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Document Type

Article

Abstract

In two seemingly antithetical trends, U.S. law increasingly recognizes corporate rights while denying similar rights in the municipal context. Although other corporate forms have celebrated major victories in the First Amendment context, courts have suggested that municipalities lack any constitutional rights, and states increasingly preempt local governments’ abilities to address pressing societal concerns. Yet U.S. municipalities are, and have long been, corporations. The erosion of municipal power is problematic because cities’ importance is growing.

Many accounts have bemoaned the lack of municipal rights in the context of weak local home rule authority, but this Article takes a different approach. It argues that there are many municipal rights in existing law, particularly if one extends the functionalist theory of the corporation to encompass municipal corporations. The legal justifications for corporate rights, such as contributing to the marketplace of ideas, vindicating individual preferences, and amplifying individual voices of their members, are often more applicable to the municipal corporation than other forms of corporations, yet many of these rights have not been ex-tended to the municipal context.

This Article accordingly calls for enhanced attention to municipal corporate rights in the context of federalism and constitutional rights. The Article does not argue that municipal corporate rights should consistently trump legitimate state reasons for local preemption or that municipalities should be afforded all federal constitutional rights. Instead it argues that in preemption questions and constitutional rights cases, two functional considerations should play a central role in courts’ analyses. First, courts should ask whether protecting the municipality against state preemption, or granting it protection under a federal constitutional right, would achieve the core purposes of intrastate federalism or the constitutional right. Second, courts should ask how these favorable outcomes for a municipality would help or harm the municipality’s role, both as a government and a corporate provider of a city brand and services.

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