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Emory Law Journal

Abstract

This Article addresses the role of local governments in the most American of activities: the lawsuit. During the last few decades, city litigation has grown more proactive, diverse, and prominent. Cities now frequently file lawsuits respecting the most notable issues of the day. Each of these suits involves specific policy concerns peculiar to its subject matter, but as a group—as a legal phenomenon—they all raise common, and disputed, doctrinal questions pertaining to standing, local preemption, res judicata, state immunity, and more.

When tackling these diverse doctrinal issues—sounding in both civil procedure and local government law—courts and scholars have failed to establish a coherent and principled approach. Such an approach is attainable, however, once one recognizes that at their core all the disparate doctrines applicable to city suits give voice to the same foundational questions: (1) what is the nature of the city’s right to sue?, and (2) what is that right’s scope? This Article answers these two questions.

First, this Article establishes the nature of the city’s right to sue as inherent. For both conceptual and normative reasons, the defining element of cityhood has always been the city’s status as a separate legal entity—its corporate personhood. Corporate personhood, in turn, is manifested through the right to sue and be sued. Cities’ right to sue, therefore, persisted throughout Anglo-American legal history. Contemporary criticisms notwithstanding, city suits are not some newfangled tools of social reform.

Second, this Article explains that because the right to sue expresses the city’s separate status, its scope is limited to suits that protect the city’s own separate interests as an entity—not simply the economic, political, or social interests of its residents. A city suit may serve, or even be motivated by, residents’ interests, but it must also further an independent city interest. A city suit solely reflecting residents’ interests undermines the social promise of the city as a distinct and collective body. Contemporary proponents’ enthusiastic embrace of the city suit often misses this limitation.

Drawing the connection between the city suit and cityhood, this Article thus answers both the doctrinal and academic challenges of the day. It provides ready solutions to civil procedure and local government law problems that have bogged down courts, while offering a normative theory of the city suit firmly grounded in values associated with the law of the city on the one hand and with access to justice principles on the other. In so doing, it erects potential defenses for the city suit against challenges that might come from a federal judiciary hostile to public-interest litigation.

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