The Yale Law Journal

June 2024

Suing Cities

State & Local Government Law

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 anti-city 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.

author. Professors of Law, Northwestern University Pritzker School of Law. We greatly benefitted from the input of Pamela Bookman, Meryl Chertoff, David Dana, Nestor M. Davidson, Daniel Farbman, Clay Gillette, Rachel Harmon, Darrell Miller, Kathleen Naccarato, Maria Ponomarenko, David N. Schleicher, Richard C. Schragger, Miriam Seifter, Mila Sohoni, and Jed Stiglitz, as well as from the comments of participants at the faculty workshop at Northwestern University Pritzker School of Law and at the State and Local Government Works in Progress Conference. Amanda Borwegen, Michelle Ike, and Matthew Johnson provided excellent research assistance, and finally, we are very grateful to the editors at the Yale Law Journal, and particularly Jordan Kei-Rahn, Brian Liu, and Dena Shata, who worked hard to improve this article.

It is notoriously difficult to sue American governments. Even when sovereign immunity does not shield a government,1 courts find ways to bar plaintiffs from contesting the government’s illegal acts. Through rules associated with “standing,” courts confine the right to bring suit to persons who have experienced an individualized harm caused by the government’s illegal act.2 Because most policy decisions affect the general public as a whole rather than target specific individuals, courts can use standing law to stop many suits against government actors from ever being litigated.3

Yet, as this Article will show, one specific set of governments can easily be hauled into court. For plaintiffs challenging the core work of local governments—including land-use regulation, education provision, and general local lawmaking—courthouse doors are wide open. In America, suing cities, and only cities, is easy.4

Three interrelated developments have generated this heretofore unacknowledged reality. First, while federal courts reject the claim that taxpaying alone generates a general right to sue federal and state governments for alleged misuse of tax funds,5 they have consistently acknowledged a special doctrine of municipal taxpayer standing.6 State courts similarly recognize this special rule, even if in some states it appears against the backdrop of an already more relaxed standing regime. As a result, local taxpayers can challenge almost any effort to spend municipal funds. The tool is so effective in disciplining cities that taxpayers can sometimes benefit from it without even actively resorting to it. For example, the mere possibility of a taxpayer suit discouraged Washington, D.C., from replacing the lead pipes providing water to its poorest residents.7

Second,over the past decades state courts have expanded property owners’ power to sue governments. An owner need not show that a government decision they seek to challenge in court actually applies to their property; the government decision might apply only to a nearby property, but as long as the value of the owner’s property might be affected, they can sue.8 Beginning with zoning laws and then extending to other doctrinal realms, courts have created a new category of standing—what can be dubbed “neighbor standing”—that turns alleged harms to property values into a near-automatic right to sue the government. While neighbor standing in theory affects all levels of government, in practice it mostly impacts local governments because those are the governments whose daily work regularly affects individuals’ property: they control public spaces, regulate land uses, and more. Thus, almost any imaginable local decision—to authorize affordable housing, to construct a bike lane, to accommodate the homeless—can, and has, become the subject of a lawsuit.9

Third, the culture wars are generating yet another opening for suits against municipal governments and officials. State legislatures hostile to municipal power—most commonly, conservative state legislatures hostile to progressive city power—are passing laws preempting local regulation of issues ranging from guns to immigration to education. The latest versions of these laws often empower any resident (sometimes, any person) to sue cities or their officials for defying the state’s orders, using what we call “preemption standing.”10 Under a Tennessee statute, for example, a resident may now sue a local government or official if they simply “believe” the government or official violated the state’s anti-sanctuary-city law.11

Separately, and even more forcefully because they work in tandem, these three developments have set city governments apart from all other government defendants. When in 2023 the federal government renamed Fort Lee and other Confederacy-honoring army bases, no one sued.12 When in 2020 Mississippi replaced its state flag that had incorporated the Confederate battle flag into its design, no one sued.13 But when cities attempt to remove Confederate monuments, they are sued under all three bases we identify.14

Courts occasionally note the peculiarities of the liberal regime for suing local governments. In the past two years alone, multiple state supreme courts confronted head-on the issue of special standing in suits against cities, struggling to explain existing doctrines and stumbling in attempts to reform them.15 Slightly earlier, in a testament to the perplexing nature of the issue, the highest court of Maryland felt obliged to affix a table of contents to its opinion on the matter, explaining that “[e]very novella-length appellate opinion warrants one.”16 The novella, though, proved too short: the following year the court reengaged the issue, without a table of contents but with almost sixty more pages.17 The ease of suing cities has bewildered federal judges too. Then-Judge Barrett referred to one standing doctrine allowing suing cities as a “relic,”18 and Judge Sutton elsewhere called it “curious.”19 Yet scholars of local government law and of procedure, who recently began drawing attention to related phenomena such as local courts,20 cities as plaintiffs,21 and “municipal immunity,”22 have failed to attend to the special regime governing suits against cities.23

