I’ve long thought that justice should be considered a goal in itself, that treating people fairly is an important part of society, regardless whether we can measure the outcomes of that justice. People want to be treated fairly. I’ve based those arguments only on the words in our nation’s founding documents and on political philosophy.
So I’m very excited to learn about the research by Tim Tyler and others to measure the importance of procedural fairness. Yale Professor Tom Tyler’s large body of work demonstrates that people’s perception of how fairly they are treated by legal authorities matters; procedural justice has significant, long-term effects on people’s lives.
He contributes to this resource from the National Center for State Courts. He mostly researches criminal law, but he has written about access to justice. Here is also a good summary and a video.
The benefits of procedural justice that he discovers include long-term compliance, which may seem more appropriate for criminal justice at first, but it is also very important for decision-making processes for eviction. If an unfair procedure makes future compliance less likely, then being screwed in housing court may make it less likely that a person complies with landlord/tenant law in the future. How many tenants who trash an apartment before leaving were previously cheated out of a security deposit or unfairly evicted and have lost faith in finding fairness in the legal system? Is a landlord more likely to illegally lock-out a tenant if they feel like they haven’t been heard in eviction court? It’s easy to imagine how eviction courts that are experienced as unfair could start a vicious cycle.
Tyler identifies four main aspects of procedural fairness, and claims these four factors will determine whether a procedure is determined to be fair.
- Voice – whether the person can tell their story and participate (actually, voice isn’t itself a factor in procedural fairness, but it influences all three of the other factors)
- Neutrality – whether the decision-maker is perceived to be neutral
- Respect – whether the person is treated with respect
- Trust – whether the person trusts the decision-maker and others
We need to bring Tom Tyler’s research into eviction courts. That starts with determining ways to measure justice, not just economic outcomes for some participants.
For an interesting historic take on how fairness is viewed, here is a Professor Ian Morris lecture at the London School of Economics.
A simple understanding of the timeline of the oppression of African-Americans is central to any understanding of reparations, or how to fix our country. Ta-Nehisi Coates summarizes it recently:
To briefly restate it, from 1619 until at least the late 1960s, American institutions, businesses, associations, and governments—federal, state, and local—repeatedly plundered black communities. Their methods included everything from land-theft, to red-lining, to disenfranchisement, to convict-lease labor, to lynching, to enslavement, to the vending of children. So large was this plunder that America, as we know it today, is simply unimaginable without it. Its great universities were founded on it. Its early economy was built by it. Its suburbs were financed by it. Its deadliest war was the result of it.
So in the sixties, black people had less money because of explicit state-led discrimination. That gap in wealth would linger over generations in any circumstances:
But if you add that generational weatlth gap to our particular circumstances, to new suburban development patterns, where neighborhood segregation turns into fragmented taxation, to the separation of low-income areas from manufacturing employment, and to a criminal justice system that allows lots of racially-biased discretion at various points to create vast racial disparities in history’s largest prison system, then that explains how the centuries of racial oppresion still affect us after “so long”.
Suburbanization is the main tool that we use to create and maintain segregation, if we can’t do it explicitly in the law. One of the best chroniclers of the high cost we are paying for suburbanization is Strong Towns, an organization run by Chuck Marohn dedicated to creating strong cities, towns and neighborhoods. Their blog and podcast are both worth following.
Strong Towns argues that our current development patterns are bankrupting our country, without focusing on causes of the problems like racism. Even in this podcast episode Designed to Decline about Ferguson, race is ignored in the explanation of how some areas of our regions were left behind.
This is a process that left behind anybody who didn’t have the assets or wealth to move to the new suburbs when the process started. The fact that one group of people didn’t have the assets or wealth at that time is a separate issue.
Most of the courts in my service area have form Complaints for landlords to evict. Most of these complaints have a “second cause” included, which means the landlord is suing for money in addition to get possession of the home back. That means a tenant being evicted must respond with a written Answer. If they don’t, then they won’t even get notice about the hearing where the landlord gets to say how much the tenant owes.
But none of these courts have a form Answer to respond to the form Complaint.
Why do courts provide legal documents to the party that is far more likely to be represented by a lawyer? And nothing to defendants, forced into court without any help and facing such harsh consequences if they don’t respond with the form you don’t provide?
Georgetown Law Professor Sheryl Cashin, and her work, especially Localism, Self-interest, & the Tyranny of the Favored, introduced me to the problems of our local government systems and the fragmented metropolis. The article discusses the work of Richard Briffault and Kenneth Jackson’s Crabgrass Frontier.
I’ve been concerned about suburban sprawl since high school. I’m from a Western Pennsylvania farm town that was bulldozed into a Pittsburgh suburb as I grew up. I saw the destruction wrought by cars and traffic, in term of the lives of friends and favorite places. I read about the environmental damage and watched our country go to war for oil in 8th grade. I understood the policies that invested in this destructive development.
But it wasn’t until I moved to Washington, DC for law school and started learning from Professor Cashin that I understood the other side of the devastation coin – the communities left behind by sprawl. Continue reading Professor Cashin & Learning and Living in DC
In the United States of America, we have to look honestly at our history and our present reality. Part of our past history is slavery and the explicit state-sanctioned racial discrimination of Jim Crow. Part of the present American reality is that the descendants of the enslaved and oppressed have less wealth, less income, less opportunities and more likely live in neighborhoods that have less access to so many things that others take for granted. No honest look at history or statistics can deny this.
Continue reading Common Reparations