San Francisco City Attorney Kathleen Morris calls for overturning a century of precedent in local government law.

On Tuesday September 27th, 2011, the author was joined by Professor David Barron and Professor Gerald Frug of Harvard Law School and Professor Richard Ford of Stanford Law School to discuss whether local governments are powerless instrumentalities of states or whether they should be allowed to pursue constitutional claims on behalf of their constituents.

You can read Morris’s article below, as well as responses from academics and practitioners. The live blog of the panel discussion is available here. Media from the discussion will be available soon. The opinions expressed by Kathleen Morris in the article or on the panel are hers alone and should not be ascribed to the San Francisco City Attorney’s Office or any other person or entity.



Kathleen S. Morris

47 Harv. C.R.-C.L. L. Rev. __ (forthcoming 2012).

ABSTRACT. This Article calls for the overruling of Hunter v. Pittsburgh (1907) on Erie grounds. Hunter announced as a matter of federal law that local governments are powerless instrumentalities of state governments. Legal scholars have criticized Hunter for exacerbating the doctrinal and practical problems that plague local government law. This Article goes further by challenging Hunter directly. It argues first that Erie v. Tompkins (1938), properly read, effectively overruled Hunter. Second, it argues that we should not mourn the loss of Hunter because its analytic support structures are historically, doctrinally, and logically defective. The Article then narrows its focus to a doctrine derived from Hunter, the federal rule barring localities from invoking the Constitution against their own states (the “Hunter doctrine”). It argues that after Erie, the Hunter doctrine is best understood as a doctrine addressing capacity to sue; that federal courts should defer to state law in deciding whether a particular locality has the capacity to bring a constitutional challenge against its own state rather than superimposing a national rule; and that courts and scholars should welcome localities into constitutional debates because their full participation is pro-local, pro-democratic, and would raise the overall competence of constitutional debate and local public advocacy. Finally, looking to the future, the Article calls for scholars to address which of the Constitution’s provisions should apply to localities qua localities; to consider the circumstances under which the Court should permit localities to pursue representative constitutional claims on behalf of their constituents; and to develop an alternative, post-Hunter theoretical framework for local government law.

The full text of The Case for Local Constitutional Enforcement by Kathleen S. Morris is available here.


Kathleen S. Morris

Bio photo of Kathleen S. MorrisKathleen S. Morris is a Deputy City Attorney for the City and County of San Francisco. The opinions in this Article are hers alone and should not be ascribed to the San Francisco City Attorney’s Office or any other person or entity. Ms. Morris was a Visiting Lecturer at Yale Law School in Spring 2008; and a Visiting Assistant Professor at Rutgers-Camden Law School in 2009-2010. For helpful comments on earlier drafts, I thank Michelle Wilde Anderson, John Beckerman, Joseph Blocher, Richard Briffault, Bernard A. Burk, Stacy Chen, Heather Elliott, Christopher S. Elmendorf, Heather Gerken, Michael Libonati, Richard C. Schragger, Darien Shanske, Reva Siegel, and Robert F. Williams. For able research assistance and editorial support, I thank Caitlin Bedsworth, Josh Bendor, Daniel Pastor, Renata Stepanov, and the student editors of the Harvard Civil Rights—Civil Liberties Law Review. For helpful comments and conversations, I thank Deputy City Attorneys Buck Delventhal, Owen Clements, and Christine Van Aken; and Yale Law graduates Kaitlin Ainsworth, Adam Grogg, Jill Habig and Giulia Good Stefani. I dedicate this Article to my wife Shawn Marie Fong, whose support allowed me to write it.


Darien Shanske

Bio photo of Darien ShanskeProfessor Darien Shanske is an Associate Professor of Law at the University of California, Hastings College of the Law, at which he teaches courses in local & state government. He holds a J.D. from Stanford, a Ph.D. from U.C. Berkeley in Rhetoric, an M.A. from McGill University in Philosophy and a B.A. from Columbia University. Before law school, he worked as a financial consultant to California local governments, and, after graduating from law school, he worked as an attorney in the public finance department of Sidley Austin in San Francisco. Professor Shanske then clerked for Judge Pierre N. Leval of the United States Court of Appeals for the Second Circuit.

Kathleen Morris’s “The Case for Local Constitutional Enforcement” identifies a subtle and important phenomenon, namely the inability of localities to protect the federal constitutional (and perhaps statutory) rights of their citizens when the violator is the state. Morris then argues persuasively that this phenomenon is troubling, primarily because localities are loci of democratic participation. Morris also intriguingly suggests that enabling localities legally can help trigger more profound democratic involvement at the local level.

Another exciting aspect of Morris’s piece is the promise of the future pieces that it outlines. I am particularly looking forward to Morris’s taxonomy of local government entities.1 With the future in mind, I offer the following considerations as to the current piece.

