Settlements of Adhesion
Eviction cases make up over a quarter of all cases filed in the federal and state civil courts and have enormous consequences for tenants, who are nearly always unrepresented by counsel. These cases overwhelmingly settle, yet settlement scholars have entirely overlooked eviction both empirically and theoretically. One of the core questions animating settlement scholarship—how do the parties negotiate settlement?—has never been asked or answered in the eviction context. This Article does so.
The Article presents results from the first empirical study of eviction settlement negotiations. The study involved rigorous analysis of an original dataset of over one thousand hand-coded settlements, observations of settlement negotiations in the hallways of housing court, and dozens of interviews. The findings demonstrate that unrepresented tenants—who make up the vast majority of tenants in the eviction system—have no meaningful influence over settlement terms. Rather, the terms are set by landlords and their attorneys. The quantitative analysis shows that, despite variation in the merits of cases, settlement agreements involving the same landlord law firms nearly always reach the same settlement. Substantive terms vary across cases handled by different landlord law firms, however. The determining factor of a settlement’s terms is the law firm that represents the landlord. Through detailed data analysis, the Article demonstrates that each landlord law firm drafts and deploys a standardized settlement agreement, and that agreement is virtually always what unrepresented tenants sign.
Drawing on the empirical findings and scholarship about contracts of adhesion, the Article develops the theoretical concept of “settlements of adhesion.” The process by which eviction settlements are reached parallels that of a standard contract of adhesion. The settlements are drafted by a repeat player, written on preprinted forms, presented to the tenant with the implicit representation that there will be no deviation from the core terms contained, and signed by the tenant after discussion of the one term left open to negotiation (the payment schedule). The concept of settlements of adhesion reshapes long-standing debates about settlement. It shows that—at least in one civil context—not only do the merits not matter, but settlements bear little relationship to the substantive law because one side alone sets the terms. And while scholars have argued extensively about whether settlements are beneficial because they advance private interests or, alternatively, undesirable because they erode the public realm, settlements of adhesion show that there are contexts in which neither occurs. Settlements of adhesion pervert the public realm—they allow landlords to usurp public resources and the authority of the court entirely to their own advantage.
This Article makes four core contributions. First, it provides rigorous empirical data that reveals the process by which eviction settlements—one of the most common types of civil settlement—are reached in one jurisdiction. Second, the Article is the first to surface the phenomenon and develop the theoretical concept of settlements of adhesion. Third, by providing fresh empirical data about settlement negotiations in a previously unexplored context, the Article reshapes existing theoretical debates about settlement. Fourth, the Article proposes reforms for eviction courts grounded in the finding that settlement agreements are not negotiated.