Suing Cities

Abstract

Our biggest social problems tend to manifest themselves in small ways-on the streets where they affect people's daily lives. Local governments, who govern the streets and thereby are closest to the people, often find themselves on the front lines of combatting those problems. Accordingly, local governments are now promoting reforms to address climate change and homelessness, to reinvent education and transportation, and to remedy ingrained inequities.

Any government instituting change can and will face headwinds, which, in America perhaps inevitably, will at some point assume the form of lawsuits. But for various legal and functional reasons, city action is even more susceptible to litigation than federal or state action. Moreover, cities are particularly vulnerable to litigation instigated by the economically and politically powerful, who choose litigation when they fail to get their way from the political process. Consequently, suing cities has become a tool to stop local progress in its tracks.

This Article is the first to call attention to these trends. It shows how, with little scholarly analysis or legal pushback, American law has come to accord special standing rights to private plaintiffs suing local governments. It also demonstrates how this regime systemically exacerbates existing inequalities and unjustifiably interferes with local democratic governance. 

But all is not lost. This Article identifies potential changes to the law that could rebalance the relationship between private plaintiffs and local governments. These changes will channel anticity litigation toward more socially beneficial uses, while discouraging the kinds of litigation that are, almost by nature, obstacles to progress. Current law famously makes it hard to sue federal and state governments. Much less famously, it makes it easy to sue local governments. By recognizing the problems each of the extremes portends, we can hopefully move closer to a democratically sound regime for suing governments.

Keywords: local government, civil procedure, courts, civil litigation

JEL Classification: K10, K19, K30, K39, K40, K41, K49