1. Go Easy on Hunter, especially from the perspective of Erie – Morris argues that Hunter v. Pittsburgh2 was overturned by Erie v. Tompkins.3 This claim, while original and provocative, should be refined for several reasons. First, as Morris intimates,4 the broad language about municipal corporations as creatures of the state was dicta when spoken, and not essential to the resolution of that case. Even Supreme Court dicta are not binding as holding.5 Second, again as Morris is clearly aware, the Supreme Court has already treated Hunter’s sweeping dicta as such, sweeping it aside in important case after important case – starting with Gomillion.6 Third, the actual holding of Hunter – and the holdings of most other key local government cases7 – is not obviously impacted by Erie. Hunter, read for its holding, interprets the Contract Clause and the Due Process Clause of the federal Constitution. Most other leading cases, such as Gomillion, also interpret a provision of the federal Constitution, while others interpret federal statutes, such as 42 U.S.C. § 1983.8

This is not to say that I think the Erie argument should be abandoned. Morris indicates that there are cases where federal courts appeal to the dicta of Hunter (and related cases) with no textual warrant, especially in connection with the legal capacity of local governments. These are the cases that I think Morris should concentrate on in connection with her formal Erie argument.9 Morris also believes that Hunter has had a gravitational pull on the thinking of state courts interpreting state law10; this is an intriguing possibility, but one that needs to be teased out carefully given the many other reasons state courts might interpret local power narrowly, including the specter of Dillon’s Rule and including sound reasons to foreclose local governments litigating what Morris calls “City Cases.”

2. Abandon “City Cases” – Whether or not Hunter has been overturned as to its specific holding, Morris thinks that it should be. I am wary of this. The holding of Hunter, put roughly (and broadly),11 is that when states change local boundaries then local residents do not have a claim against their states under the federal Constitution. Morris would give the cities themselves, and presumably their residents, the ability to challenge the actions of a state vis a vis a locality under the federal Constitution, including under the Due Process Clause (at issue in Hunter) and the Takings Clause (at issue in Trenton).12

I will start with the normative argument for maintaining Hunter. Hunter itself was about an urban annexation. As famously demonstrated by Kenneth Jackson, annexation was the dominant way for American cities to grow throughout the nineteenth and early twentieth Centuries.13 If that process had been allowed to continue (by state law), then our major cities would be much larger, essentially encompassing what we now think of as metropolitan areas. If one considers it a shame that our current metropolitan landscapes are so balkanized and one would like state law to once again enable annexation by larger cities (or other entities, like school districts or counties), then overturning Hunter would give every smaller locality a constitutional defense. Indeed, any local boundary adjustment could trigger constitutional litigation, whatever the reason for the adjustment, be it to enhance participation, equality or economic competitiveness.14 Put another way, overturning Hunter would place a bias in favor of the current status quo into federal constitutional law.

In one passage Morris suggests that a way to mitigate such concerns would be to protect local governments to the extent their acts are “discretionary” versus “mandatory.”15 This is an idea worth considering further, but this distinction, though venerable, is not a felicitous one, and courts have struggled to make it work in other contexts.16 Indeed, this conceptual confusion was part of the reason that the Court abandoned this distinction in the Hunter context to begin with.17

And this potential doctrinal abyss indicates why the current doctrine is best left alone. Let us return to the unhappy citizens of Allegheny. These citizens observed that they had paid taxes for certain local amenities they now already had – and that, forcibly annexed to the larger and poorer city of Pittsburgh, they would have to pay for these amenities again (including arguably discretionary amenities). One can understand the anger of the citizens of Allegheny and it is appealing to have their city defend these interests. But even from the perspective of Allegheny and its citizens, the annexation was essentially just redistributive taxation at the local level. The holding of Hunter is that such taxation is allowed insofar as the specific clauses at issue were concerned (in particular the Due Process Clause).18 Would we want the courts to apply stricter scrutiny to redistributive taxing schemes? And there may not even be redistribution afoot. At least one underlying rationale for these metropolitan annexations, still compelling to many, was that these smaller communities were essentially part of the larger city and were benefiting from this city, but were also trying to insulate themselves from paying their fair share for the city’s upkeep. From this perspective, the state, by allowing the annexation, was not opting for progressive redistribution, but acting to stop regressive redistribution. In short, attributing property rights based on local boundaries would lead to doctrinal confusion because the underlying conceptual landscape is confused.

3. Emphasize “Constituent Cases” – I think that Morris is most convincing, indeed inspiring, in arguing for the local government role in looking after the rights of their constituents. The lead cases that Morris cites as implicit critiques of the Hunter doctrine feature local governments doing just this.19 I think Morris could explore this issue further. The normative argument against Morris’s position runs, roughly, that a locality that wins in constitutional litigation is imposing its vision of the Constitution on other localities, thereby undermining the diversity that justifies localism to begin with. Yet, prima facie, this argument seems in tension with what a right is – if San Francisco is victorious in its constitutional interpretation then it is securing rights that all Californians (perhaps all Americans) already have. This is not the same (by my lights) as San Francisco imposing its views of orderly development on neighboring cities. To be sure, one might challenge my (Dworkin-inspired) thumbnail interpretation of what a “right” is, but I think that Morris concedes too much when she grants that a victorious locality would be impinging on the autonomy of other localities.

