not on the lease? What if they could close the gap by picking up some gigs with Task Rabbit?  Again, imagine the documentation/proof issues.

Third, “due to circumstances related to the COVID-19 pandemic.” Again, the kind of issue central to disaster relief programs, unemployment insurance, and the like. What if someone fell behind on their rent LAST month — not due to COVID-19 — but now THIS month is unable to make up the gap b/c COVID-19? Imagine all the proof and line-drawing issues with the concept of “due to.” Is every layoff in LA County Since March 1 due to COVID-19? If not, how are we to find out which ones are? Is it by industry? What if the industry is not severely affected, but the boss shut down the company voluntarily to protect the workers? If the boss’ mother got sick, and so the boss decided to shutdown? If the worker loses their job b/c they are caring for a child dismissed from school, is THAT due to COVID-19? What if it’s not their child, but their sister’s? Again, imagine the documentation/proof issues.

Note that all of these severe problems apply even if you focus narrowly just on the people intended to be protected by this moratorium. Obviously, there are also very serious broader questions about whether this is a time for ANYONE to be forced to try to fight an eviction and potentially need to find emergency housing during a crisis (especially no-fault evictions). But even if you are unmoved by those problems, in practice this moratorium is likely to fail to protect even those narrowly targeted by it. Under these circumstances, the only way to protect them is to protect everyone.

I doubt that this is the time (if ever!) when you are interested in reading an academic law review article, but in case you are interested in seeing (or verifying) my work in this area, here is the link to my essay “Poverty Unmodified: Critical Reflections on the Deserving/Undeserving Distinction”: https://www.uclalawreview.org/pdf/59-3-3.pdf.

I understand that there may have been limitations on what could be done by emergency order (though I do not know), but if a universal moratorium cannot be issued by emergency decree, I urge the Council to immediately pass a universal moratorium ordinance. Thank you again for all your efforts at an incredibly difficult time. I hope you find this analysis to be helpful to your deliberations.

Sincerely,

Noah Zatz

…on Thursday! Because time is just a social construct, man.

Plenty of action on the blog since we last rounded up.

We hosted symposia on money bail reform, on interdisciplinary methods in political economy, on Ganesh Sitaraman and Anne Alstott’s book on public options, and on Daniel Markovits’s book on meritocracy and inequality.

Amy Kapczynski also situated the law and political economy of care in the context of the accelerating global pandemic.

This week we’re featuring two discussions of Anne Alstott & Ganesh Sitaraman’s The Public Option:

Amanda Jaret & Sandeep Vaheesan – 

Working people in the United States are fragmented by race, gender, ethnicity, religion, and status. We are also stratified by the law itself—specifically the extent to which we are entitled to labor and employment rights. Some workers have the right to take a new job when and where they want, to organize their workplaces, and to earn overtime pay. Others, due to their income, occupation, or location, have none of these rights. We live in a society in which, all too often, decent working conditions are treated as special dispensations, not fundamental rights.

Labor used to look different. In The Public Option: How to Expand Freedom, Increase Opportunity, and Promote Equality, Ganesh Sitaraman and Anne L. Alstott identify the Treaty of Detroit as the milestone in the development of more equitable political economy at midcentury. The Treaty of Detroit – a monumental 1950 agreement between the United Auto Workers and General Motors – established the postwar suite of workplace protections and employer-sponsored health and retirement benefits that would define unionized workplaces for most of the next three decades. Sitaraman and Alstott argue that the Treaty of Detroit stalled the development of what they term “public options” for, among other things, health care, childcare, and retirement benefits.

We wish to provide some additional context for the intertwined historical and legal developments that produced and perpetuated the postwar settlement. We agree that expanding public options is a worthy goal and share Sitaraman and Alstott’s skepticism about both the viability and desirability of reviving the Treaty of Detroit. However, the transformative social vision Sitaraman and Alstott articulate will neither be achievable nor effective without the enactment of basic labor and employment rights for all workers. Universal rights would foster broad solidarity among working people—a precondition for establishing and sustaining public provisioning of an array of goods and services and for preventing public options from merely entrenching existing inequalities.

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This week we’re featuring two discussions of Anne Alstott & Ganesh Sitaraman’s The Public Option:

Frank Pasquale – 

While promises of a “universal basic income” generate a lot of excitement, we should also also consider the benefits of “universal basic services.” As we do so, Sitaraman and Alstott’s The Public Option: How to Expand Freedom, Increase Opportunity, and Promote Equality will be a vital resource. The book combines a crisply written history of government service provision with compelling policy arguments for establishing or extending it in numerous areas. These areas include:

As they address each sector, Sitaraman and Alstott offer a clear accounting of the values at stake. They domesticate progressive policy as an adjunct to (and not a replacement of) markets: public options serve as benchmarks for private services, rather than substitutes for them. They develop a competition-focused narrative about the need for public options: namely, that markets often fail consumers. However, another narrative—of cooperation—may be just as important to securing political support for their goals. Economic rhetoric has consequences, and a more balanced narrative of public options, as enhancing both competition and cooperation, may help ensure they transcend the consumerist bias that has marred so many projects of economic reform over the past few decades.

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Amy Kapczynski – 

It is now clear that we are entering a new phase of the global COVID-19 pandemic. The virus appears in new countries around the world each day. New cases are now regularly reported in the United States, and as testing is scaled up, that number will increase, probably substantially. It is clear now that the virus will spread in a sustained way in the community here. The estimated mortality rate derived from the data from China resembles that of the 1919 flu, which killed 50-100 million people around the world. As we are better able to track mild cases, we may find that it is substantially, even an order of magnitude, less deadly. Under every plausible scenario, however, this outbreak is likely to be extraordinarily disruptive. It will surprise no reader of this blog that the US is ill-prepared for this, and that the harms of this pandemic will not be equally visited on all. Yesterday, I worked with a group of more than 450 law and public health experts to put out a public letter addressed to federal, state, and local leaders, to identify essential aspects of an effective and fair response. It may be worth a read for those thinking about the political economy of pandemics. It illustrates some familiar LPE themes, and shows how features of our socio-legal context that drive injustice and inequality will undermine the COVID-19 response.

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