This neglect is unfortunate because there are strong normative reasons to care about the ease of suing cities. Relenting on the individualized-injury requirement in anti-city suits involving taxpayer, neighbor, or preemption challenges systematically favors very specific types of litigants with very specific types of claims. It enables those with resources to head to court whenever they are unhappy with a decision the popularly elected local government adopts, even if that decision does not clearly injure them. Conversely, these doctrines do nothing to aid those unquestionably injured by government action, for whom establishing standing is consequently not the problem. For those plaintiffs, the hurdle is not standing but something else. For example, if they are to be compensated for the local government’s interference with their constitutional rights, they must prove the violation resulted from an official policy or custom.24 If they are to recover such compensation from individual local officials, they must overcome those officials’ “qualified immunity.”25 The result is that while victims of police misconduct still find it nearly impossible to sue local governments for violations of their constitutional rights,26 a U.S. Senator’s spouse,27 prominent law professors,28 and the NRA29 have all been able to pursue their general or political grievances through suits against cities. Indeed, were a city to decide to respond to police violence with a new police training program, the Senator’s spouse, the law professors, or the NRA could sue to stop the city from spending funds on the program.30

The values normally associated with suits against governments are simply not promoted by the special standing regimes for suing cities.31 In this Article we explain why. Unlike in the prototypical suits against federal or state governments, plaintiffs in these suits against cities are, because of the law’s design, likely to be well-resourced. Unlike in suits against federal or state governments, these plaintiffs sue cities not because they lack political options, but because they choose courts over the democratic process. And unlike in suits against federal or state governments, in these suits against cities the judicial process replaces a political process close to, and open to the influence of, the relevant community.32

As a result, while many view expanded opportunities to sue federal and state governments as, policy-wise, neutral or even progressive,33 the special allowance for suing cities firmly pushes against progress. Most often these suits against cities engender political inaction (as when they block gun control efforts or affordable housing projects).34 Sometimes they even mandate affirmative steps backwards (such as removal of the homeless or more aggressive policing).35 These regressive results are baked into the rules. The special standing rules apply when cities tax and spend, adjust land-use policies, or regulate rather than sit on their hands.36 They thus mostly target cities when they choose to act. Indeed, suits against cities need not even be successful on their merits to interfere with local initiatives. The mere threat of litigation works to deter cities from action; lengthy litigation may suffice to delay if not frustrate action, irrespective of a suit’s eventual resolution.

This dynamic might appear to have a specific political tilt. That is because in our current political environment, “progressive” city voters and officials are those normally agitating for spending, building, and regulating. But special standing rules could just as well frustrate the aspirations of politically conservative local governments seeking change. These rules are not inherently partisan.37 They simply, and blindly, act to fortify the status quo.

The lamentable function many suits against cities serve does not mean that litigation against local governments, even when instigated by those who did not suffer a personal injury, has no role to play. Special solicitude should be accorded to individuals attempting to sue government if they truly seek to remedy a real public injury. Operationalizing this principle does not mean equating the rules for suing cities with those governing suits against other governments. That approach would assume (wrongly) that we have optimized standing rules for suing federal and state governments,38 and it would flatten (wrongly) the differences between different levels of government.39

Cities should be more vulnerable to lawsuits than other governments when something meaningful about their distinct nature as local governments justifies such special treatment. In some—but not all—circumstances, that might be the case, due to cities’ historical and enduring corporate characteristics, the discrete nature of their lawmaking powers and processes, their status vis-à-vis the state legislature, or the enforcement difficulties that their sheer number can generate. Adherence to this principle will ensure that the practice of suing cities does not undermine democracy—by mechanically and mindlessly operating to suppress change—but rather supports it.

The balance of this Article proceeds as follows. Part I identifies and describes the three classes of special standing rules for suing cities: taxpayer, neighbor, and preemption. Taken together, these special rules create a powerful force against local action. Part II shows why that force is malign. We explain that while litigation economics and political economy might augur in favor of expanding the right to bring suits against federal and state actors, the opposite is true for suits against cities. We also explore the strong case for insulating local governance specifically from unnecessary judicial interference. Part III then applies these insights to develop reforms realigning the practice of suing cities with institutional reform litigation’s normative goals.

Current law allocates powers to sue cities in an oft ignored, and more importantly, unfair, manner. The problem is not with the plaintiffs in suits against cities, who are easily portrayed as selfish enemies of progress.40 They might well be that, but plaintiffs are merely using tools the law makes available. The law’s own rules, not the individual plaintiffs, represent a continual assault on city operations. It is time to reckon with the law—and its consequences.