To conclude, I think Morris’s focus on Erie and her entertaining of City Cases may obscure her deepest point: Hunter’s sweeping dicta has cast a pallor over the ability of localities to vindicate the federal constitutional rights of their citizens against their states, at a cost to the rights of their citizens and democratic constitutionalism.

1 I note that all of Morris’s arguments appear stronger to this observer insofar as the localities in question are cities, especially older, larger cities. Special districts, Lakewood plan cities, even school districts – all of these entities do not seem to be equally attractive defenders of constitutional values. That said, some role for these entities seems plausible and I eagerly await Morris’s next pieces as she develops how this could work.

2 Hunter v. City of Pittsburgh, 207 U.S. 161 (1907).

3 304 U.S. 64 (1938).

4 Morris p. 16.

5 Pierre N. Leval, Judging Under the Constitution: Dicta about Dicta, 81 N.Y.U. L. REV. 1249, 1275 (2006) (“I am not counseling disrespect for a higher court, least of all the Supreme Court. I am saying only that a lower court has a constitutional responsibility to decide the case in accordance with law. Dictum is not law. The court must decide a previously undecided question.”).

6 Gomillion v. Lightfoot, 364 U.S. 339, 342-43 (1960) (explicitly limiting Hunter).

7 See, for example, the cases cited in Morris footnote 6.

8 Monell v. Dep’t of Social Services of City of New York, 436 U.S. 658 (1978).

9 Morris argues persuasively in her footnotes and in person that Ysursa v. Pocatello Education Ass’n et al., 129 S. Ct. 1093, 1100 (2009) is such a case.

10 See Morris notes 139-41 and accompanying text.

11 Reading Hunter with other related cases and, in particular, City of Trenton v. New Jersey, 262 U.S. 182 (1923).

12 See Morris notes 24-27 and 201-03 and accompanying text.

13 Kenneth Jackson, Crabgrass Frontier 138-156 (1985).

14 That is, almost no matter what one’s normative priors, the constitutionalization of the current system would frustrate reforms.

15 See Morris p. 36.

16 See, e.g., 18 Mcquillin Mun. Corp. § 53.04.10 (3rd ed.) (detailing state court struggles with the distinction).

17 City of Trenton v. New Jersey, 262 U.S. 182, 191-92 (1923) (specifically eschewing the governmental-proprietary distinction).

18 The classifications used would still need to satisfy, for instance, the Equal Protection Clause.

19 See, e.g., Washington et al. v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982).

Michael E. Libonati

Bio photo of Michael E. LibonatiMichael E.Libonati is Laura Carnell University Professor and Professor of Law at Temple University. He is the coauthor of Local Government Law – a 4 volume treatise. He also wrote Local Government Autonomy a publication of the U.S. Advisory Commission on Intergovernmental Relations.

Ms. Morris is right to think that the field of public law with which her article is concerned needs rethinking.

As a retired treatise writer, I am afraid that I am unable to break out of the classificatory habits that informed the bulk of my writings. From an analytic point of view, five issues are salient: capacity to sue; standing; justiciability; defenses based on state sovereignty, e.g. sovereign immunity; merits of the claim.

A. Capacity to sue

On this issue federal courts have no business creating federal doctrine barring local government units from pressing Federal statutory and constitutional claims. This question seems to me to be a state law issue within the ambit of Erie. It is a severable issue whether state courts have botched the issue. Even from a Dillon’s rule analysis, the power to sue and be sued is an essential component of juridical personality regardless of whether the state is the object of the litigation.

B. Standing to sue.

Here again I would argue that federal courts should defer to state law on this issue. However I am aware of USSCT caselaw that generally denies standing to state taxpayers pressing federal claims even when a state court is willing to entertain such claims. I do not have the will or the expertise to explore the attenuated subtleties of Federal caselaw on this issue but it should be addressed.

C. Justiciability

Once more the shape and thrust of federal case law are beyond my competence. But it is my recollection that federalism concerns are part of the legal landscape concerning this doctrine.

D. Sovereignty and related concerns.

Hunter is a case involving a challenge to a jury-rigged statute that essentially forced the City of Allegheny to merge with the city of Pittsburgh. There is a persistent body of USSCT caselaw from Coyle v. Smith to the cases surveyed by Mosk, J. in the Sacramento LAFCO case,838 P.2d 1198, that tells me that whether the plaintiff in that case was Mrs. Hunter or the City Of Allegheny, the claim would have been rejected. Coyle v. Smith is, of course, not squarely decided under the 10th Amendment,although it is cited in subsequent 10th Amendment cases. But Cameron County Water District is-no access to protections of Federal municipal bankruptcy law without express consent of state statutory law.

There are also 11th Am issues involving caselaw denying state employees a federal forum in which to press their claims against their state employer.

