A Seventh Amendment Remedy for Housing Instability

After the 2023–2024 Supreme Court term, housing advocates despaired over the expected, yet still unwelcome, decision in City of Grants Pass v. Johnson. While focusing on this case is understandable, this Article suggests that scholars, policymakers, and advocates should train their focus on another, perhaps less-expected case from the previous Supreme Court term: SEC v. Jarkesy. In Jarkesy, the Court affirmed a defendant’s constitutional right to a jury trial in an administrative proceeding that sought to enforce a right similar to one found at common law. The Court’s capacious interpretation of the Seventh Amendment in Jarkesy has implications for state-law matters, like eviction suits, that are more squarely rooted in the common law than the enforcement of federal securities regulations at issue in that case.

These implications translate to the broader effort to mitigate housing instability. This Article argues that Jarkesy invites advocates to respond creatively to the ongoing housing affordability and eviction crisis and sets forth a three-part strategy to expand tenants’ rights, reframe public perceptions of eviction trials, and increase democratic participation in the eviction process to serve as a check against the presumptions embedded in summary process.