By: Kyle J. Blasinsky*
Abstract
Cities are an important tool for self-governance in the United States. These governments reflect their citizens’ identities, values, and beliefs, constituting much more than random groupings of individuals who collectively buy municipal services. While cities have always been active litigants, since the 1980s, they have increasingly leveraged offensive litigation as a means of upholding and defending the interests of their citizens, securing financial compensation for mass-tort style harms, and furthering state-building efforts. Simultaneously, states have engaged in new, punitive forms of preemption—seeking to stymie city-led lawsuits through parallel state attorneys general–initiated parens patriae actions and state legislation that limits cities’ regulatory and litigation powers. Some of this preemption is warranted insofar as cities’ rationale for litigation are illegitimate, as when cities use litigation to seek windfall settlement recoveries or undermine state legislative authority, but in other cases where truly local issues are involved, a city-initiated lawsuit is an appropriate tool for local governance.
This Essay argues first that states should permit city-led lawsuits concerning truly local issues that the state, whether due to its lagging institutional competency or resource constraints, is ill-equipped to address. By contrast, when both a state and its constituent cities seek to litigate an issue, state attorneys general should lead the effort in order to maximize the benefits of centralized litigation; however, cities should be afforded additional procedural protections in such cases to ensure their interests are adequately represented by the state. Reforms centered on “loyalty,” “exit,” and “voice” have been proposed to address issues in other aggregate litigation contexts—both public and private—and offer a useful framework for assessing reforms to safeguard defensible city suits from overly broad state preemption efforts too. Cognizant of the benefits from centralized aggregate litigation and the political reality of the present moment, this Essay next argues that where a state leads litigation implicating its cities’ interests, those cities should specifically be afforded heightened voice protections to ensure any settlement or judgment sought is informed by their needs, which ought to be represented by the state attorney general acting as parens patriae in the lawsuit. Together, such a model of government-led litigation offers a politically palatable distribution of litigation authority that seeks to protect cities’ and states’ interests while preserving the benefits of public aggregate litigation.
*Ph.D. Program in Law and Economics, Vanderbilt Law School, Nashville, Tennessee.
Suggested Citation: Kyle J. Blasinsky, Cities on Offense: Why Cities Bring Suit and What States Should Do About It, 129 Penn St. L. Rev. Penn Statim 181 (2025).