E. Merits

As previously observed under D, established Federal doctrine does not protect local government units from boundary change decisions mandated by the state legislature. Only bondholders (Port of Mobile v. Watson) and victims of racial gerrymander (Gomillion) are constitutionally protected. I am not so sure that body of case law is unsound – although a doctrinaire marxist would not be surprised by the privileged status of bondholders under the Contracts clause. I am more troubled by the failure of federal law to recognize that local government units have property rights against state uncompensated takings or can make contracts with the state that bind the state.

All holders of the right to divert river water were compensated by
the state of New Jersey- except Newark and Trenton- even though those cities had purchased diversion rights from private sector entities Hendrik Hartog and others have documented that municipal corporations in some states were recognized as possessing property interests held in the entity’s proprietary capacity. State cases recognizing the proprietary capacity distiction would seem to fit within Erie. I could, as an aging bore, go on citing cases, but the point is that the case for applying Federal constitutional norms to state-local relations calls for a clause by clause selective incorporation approach.

F. Concluding remarks.

It is my view that the heart of the conceptual problem lies exactly where Hartog and Horwitz and others, have indicated – the strong dichotomy between public and private. Adherence to that dichotomy led to the differentiation between municipal corporartions and private corporations. The former even though juridical persons were not. through the prism of sovereignty crafted by lawyers and judges seen as constitutional right bearers, whereas the latter possess a nearly full measure of the protections afforded “persons”. The result has been a reign of state legislative hegemony over the activities and affairs of local government whose negative consequences in Pennsylvania, for example, are shared by municipalties of every size. (For thorough documentation ,see the website of 10,000 Friends of Pennsylvania.)

Joseph Blocher and Ilan Graff

Bio photo of Joseph Blocher and Ilan GraffJoseph Blocher is an Assistant Professor of Law at Duke University. He received his B.A., magna cum laude and Phi Beta Kappa, from Rice University, and studied law and economic development as a Fulbright Scholar in Ghana and as a Gates Scholar at Cambridge University, where he received an M.Phil. in Land Economy. He received his J.D. from Yale Law School, where he served as comments editor of the Yale Law Journal. Blocher clerked for Guido Calabresi of the U.S. Court of Appeals for the Second Circuit and Rosemary Barkett of the U.S. Court of Appeals for the Eleventh Circuit. He also practiced in the appellate group of O’Melveny & Myers, where he assisted the merits briefing for the District of Columbia in District of Columbia v. Heller.

Ilan Graff is a Dean’s Fellow at Duke University. He received his A.B., cum laude, from Harvard College and served as Head Writer for the D.C.-based advocacy group NDN. He received his J.D., cum laude, from Harvard Law School, where he served as Book Review & Essays Chair of the Harvard Law Review. Graff clerked for Chief Judge Sandra Lynch of the U.S. Court of Appeals for the First Circuit and Judge Allyson Duncan of the U.S. Court of Appeals for the Fourth Circuit.


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Constitutionalizing Local Politics

Kathleen Morris has written a bold and exciting article on an issue that deserves more attention than it has received: local governments’ role in constitutional enforcement. Rather than engage the merits of the article’s central doctrinal argument—that Erie Railroad v. Tompkins effectively overruled Hunter v. Pittsburgh—this short response makes a brief foray into what Morris calls the “normative debate over local constitutional enforcement.” Specifically, it offers a few thoughts on how increased local involvement in constitutional enforcement might change the political and constitutional landscape.

Such a changed role would, by definition, raise new challenges as well as new opportunities for local government, and the former may be more significant than Morris’s article suggests. For example, she argues that perhaps localities are “uniquely competent, rather than uniquely incompetent, to interpret the Constitution,”1 because they are in effect the places where the constitutional rubber meets the real-life road. But local governments’ responsibility for applying laws that might raise constitutional problems—Morris points to the announcement of time, place, and manner restrictions on speech and the creation of strip-search policies2—simply highlights the stakes of constitutional issues at the local level, not necessarily the desirability of local government officials’ role in resolving them.

This potential shortcoming is only reinforced by the fact that—holding aside extraordinary counter-examples such as San Francisco’s role in the same-sex marriage debate—voters generally seem to elect municipal leaders precisely because they have expertise in issues like . . . well, like real-life roads (not to mention schools, law enforcement, zoning, and the like). Since few city council members, selectmen, or aldermen are elected on the basis of any particular constitutional vision, it is unclear how “welcoming localities into constitutional cases as plaintiffs would democratize constitutional litigation.”3 Moreover, the most important actors in a post-Hunter world of local government constitutional enforcement would presumably be city attorneys and corporation counsel—roughly the municipal equivalent of state attorneys general—only some of whom are directly accountable to voters. How, then, are any of these officials well-positioned to democratize constitutional litigation?

