New Federalism and Civil Rights Enforcement: A Progressive Platform for State and Local Governments

55 Pages Posted: 1 Feb 2021 Last revised: 22 Feb 2021

See all articles by Alex Reinert

Alex Reinert

Yeshiva University - Benjamin N. Cardozo School of Law

Joanna C. Schwartz

University of California, Los Angeles (UCLA) - School of Law

James E. Pfander

Northwestern University School of Law

Date Written: February 1, 2021

Abstract

Calls for change to the infrastructure of civil rights enforcement have grown more insistent in the past several years, attracting support from a wide range of advocates, scholars, and federal, state, and local officials. Much of the attention has focused on federal-level reforms, including proposals to overrule Supreme Court doctrines that stop many civil rights lawsuits in their tracks. But, as this Article shows, state and local officials share responsibility for the underenforcement of civil rights—and have underappreciated powers to improve the current state of affairs. This Article offers a blueprint for intervention at the state and local level: through state law causes of action for constitutional violations; changes to local budgeting and indemnification practices; and changes to the litigation strategies of government attorneys charged with defending civil rights litigation that take better account of the significant public interest in enforcing constitutional norms. Too often, we believe, state and local officials experience constitutional enforcement as an alien force, imposed on local governments by the heavy hand of the federal government. Rather than await federal reforms that may never come, the many state and local officials who have advocated for progressive change can draw on our reform agenda to translate their professed commitments into law and policy.

Keywords: civil rights litigation; Section 1983; qualified immunity; federalism; budgeting; ethics; policing

JEL Classification: K13, K41, K42, K100

Suggested Citation

Reinert, Alexander A. and Schwartz, Joanna C. and Pfander, James E., New Federalism and Civil Rights Enforcement: A Progressive Platform for State and Local Governments (February 1, 2021). Northwestern University Law Review, Forthcoming, UCLA School of Law, Public Law Research Paper No. 21-08, Northwestern Public Law Research Paper No. 21-02, Available at SSRN: https://ssrn.com/abstract=3776882

Alexander A. Reinert

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

Joanna C. Schwartz (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
(310) 206-4032 (Phone)

James E. Pfander

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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