Disaster Discordance: Local Court Implementation of State and Federal Eviction Prevention Policies During the COVID-19 Pandemic
Abstract
Eviction sits at the nexus of property rights and the basic human need for shelter—the former benefits from a strong framework of legal protection while the latter does not. In most eviction courts across the country, therefore, the right to housing is unrecognized, while landlords’ economic interests in property are consistently vindicated.
The public health crisis unleashed by COVID-19 temporarily upended that (im)balance. Emergency federal and state eviction prevention policies issued in response to COVID-19 prioritized public health—-and the need for shelter to prevent the spread of disease—-over typically dominant property rights. In doing so, they presented courts with an unusual dilemma: how to implement policy directives that run counter to existing legal, historical, and procedural frameworks.
While most studies of eviction during the COVID-19 pandemic have explored eviction trends over the period or the impact of these policies, this Article delves more deeply into the question of local implementation-—which varied widely across jurisdictions—-and asks when and why such policies may not have their full intended impact. Relying on a series of interviews conducted with judges, clerks, and lawyers working in eviction courts, the Article suggests that the phenomenon of discordance can help explain how and when policy implementation is most likely to be effective. Where accordance—-functional and norm-based alignment -—existed between judges’ understanding of the eviction process and COVID-19 policy directives, they were more likely to be proactive and focused on implementation. However, where judges experienced discordance-—misalignment between the aims of these directives and those of the underlying legal structure and process—-they were more likely to cast themselves as passive and highly restricted in their ability to act outside of the normal order of operations.
Although set against the backdrop of the COVID-19 pandemic, the findings and conclusions set forth in this Article are not unique to that context. The insights presented here regarding the implementation of state and federal policy at the local court level provide critical guidance to policymakers in all areas about the need to consider local dynamics in crafting policy-—particularly in times of crisis-—and how to structure policies so that local motivations can be used to spur innovation rather than obstruction.