Of course, all of that could change. Local government officials undoubtedly could articulate constitutional visions, and one implication of Morris’s argument is that overruling Hunter would incentivize them to do just that. Perhaps if local government were allowed to engage in constitutional enforcement, more local government officials would be subject to election. And more city attorneys might start taking public positions on substantive constitutional issues like prayer in local schools or free speech in municipal parks.

But there are reasons to doubt that the constitutionalization of local politics would be a good thing. It could lead to significant mission creep, distracting local government officials from traditional and vital functions like the nitty-gritty operations of schools and parks themselves. Moreover, it’s not entirely clear that a politically savvy city attorney would always argue in favor of the interests of the city qua city. There are undoubtedly many situations in which an ambitious attorney’s political career could be advanced by arguing a politically popular constitutional claim that would limit city power and autonomy—against municipal authority to regulate guns, for example, or for prayer in local schools.

Perhaps the political process would prevent that, too. Maybe voters simply wouldn’t support candidates who prioritize constitutional claims over roadwork, or who sacrifice the city’s interests for some other legal or political goal. But the story would be complicated at the very least. Overruling Hunter could radically alter the role of the city attorney, and that transformation’s implications for the internal structure of the city are unclear. Presumably a higher proportion of city attorneys would be chosen by election than by appointment, in order to give voice to the people’s constitutional vision; many city attorneys would use their positions as stepping stones to higher office, as state attorneys general occasionally do now; and conflicts might well arise between bold city attorneys, mayors, and city councils, as occasionally happens between attorneys general and Governors.4 The internal structure of local government, in other words, would need to shift to accommodate this new weight.

Over time, increased local constitutional enforcement could also prompt an unexpected shift in cities’ civic character. A municipality’s vigorous litigation in support of, say, school prayer, could act as a signaling device—a local constitutional flag—to prospective residents. Even as the city’s advocacy of its constitutional vision attracted likeminded citizens, it could drive out those more comfortable with the status quo. Rather than enriching public discourse, increased local engagement with polarizing constitutional issues might contribute to urban spaces’ homogenization and the accompanying erosion of cities’ capacity to nurture diverse communities.5

To be clear, these are musings on the implications of Morris’s article, not an effort to evaluate its powerful and provocative central argument. As local governments shoulder tremendous burdens with diminished resources, serious reflection is needed on their place in our constitutional landscape. That the article facilitates such engagement is, hopefully, evidence of the influence it will have on discussions about the proper role of local government in political and constitutional life.

1 Kathleen S. Morris, The Case for Local Constitutional Enforcement, at 47 (Draft, Aug. 2011) (forthcoming in 47 Harv. C.R.-C.L. L. Rev.).

2 Id.

3 Id. at 44

4 See William P. Marshall, Break Up the Presidency? Governors, State Attorneys General & Lessons from the Divided Executive, 115 Yale L.J. 2446, 2453-55 (2006).

5  See Gerald Frug, City Making: Building Communities without Building Walls 138-42 (1999).


Kaitlin Ainsworth Caruso

Kaitlin Ainsworth Caruso is currently a federal judicial law clerk. She has served as the San Francisco Affirmative Litigation Project Fellow and Lecturer in Law at Yale Law School, and worked for the Corporation Counsel for the City of New York. She is a graduate of Yale Law School and Northwestern University, currently residing in Chicago. All of the opinions expressed in her response are hers alone and are not attributable to any member of the federal judiciary.

The Municipal Corporation, Revisited: Rationalizing the Law of Cities after Hunter v. Pittsburgh

I concur in Kathleen Morris’ takedown of Hunter vs. Pittsburgh – as someone who worked with her for several years, this is perhaps unsurprising. I offer, however, an alternate suggestion for where the law should turn in its aftermath. At the end of her article, Ms. Morris implores scholars to explore which constitutional provisions and protections should apply to localities qua localities.1 Although I have long espoused cities actively litigating on behalf of residents, I have reached a different conclusion. In affirmative litigation, we should stop treating localities as localities at all. I do not dispute that scholars need to rationalize and expand federalism to account for local entities.2 In the courtroom, however, I fear that Morris’ invitation could bring a return to the same evil she attacks in Hunter – namely, a federal common law of what cities can and cannot do.

In Morris’ terms, my reasoning stems from the tension between autonomy and power.3 That is, by easing up on the struggle for the appearance of autonomy, cities may stand to gain considerable power to effect change in the lives of their residents. Pro-local scholars and lawyers have worked hard to reclaim the mantle of (limited) sovereignty for cities, stressing their deep roots and democratic vitality. But that struggle to make cities look more like states and less like corporations may undermine cities’ power and standing in federal court. Sovereignty is hard to administer; even longstanding federalism doctrine has failed to produce a coherent theory of sovereign standing for states.4

Rather than awaiting – and then litigating –a revitalized federalism that recognizes cities, I suggest that local governments re-embrace their corporate identities. This will feel all wrong to the many who have fought hard for recognition of cities’ legitimate governance interests. But that hard work, Morris concedes, has not even made cities equal to ordinary corporations.5 If that pattern holds, cities have little to gain by pursuing a doctrine of standing for localities qua localities. In contrast, corporations are enjoying a boom in constitutional rights.6 As lawyers for municipal corporations, city attorneys have the opportunity to improve their legal lot by pushing federal courts to do the easy thing – replace the vagaries of the Hunter doctrine with familiar corporate law. Treating local governments as corporations would have the salutary effect of eliminating many of the public/private irregularities that persist in the federal law of cities. It would allow cities to honestly describe their interests in litigation – whether on behalf of their residents or their proprietary interests.

