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Abstract: Agency theory is typically cabined to feminist legal scholarship, particularly the work of sex crimes scholars. In that space, agency theory provides a persuasive account of constrained decision making: given pervasive inequality, individuals can nevertheless carve out space for self-direction, self-definition, and resistance to dominant power structures. The observations of agency theory then inform criminal law reform projects, many of which seek to center decision making in defining criminal wrongs.
This Article extends agency theory into new terrain: the experiences of unhoused individuals. With homelessness at a record high in the United States, and unsheltered homelessness an increasing portion of that, more Americans than ever before are living in public spaces under extreme constraints. Yet many of the everyday acts of existing in public are criminalized by governments hoping to banish the unhoused from public view. Meanwhile, the existing legal literature on homelessness rarely engages with the necessary, daily, life-defining decisions of the unhoused, often focusing instead on the power of the government to combat homelessness.
Viewed through the lens of agency theory, many common experiences of unsheltered individuals take on new meaning. Resistance to shelter and services is sometimes rational and self-interested. Begging or panhandling can be effective techniques for obtaining food, money, or work. Self-medication through drug use and alcohol consumption is often a necessary survival strategy. And the construction of encampments stakes a normative claim to the legitimate uses of public property that pushes back against unjust distributive rules. These observations invite homeless advocates to reconsider and reframe the legal doctrines that influence agentic decision making. To that end, this Article offers a suite of law reforms and litigation strategies-covering property law, tort law, constitutional law, and criminal law-designed to surface and elevate the agency of unhoused individuals as a pushback against expansive (and expanding) criminalization.
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