Top Ten List: Why State and Local Government Law in a Federal System Is More Complicated and More Interesting Than You Might Think

#10: States as Starting Point Not top down: states delegated limited powers to federal government Not bottom up: localities lack “inherent” power Complex changes in understanding of “federalism” New models for “home rule” Unsolved issues re regional governance

#9: History and change Historical understandings of corporations 19 th century worries about urban corruption and immigrants Progressive era and its goals Urban/suburban shifts Federal role in civil rights, roads & funding The current era: financial, partisan, citizen detachment?

#8: Governance & Services Understandings of “governance” and the relationship to individual and collective “good” are changing Beliefs in “market” solutions v. regulation “Privatization” growing across many arenas including service delivery (e.g. jails), public schools (home schooling, charter schools), homeowners associations Assumptions about appropriate funding streams and methods also in flux

# 7: State and local “labs” States are indeed diverse “laboratories” of federalism, with distinctive governance cultures and political philosophies State legislatures may be more able to respond quickly to pressing problems, and state executives & judges may be more attuned to realities on the ground Local governments are often sources of future state-level leaders

#6: Names and players There are many local government entities with different names: town, city, county, borough, township, district, authority The various local government entities have differing powers and responsibilities, often with overlapping but different territorial jurisdictions. Terminology varies from state to state

#5: Branches & Interaction Separation of powers is an important issue at the state level, and may be resolved with an eye to more detailed state constitutional provisions Interplay between legislative and judicial decisions around specific problems is more prominent, since legislators may seek advisory opinions and high courts and legislatures may pass hot potato issues back and forth

# 4: Legislative strategies Legislatures may address problems by: Delegating responsibility for action to executive branch agencies Directing those affected to act or refrain from acting in particular ways Creating financial incentives for action Legislative action may impact others’ approaches Deferring to resolutions by the courts or limiting judicial action Deferring to other levels of government, inducing or preempting action, partnering, mandating, ignoring

#3: Judicial methodology Judicial decisions affecting state and local governments must often be reached in contexts with political or financial overtones. The judiciary uses complicated strategies in reaching difficult decisions, including attention to state constitutions, development of unique rules of interpretation, and rhetorical reliance on artificial dichotomies that are often artificial and out of date as means of dealing with separation of powers concerns

# 2: The Law and Much More The law, policy, politics, and organizational cultures are often intertwined, but must be considered distinctly. Many local government officials are elected on a non-partisan and coalitions take different shapes. Lawyers working in settings with state and local governments need to understand politics and policy, and respect the murky lines where law begins and ends.

# 1: You and Your Role Individuals (like you) can make a difference in assuring that the public good is served Lawyers play many different roles in government settings: advisers, lobbyists, elected or appointed officials, litigators Lawyers need to be alert to ethical responsibilities (including who’s the client) and obligations to citizens at large (e.g. sunshine laws and procedural requirements).

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