Even though there are relatively few city powers that have not been conferred on private corporations at some point, I do not suggest that cities always be treated as ordinary corporations. Rather, I suggest that for affirmative litigation, treating cities like other corporations would help rationalize the gap left by Hunter and its shifting identities. Where the Hunter doctrine looks like a prudential standing concern, for example, courts can fall back on the federal doctrine of associational standing. Where Hunter acted like a capacity doctrine and created a federal common law defining cities, courts can fill in the law with the Erie- appropriate state law of ultra vires actions. Most importantly, the substitution of corporate law for Hunter would eliminate the barrier to both direct and representational constitutional claims that Morris identifies as Hunter’s primary ill effect.

Municipal corporate standing would be premised on either of two categories of standing. The first is Article III standing: in proprietary (or “city”) cases which implicate the city’s own assets, it can articulate ordinary harms under Art. III – unencumbered by city-specific doctrines like constitutional incapacity or the Fireman’s rule.7 The second, and more controversial, is associational standing: when local governments articulate a legitimate representational interest, they could litigate like any other non-profit.8 Thus, cities will no longer have to show tortured proprietary harm to serve their legitimate representational interests.9

To articulate a claim for associational standing, a local government would have to prove:

(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.10

A brief discussion of the details will suffice here. If the city has a legitimate interest, the first prong is easy. Although geographical “membership” is unusual, it offers more accountability than some courts have required from non-profits,11 and comports well with Tieboutian theories if local government. Germaneness to an organization’s purpose poses an awkward question for multi-purpose corporations like cities. In most cases, however, cities can adequately answer by pointing to state constitutions, laws, and un-preempted local ordinances (an Erie inquiry at heart). For a skeptical judge, cities might show germaneness by showing that conduct harms the city’s own daily operations as well as its residents, or that the city council has approved the suit under its enumerated powers.12 Finally, showing that individual resident participation is unnecessary presents dual hurdles – first, cities will likely have more internal dissenters than more homogenous groups, like Greenpeace.13 Critics have already suggested frameworks for addressing conflicts of interest in associational cases, however.14 Second, many courts have construed this prong to limit suits to injunctive relief; the elimination of damages may be a strong disincentive for many cash-strapped cities to litigate. Although there are a variety of ways to address these concerns, it suffices to say for now that this is only an issue of prudential standing.15 Cities may be able to overcome these stumbling blocks by showing the court that they can bring the special expertise and resources that the Supreme Court has said are the point of associational standing.16

At first blush, the corporate law approach arguably duplicates one of the three Hunter fallacies Morris identifies- that local governments owe their existence and powers to the legislatures, rather than the state’s constitutional sovereign. Depending on the particular state constitution, the point is well taken. I would argue, however, that the image of a corporation – formed by people, sanctioned by the state, and answering to both state and stakeholders – well describes the tensions between supervision and independence identified by Professor Heather Gerken in sub-state governance.17 Cities may not be so powerless as Hunter implied, but neither are they always as imposing as Morris implies. Like many corporations, a city functions within two frameworks – the first imposed by the state constitution, the second imposed by its members, through the process established by the state.

I do not intend to join the throng of critics who have bemoaned Hunter rather than coming to grips with its flaws. I simply wish to offer a way to rationalize areas of federal law that need to be shored up in Hunter’s wake. Issues of corporate standing, capacity, and expertise are intimately familiar for federal courts; cities can and should avail themselves of these doctrines to identify, and repair, the variety of issues that Hunter has so inartfully obscured. Cities can meet, head-on, whatever truly troubles the litigation they seek to bring. Cities can guide courts down these well-worn paths and finally lay the convolutions of the federal law of cities to rest.

1 Morris, at 10.

2 See Heather K. Gerken, Foreword: Federalism All the Way Down, 124 Harv. L. Rev. 4, 13 (2010).

3 Morris, at 43.

4Compare Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 520 (2007) (Justice Stevens’ majority averred that states were entitled to unspecified “special solicitude” in the standing analysis) with id. at 538 (Roberts, C.J, dissenting) (arguing that parens patriae standing raises, not lowers, a litigant’s burden of proof as to standing).

5 Morris at 39.

6See Pamela S. Karlin, Me, Inc. Boston Review, August 2011, available at

7 The “fireman’s rule” prevents a municipality from recovering for service costs (like fire services) from those who increase them (like arsonists). See, e.g., City of Flagstaff v. Atchison, Topeka & Santa Fe Railway Co., 719 F.2d 322 (9th Cir. 1983) (then-Judge Kennedy, applying Arizona law to deny recovery). See generally Note: Recovering the Costs of Public Nuisance Abatement: The Public and Private City Sue the Gun Industry, 113 Harv. L. Rev. 1521, 1525-26 (2000).

