Thursday, January 17, 2019
Sarah Swan has posted to SSRN Preempting Plaintiff Cities. The abstract provides:
Within the city-state relationship, states hold an enormous amount of power. Recently, states have been using that power to pass extremely aggressive preemption laws that prohibit cities’ regulatory efforts on many fronts. These new preemption laws most commonly occur in the context of red states limiting the regulatory scope of blue cities, inflaming those already tense city-state relationships and cutting into what many view as the appropriate scope of local autonomy.
But despite this intense clash in the regulatory sphere, when we move away from the world of city regulation and toward the world of city litigation, things look surprisingly different. Although cities have been bringing forward hundreds of quite controversial claims against corporate wrongdoers for harms ranging from the subprime mortgage crisis to the opioid epidemic, such plaintiff city litigation has provoked relatively little state hostility. States have not ratcheted up their response to this exercise of city power in at all the same way as they have for regulation. Rather, states have shown a remarkably limited appetite for preempting plaintiff city litigation.
What accounts for these differing responses? Three main factors are likely in play. First, while regulatory preemption is largely the result of intense political polarization, states have historically viewed litigation against corporate wrongdoers in less partisan terms. Both blue and red states have themselves engaged in this type of litigation, and there is thus an institutional tradition of flexibility in this context. Second, and relatedly, the issues at the heart of plaintiff city litigation are often not as politically divisive as those at the heart of the preempted regulations. Harms like lead paint poisoning and the opioid epidemic have attracted widespread condemnation, while many of the regulation preemption subjects remain hotly contested. Finally, unlike regulation, litigation is not an obvious instrument of governance. It has unpredictable outcomes, it is not an exclusively governmental power, and it relies on existing law.
Since plaintiff city litigation operates mostly outside of state crosshairs, it can provide a space for cities looking to pursue progressive goals. Plaintiff city litigation may not achieve the same immediate governance goals as regulation, but it does have significant political benefits for cities and their residents. Thus, even in an era of rampant regulatory preemption and deep political animosity between cities and states, plaintiff city litigation presents a viable parallel track for cities to continue their pursuit of urban social justice. Although such litigation does not directly address the contentious issues forming the basis of regulatory battles, it does offer a means of protecting vulnerable communities and advancing goals of democratic equality in other ways.