Local Government Standing as State Standing

Authors

Katharine Cooney
Katherine Mims Crocker, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

12-2025

Journal Title

Wisconsin Law Review

ISSN

1943-1120

DOI

10.59015/wlr.YPYK6623

Abstract

It is increasingly common, and controversial, for local governments to bring lawsuits as plaintiffs in federal court. Many questions about this practice raise matters that sound in policy. But some, including the issue of standing to sue, also raise issues of constitutional law. How local governments fit into standing rules should reflect how they fit into the U.S. constitutional system more broadly. As the Supreme Court put it in the famous (and infamous) 1907 case Hunter v. City of Pittsburgh, "[m]unicipal corporations are political subdivisions of the State, created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them." Local governments are arms of the state in our constitutional structure. The Hunter paradigm remains foundational in theory, but it oversimplifies matters in practice. Since the late nineteenth century, state law has granted localities increasing autonomy. Federal law, in turn, often treats localities as independent entities-with sometimes disparate results, including that while local governments are generally subject to the same constitutional burdens as states, they do not always enjoy the same benefits. Standing law provides local governments the worst of both worlds. As arms of the state, they are required by state law to conform their litigation conduct to state control. But as independent entities, they are prohibited by federal law from suing for harms beyond the limited set of injuries that private parties can suffer. So while there are good reasons to view municipalities as well situated to litigate both for themselves and on their citizens' behalf, standing law places a substantial barrier at the proverbial courthouse doors. This Essay argues that standing law should take the foundational understanding of local governments as arms of the state seriously-not just to municipalities' detriment, but also to their advantage. The law should view local government standing as state standing, such that states can, and frequently do, accord interests analogous to the state’s own and delegate authority to sue in the state’s place. This shift would allow localities to sue in more situations than current doctrine permits. But it would also respect the principle of ultimate state control.

First Page

1255

Last Page

1291

Num Pages

37

Volume Number

2025

Publisher

University of Wisconsin Law School

Recommended Citation

Katharine Cooney & Katherine M. Crocker, Local Government Standing as State Standing, 2025 Wis. L. Rev. 1255 (2025).
Available at: https://scholarship.law.tamu.edu/facscholar/2325

File Type

PDF