8See Milwaukee v. Saxbe, 546 F.2d 693, 698 (7th Cir. 1976) (“In any case where a municipal corporation seeks to vindicate the rights of its residents, there is no reason why the general rule on organizational standing should not be followed.”)

9 For example, Baltimore’s long-suffering predatory lending case against Wells Fargo eventually fell back on proprietary harms. See Robbie Whelan, City changes tactics on Wells Fargo lawsuit, Baltimore Sun, April 21, 2010, available at

10 Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977).

11Cf. Charles H. Steen & Michael B. Hopkins, Corporate Governance Meets the Constitution: A Case Study of Nonprofit Membership Corporations and Their Associational Standing under Article III, 17 Rev. Litig. 209, 220-21 (1998) (nonprofits should have member-controlled boards to obtain associational standing.)

12 Indeed, applying associational standing to cities tests why courts have treated litigation by democratically accountable cities as more troubling than that of nonprofits which lack any voting members at all. . Cf. Morris, at 44; Kristen L. Melton, Friends of the Earth, Inc. v. Chevron Chemical Co.: The United States Court of Appeals for the Fifth Circuit Extends Associational Standing to a Nonmembership, Nonprofit Corporation, 72 Tul. L. Rev. 1875, 1884 (1998).

13 This concern, of course, may be overblown where a city attorney is democratically accountable and savvy.

14Cf. See Nathaniel B. Edmond, Comment, Associational Standing for Organizations with Internal Conflicts of Interest, 69 U. Chi. L. Rev. 351, 377 n.22 (2002).

15See id. at 363.

16 See Int’l Union, United Auto., Aerospace, & Agric. Implement Workers of America v. Brock, 477 U. S. 274 (1986).

17 Heather K. Gerken, Of Sovereigns and Servants, 115 Yale L.J. 2633 (2006).

Richard Briffault

Bio photo of Richard BriffaultRichard Briffault is the Joseoh P. Chamberlain Professor of Legislation and Vice Dean at Columbia Law School. He has been a visiting scholar at the Taubman Center for State and Local Government at Harvard’s John F. Kennedy School of Government. His publications include, “Our Localism,” Columbia Law Review (1990); “Who Rules at Home? One Person, One Vote and Local Governments,” University of Chicago Law Review (1993); “The Local Government Boundary Problem in Metropolitan Areas,” Stanford Law Review (1996); “A Government for Our Time? Business Improvement Districts and Urban Governance,” Columbia Law Review (1999); and “Localism and Regionalism”, University of Buffalo Law Review (2000).


In this article, Ms. Morris makes a useful contribution to the growing literature on the place of local governments in the American political system and on the role of local governments in the development and of constitutional norms. She makes a forceful case, rooted in democracy concerns, that local governments ought to be able to play a role in the elaboration and enforcement of constitutional norms. Where the article falls short is in its treatment of the Hunterdoctrine. I believe Ms. Morris mischaracterizes the doctrine, fails to recognize its potential benefits for local government law, and overstates its contemporary significance.

First, what is the Hunter doctrine? Ms. Morris contends there are three possibilities – that it is a rule of substantive constitutional law, a rule of standing, or a rule of capacity to sue – and she ultimately settles on the latter. In her view, Hunter determined that a local government cannot bring a claim of constitutional violation against its state because of the locality’s “intrinsic characteristics,” and that in her words, this “maps better onto the doctrine of capacity to sue than onto any substantive constitutional or standing doctrine.”1 Categorizing the doctrine matters for Ms. Morris because if Hunter is only a matter of legal capacity rather than substantive constitutional law or standing it can be seen as turning on issues of state law and as a result, in the legal world since Erie v. Tompkins , not a matter for federal court determination at all.

Unfortunately, Hunter is not about local government capacity to sue. As Ms. Morris explains, capacity addresses whether a party has “inherent authority” to sue “should not be confused with the question of whether a party has an enforceable right or interest.” Well, Ms. Morris has confused those questions. In Hunter, and all the cases in the Hunter line, the Supreme Court never doubted the capacity of the local government to bring the legal question before it. In Hunter, the Court devoted several pages to parsing the substantive legal questions. The issue of legal capacity never arose probably because it could not have been an issue as the case was brought by individuals challenging the loss of their local government, not by a locality. In the later Hunter cases in which suit was brought by a locality – City of Pawhuska v. Pawhuska Oil & Gas Co.,2 City of Trenton v. New Jersey,3 City of Newark v. New Jersey,4 Williams v. Mayor and Council of Baltimore5 — the local government’s capacity to sue never came up as an issue. In each of these cases, the Court reached the merits of the city’s constitutional claim, which it could not have done if the city lacked capacity to sue. In Trenton v. New Jersey, which involved the city’s challenge to a state law imposing a fee on the city’s use of water drawn from the Delaware River, the Court considered whether the City, which had succeeded to a state grant initially issued to a private water company, was being regulated in its governmental or its proprietary capacity.6 The distinction, which the Court deemed critical for the merits of the City’s constitutional claim, would have been irrelevant if the City lacked legal capacity to sue altogether. Similarly, in Williams v. Baltimore, which involved a state law exempting a railroad from the city’s property tax, after the Court quickly dismissed the City’s federal constitutional challenge, the Court went on to consider several additional issues raised by the City, and to find that the City had standing to raise certain state law issues.7 That seems totally inconsistent with the idea that the City lacked capacity to sue. So, too, as Ms. Morris points out in her draft, the Court “has allowed localities to bring constitutional claims against public entity defendants other than their own states.”8 That is totally inconsistent with any notion that local governments lack legal capacity.

