The Local Turn; Innovation and Diffusion in Civil Rights Law

Olatunde C.A. Johnson, Columbia Law School


Is the future of civil rights subnational? If one is looking for civil rights innovation, much of this innovation might be happening through legislation, regulatory frameworks, and policies adopted by state and local governments. In recent years, states and cities have adopted legislation banning discrimination in housing based on the source of an individual’s income, regulating the consideration of arrest or conviction in employment decisions, and prohibiting discrimination in employment based on an applicant’s credit history. While the deployment of subnational power is not new to civil rights, what does appear novel is the number of these initiatives in recent years alongside the possibility that these state and local measures might not end inevitably with national civil rights legislation. Many of these innovations build on recent movements to use local regulatory frameworks to increase wages and work conditions for lower income workers, and these innovations address not just identity exclusion based on race or ethnicity but also exclusions based on socioeconomic status. The political economy that sustains their emergence and implementation depends on demographics and political cultures that are largely centered on cities and large metropolitan regions. In addition, some of the innovations proliferating at the state and local levels such as local first-source hiring, community-benefits agreements (CBAs), and inclusionary zoning depend on regulatory powers exclusive to subnational governments. This article explores whether this “local turn” in civil rights law can ever be a satisfactory equilibrium for those interested in advancing civil rights and equality, and offers a cautiously hopeful account of how these subnational innovations might succeed and even spread beyond particular localities.