Document Type

Article

Publication Date

1990

Abstract

Two themes dominate thejurisprudence of American local government law: the descriptive assertion that American localities lack power and the normative call for greater local autonomy. The positive claim of local legal powerlessness dates back to the middle of the nineteenth century and continues to be affirmed by treatises and commentators as a central element of state-local relations. The argument for local selfdetermination has a comparably historic pedigree and broad contemporary support. The scholarly proponents of greater local power – what I will call "localism" – make their case in terms of economic efficiency, education for public life and popular political empowerment – a striking harmonization of the otherwise divergent values of the free market, civic republicanism and critical legal studies.

The law of state-local relations, however, is more complex than the dominant account suggests. The insistence on local legal powerlessness reflects a lack of understanding of the scope of local legal authority. Most local governments in this country are far from legally powerless. Many enjoy considerable autonomy over matters of local concern. State legislatures, often criticized for excessive interference in local matters, have frequently conferred significant political, economic and regulatory authority on many localities. State courts, usually characterized as hostile to localities and condemned for failing to vindicate local rights against the states, have repeatedly embraced the concept of strong local government and have affirmed local regulatory power and local control of basic services. Localism as a value is deeply embedded in the American legal and political culture.

Disciplines

Housing Law | Law | State and Local Government Law

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