Introduction 1082 I. Contextualizing New York City's Affordable Housing Crisis 1087 A. The Housing Crisis and Housing Court 1089 B. The Neoliberalization of New York City 1094 C. From Neoliberalization to Gentrification 1100 D. Market-Based Approaches to Affordable Housing 1104 II. The Right to Counsel and Critiques of Legal Rights. 1111 A. The Right to Counsel--History and Mechanics 1112 B. Distinguishing the Right to Counsel in Housing Court from Gideon 1116 C. Legal Rights Amid Structural Inequality 1118 III. Towards Housing Justice 1123 A. Countermovements and Transformative Rights 1125 B. From Right to Counsel to Redistribution 1128 C. Towards a Post-Neoliberal City 1133 Conclusion 1135 "I wish the rent was heaven sent." (1) INTRODUCTION
Amid an extreme affordable housing crisis in 2017, (2) the New York City Council passed the right to counsel, which guarantees an attorney to individuals facing eviction in Housing Court proceedings. (3) The right to counsel was fought for by a coalition of tenants and advocates determined to make Housing Court a fairer place and to increase the power of the tenant movement, which, at the time of this writing, stands poised to make major redistributive legal and policy gains for the first time since the 1970s. (4) It was also supported by the mayoral administration of Bill de Blasio, (5) whose market-based housing policies have contributed to the current crisis. (6) The divergence between the political and economic development visions of those who organized for the right to counsel and the de Blasio administration signals that the right to counsel is contested terrain. (7) The right can be interpreted in a manner that enhances tenants' organizing capacities, or it can be seen as a legitimization of housing policies that produce displacement.
This Article examines the capacity of the right to counsel to effectively intervene in the affordable housing crisis through the lens of political economy and a critique of legal rights. The theoretical thread that binds this Article together is based on the work of economic historian Karl Polanyi, which depicts an intrinsic tension between the market economy and society, with the dictates of the market cannibalizing societal institutions. (8) In Polanyi's formulation, the market economy's tendency to commodify areas of life that are more properly social (land, labor, money) than economic leads to social disintegration and catastrophe. (9) The application of the logic of the self-regulating market to matters of basic human sustenance results in the destruction of both society and the natural environment. (10) Eventually--and inevitably--society fights back against this process of marketization, as countermovements of impacted people mobilize for social protection against austerity, unemployment, and displacement. (11) These countermovements aim to subject the market economy to democratic and redistributivist interventions and can be strengthened by particular discourses of legal rights.
In terms of the political-economic frame of this Article, New York City's current housing crisis is viewed as connected to the city's neoliberal reorganization in the wake of the fiscal crisis of the mid-1970s. The resolution of the fiscal crisis circumscribed the legislative authority of the municipal government and diminished the city's famed social-democratic polity. (12) It also inaugurated a public policy common sense that is premised on an entrepreneurial conception of state power that favors market-based solutions to social problems (for example, the affordable housing crisis) (13) and that systematically converts social goods into private luxuries. (14) In the decades following the city's fiscal crisis, state-led initiatives and market forces have combined to render vast swaths of the city increasingly unaffordable. (15)
The neoliberalization and subsequent gentrification of New York City have been legally constituted and have unfolded along vectors of race, class, and geography. In the 1970s, the city lost home rule (16) over many areas of residents' everyday lives--including housing--thereby
limiting municipal officials' policymaking capacity. (17) As part of the settlement of the fiscal crisis, both the city and state governments enacted harsh austerity measures that targeted working-class, Black and Brown areas of the city, starving them of critical resources and effectively devalorizing them. (18) In the decades following the loss of home rule, the state legislature hollowed out rent stabilization, and the municipal government--under successive mayoral administrations--has relied on a raft of market-based approaches to create affordable housing. (19) These approaches, which include tax incentives and rezonings, have operated to marshal capital into many of the same areas devalorized during and after the fiscal crisis, placing upward pressure on land values and displacing longtime residents. (20)
In recent years, the gentrification of urban space has been a core feature of New York City's political-economic ecosystem, with real estate playing an increasingly prominent role as an engine of growth. (21) The centrality of real estate has gone hand in hand with the intensifying commodification of housing, and is premised on the prioritization of housing's economic value above its value as home. (22) While the market-based policy regime that has undergirded these processes has generated significant economic expansion, it has also dramatically reconfigured the city's urban geography, resulting in increased inequality and social dislocation, and altering the race and class composition of entire neighborhoods. (23)
This Article examines the promises and limitations of the right to counsel against this political-economic backdrop, applying several critiques of the function of legal rights amid widening social inequalities. It concludes that although legal rights within liberalism tend to leave intact--and may even reify--these inequalities, they can also, in certain cases, be deployed in a transformative manner. This occurs when legal rights are constructed to address concrete social harms; to call into question the material sources of those harms; and to help build new political formations capable of challenging the status quo. (24) Polanyi's theoretical framework offers a means by which to analyze the capacity of particular legal rights to contribute to social change, as the potency of legal rights can be evaluated according to the extent to which they support countermovements that challenge society's governing values and institutions, forcing a recalibration of the relationship between the market economy and society.
The right to counsel occupies a contested place in relation to this formulation of rights. It can be viewed as a narrow, procedural right that helps individual tenants at risk of eviction. More cynically, it can be seen as a legitimization of municipal development priorities that produce displacement. But the right to counsel's design facilitates a broader interpretation: its goal of producing positive substantive outcomes for tenants and its contention with private power gesture beyond individual Housing Court eviction proceedings, to the structural sources of the affordable housing crisis. In this sense, the right to counsel forms a component part of a broader right to stay put for tenants, as well as a bulwark against the ongoing deconstruction of housing as a social good.
In practice, tenants and their advocates have interpreted the right to counsel expansively, using it as a tool to support a vibrant, tenant-led countermovement for housing justice across New York City. This countermovement works against the grain of the legally-constituted commodification of housing that resulted from New York City's neoliberal turn, and fights for the ability of poor, working-class, and marginalized people to remain and thrive in the places they call home, irrespective of market forces. The right to counsel is a vital piece of this countermovement, which is deploying the right to build the organizing power of tenants and to fight for policy reforms that affirm housing's value as home over its value as real estate.
This Article examines the capacity of the right to counsel to support a tenant-based countermovement that targets the structural underpinnings of state-facilitated, market-based gentrification and displacement. Part I of this Article sketches the context for the right to counsel, beginning with a description of the dynamics of Housing Court and moving on to a discussion of the structural bases of New York City's escalating affordable housing crisis. It applies Polanyi's theoretical framework to New York City's neoliberal turn in the 1970s, and then looks at the gentrification of large sections of the city in the decades that followed. Part II discusses the history and mechanics of the right to counsel and examines the extent to which the right to counsel can intervene in the housing crisis. This discussion is grounded in an exploration of theories of legal rights and their capacity to contribute to transformative social change amid structural inequalities. Part III returns to Polanyi's theoretical framework, examining how the right to counsel supports an emergent countermovement for housing justice in the context of the city's current housing crisis. It discusses the manner in which this countermovement is interpreting and using the right to counsel in combination with organizing efforts for redistributive equality, democracy, and social justice in the housing sphere. Part III concludes with a look at how the countermovement for housing justice envisions a city centered on housing as a social good rather than an agglomeration of real estate assets.
CONTEXTUALIZING NEW YORK CITY'S AFFORDABLE HOUSING CRISIS
"To allow the market mechanism to be sole director of the fate of human beings and their natural environment...