As Ms. Morris accurately points out, there is some division within the courts over whether Hunter is a doctrine of substantive constitutional law or a rule of standing. My own view, given the number of times the Court has considered and decided the merits of constitutional claims brought by local governments, is that it is a substantive doctrine and not a bar to local government standing, but I acknowledge that some courts and commentators have gone the other way. But the one thing it is not is a determination that local governments lack the legal capacity to litigate claims in federal court. That being the case, Ms. Morris’s contention that everyone else has somehow failed to see that Hunter was undermined by Erie collapses. Erie eliminates general federal common law as a rule of decision in diversity cases. But Hunter and the Hunter doctrine are about constitutional law, either about the substance of doctrine or standing to bring constitutional claims. Erie is irrelevant.

Second, although I don’t want to make the case for the Hunter doctrine or Hunter’s theory of state-local relations, it is worth pointing out that the Hunter doctrine – particularly the Hunter case itself – has some positive aspects, even for localists. The notions of local autonomy and local democracy provide no standard for determining the proper size, scale, boundaries, functions, powers of local governments. Most of our metropolitan areas are fragmented into dozens, and in some areas, hundreds, of relatively small local governments. These governments possess vastly different amounts of taxable wealth, have very different needs, and are often highly segregated from each other by race, ethnicity, class, or income. Local land use and zoning decisions can promote sprawl, exacerbate class and ethnic differences, and contribute to the frenzied interlocal competition for economic development. Several decades of school finance reform litigation have repeatedly demonstrated the consequences of metropolitan fragmentation for interlocal differences in school spending and educational quality. It is conceivable that a state might want to create regional bodies, change local boundaries, check the external or exclusionary effects of local land use actions, or redistribute wealth from richer to poorer communities. Hunter provides that the wealthier local governments or more successful local governments that have benefited from the status quo cannot argue that such state actions reallocating boundaries, powers, functions, or resources among local governments or between localities and their state do not, as a general matter, raise federal constitutional questions under the contracts, due process, equal protection, or privileges and immunities clauses. Given that there are already enough political and state constitutional obstacles to reforming our local government system, a finding that as a general rule such changes do not raise federal constitutional issues may not be such a bad thing.

Finally, even to the extent that Hunter has operated to curtail local autonomy, Ms. Morris overstates its significance as a bar to local participation in the elaboration of constitutional norms. Federal constitutional law also recognizes the value of local autonomy and local democracy. The cases applying the one person, one vote doctrine to local government are based on the finding that “institutions of local government have always been a major aspect of our system, and their responsible and responsive operation is today of increasing importance to the quality of life of more and more of our citizens.”9 Local governments as co-plaintiffs with their residents have succeeded in bringing equal protection constitutional challenges to state laws that invidiously stripped them of certain powers.10 Moreover, in our system the federal constitution is not the only source of constitutional norms and federal courts are not the only forum for their enforcement. Virtually every state constitution has bill of rights-type provisions, including measures providing for equal protection and due process; many are often more generous than their federal counterparts. As Ms. Morris points out, nearly all states have some form of home rule, and most allow their localities to bring state constitutional claims against their states in state court. Hunter poses absolutely no bar to local government advocacy of state constitutional claims – including claims vindicating individual rights – in state courts.

There may be much to be said for a greater local role in the elaboration of constitutional norms, but that does not require the elimination of Hunter. Moreover, before Hunter is discarded we need to think more clearly about how recognition of local constitutional rights against states would affect the future of state-local and inter-local relations and avoid creating new barriers to the reform of the governance of metropolitan areas.

1 Morris Draft at p. 28.

2 250 U.S. 394 (1919).

3 262 U.S. 182 (1923).

4 262 U.S. 192 (1923).

5 289 U.S. 36 (1933).

6 262 U.S. at 191.

7 289 U.S. at 40-48.

8 Morris Draft at p. 23.

9 Avery v. Midland Co., 390 U.S. 474, 481 (1968).

10 See, e.g., Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982); Romer v. Evans, 517 U.S. 620 (1996).