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
Date Written: February 1, 2021
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: Suggested Citation