States Empowering Plaintiff Cities

Across the country, cities are becoming major players in plaintiff’s-side litigation. With increasing frequency, cities, counties, and other municipalities are filing lawsuits to vindicate the public interest. Cities’ aggressive use of lawsuits, however, has been met with some skepticism from both scholars and states. At times, states have taken action—both legislative and via litigation—to preempt city-initiated suits.

This Article contends that states should welcome city-initiated public-interest lawsuits. Such litigation, this Article demonstrates, vindicates the principles of local control that cities exist to facilitate. What is more, a motivated plaintiff city can accomplish public-policy goals that are important not just to the city, but to the state as a whole.

Accordingly, this Article contends, states should do more than just tolerate city-initiated litigation: States should actively encourage it. Towards that end, this Article sketches out a path through which states can remove some of the legal barriers plaintiff cities frequently face. Specifically, states can provide cities the authority to enforce state laws (such as state consumer-protection laws). In addition, states can and should delegate to cities standing to sue as parens patriae—that is, on behalf of the people of the state. This Article is the first piece of scholarship to flesh out a theory under which states can delegate their parens patriae authority. And importantly—particularly in era of gerrymandered districts that dilute cities’ legislative power—this Article is also the first to argue that state delegation to cities can be effectuated not just through a state legislature, but by a motivated state attorney general.