Empirical Analysis

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. 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. Drawing on the empirical findings and scholarship about contracts of adhesion, the Article develops the theoretical concept of “settlements of adhesion.”

The Free Exercise Clause is a broadly worded constitutional prohibition against government intrusion on religious exercise. To construct limits, courts have consistently required government officials to demonstrate the necessity of state action burdening religion. Yet government officials regularly fail to produce evidence of necessity, leaving judges to intuit or assume whether necessity exists. In this Comment, Brady Earley offers a better way. Using a method known as difference-in-differences (DiD), lawmakers can draw upon the experience of existing state laws to enact laws justified with evidence. The Comment demonstrates the value of DiD with a current free exercise controversy involving the Old Order Amish and their objection to Ohio’s flashing light requirement for buggies. Applying DiD to this conflict reveals that Ohio’s buggy light law led to an estimated 23% reduction in buggy-related crashes compared to Michigan and Kentucky—states with less restrictive buggy requirements. Beyond this case study, the Comment also discusses how DiD can help address recent Supreme Court conflicts over tax exemptions for religious organizations, LGBTQ-themed books in schools, and religious charter schools. These examples grapple with the problems and the showcase the possibilities of a data-driven method to address necessity in free exercise.

Critics of the criminal enforcement system have condemned the expansion and privatization of electronic monitoring, criminal diversion, parole, and probation. But the astonishing perversion of contract involved in these new practices has gone unnoticed. Though incarceration-alternative (IA) contracting is sometimes framed as humane, historical and current context illuminates its coercive nature. IA contracting must be examined under classical contract theory and in light of the history of economic exploitation using criminal enforcement power harnessed to contract, including in the racial peonage system under Jim Crow. This Article documents this systematic underregulation through the first empirical study of legal regimes for IA contracts. To the extent that the theoretical limits of contract are not presently reflected in the common law of contract, regulatory reforms that better regulate seller and government practices might reduce the risk of exploitation.