INTRODUCTION 1160 I. THE DESIGN FLAW: LEGAL AND PRACTICAL BARRIERS TO ENFORCEMENT 1166 A. Rights Require Enforcement: The Enforcement Gap and Its 1166 Impact B. Rights Require Enforcers: The Absentee Federal Government 1168 C. Other Enforcers Are Restricted: Inability of Private 1177 Plaintiffs to Effectively Vindicate Their Own Rights II. FIXING THE DESIGN FLAW: CITIES AS ENGINES OF JUSTICE 1184 A. Multiple Enforcers Are Desirable to Protect Public Rights 1186 B. Cities Play a Role Distinct from Other Levels of Government 1189 1. Cities Are the Closest Representatives of Their 1189 Communities 2. The Role of Cities in Advancing Social Progress 1192 CONCLUSION 1195 INTRODUCTION
During "Superstorm" Sandy in 2012, New York University's Langone Medical Center lost power when its auxiliary generator malfunctioned. (1) At the height of the hurricane emergency, hospital staff sprang into action. In some cases, the staff hand-pumped oxygen into patients until they could be transported by ambulance to other facilities. (2) Ultimately, all 215 patients were evacuated from the hospital. (3) After the storm subsided, questions lingered about why Langone's back-up generators failed to function properly. (4) Ensuring that generators work is, after all, a safety best practice and a key element of disaster preparation for hospitals. (5)
Failing to have a reliable backup power source for a medical facility responsible for the care of critically ill patients is an example of a design flaw: a mistake or weakness in the way something or some process was designed. The generators at Langone were a single point of failure--a non-redundant part of a system whose failure will cause the entire system to shut down. (6)
This Article contends there is a design flaw in our current democratic system that similarly contains too few fail-safes and undermines a critical aspect of our policymaking infrastructure, i.e. the resources, personnel, and authority to enforce the laws we have passed as a polity. Like a hospital without a generator, an airplane with only one engine, an IT system with compromised critical hardware, or a large city with only one two-lane road out of town, concentrating the infrastructure for enforcing our rights in one level of government leaves residents vulnerable to underenforcement when extralegal forces--elections, budgetary challenges, and competing priorities--reduce the function of that governmental body.
Much of the scholarship on the role of cities begins, as one might expect, by looking at municipalities themselves. (7) The existing scholarship analyzes the unique powers of municipalities, the legal limitations of city authority, and the comparative role of cities in our federal system. (8) These critical issues are essential to understanding the formal power of cities and the relative merits of limitations on those powers. We approach our analysis, however, from a different perspective. We do not start with cities at all. We begin by focusing on a basic, functional question: How do we design an effective system that adequately enforces the laws of our democracy, protecting all members of our communities? How can we make the laws developed through the legislative process at all levels of government a reality for those they were written to protect? Put another way, how do we fully effectuate the democratic process?
Law is the language society uses to document and communicate the rules of our democratic system. Our laws express our values as a community and the will of the People through their representatives. (9) Laws prohibit myriad behaviors that harm our communities and that we, as a society, have decided should be impermissible: discrimination, (10) predatory lending, (11) and environmental despoliation, (12) for example. Having laws on the books provides a deterrent against illegal behavior. But, prohibitions only go so far. Civil law enforcement is essential if our policies are to be a reality for the communities they protect. If the laws passed by our elected representatives are legitimate, we should view enforcement as a necessary corollary to legislative policymaking to ensure compliance with those laws. Indeed, when our laws go unenforced, our democracy cannot function properly.
In practice, however, our communities do not currently receive the full benefit of the laws written to protect them due to at least three phenomena described in this Article. (13) First, our laws are under-enforced, and this "enforcement gap" means that many legal violations go undetected and unaddressed, undermining the force of those laws to regulate conduct in the workplace, marketplace, and broader community. (14) Second, the Trump administration has pulled back on its enforcement of key public rights. (15) Not only have leaders of prominent federal agencies expressed their intention to be less aggressive in fulfilling their roles as protectors of civil, economic, and environmental rights, but many have articulated and demonstrated an outright hostility to those protections. (16) Third, the power of private litigants to vindicate their own rights in court has been diminished; over the past decade, constriction of laws related to class-action lawsuits and the increased acceptance of mandatory arbitration clauses and class-action waivers have left individuals who experience harm in the workplace or at the hands of an unscrupulous company without much meaningful recourse. (17)
The confluence of these three trends exposes a design flaw in our current democratic system. Laws are under-enforced, and two of the actors previously well-situated to enforce the rights enshrined in those laws are either inactive or blocked. As a result, our most vulnerable communities are without defenders, the extent of their protections drastically cut as a result of one federal election. This design flaw has both functional and theoretical effects. From a functional perspective, it subjects people to real-life harm and loss of wages, employment, capital, housing, and other necessities of modern life, even when the conduct that caused those losses is contrary to existing law. (18) From the perspective of democratic theory and norms, it undermines the legitimacy of institutions charged with representing the will of the People through rule of law when those laws lack real-life effect.
This Article argues that a system with built-in redundancy and diversification by design, in which every level of government is ready and able to enforce our core rights and freedoms, would resolve this design flaw and yield both practical and theoretical benefits. We present city affirmative litigation as a critical component of this framework. Our proposed solution to this design flaw would incorporate two concepts: redundancy and diversification. By redundancy, we mean that an effective system should have more than a single point of failure. Given the importance of enforcement as a means of effectuating duly-enacted policy and fulfilling the representational values of a democracy, redundancy by design would ensure that no one agency or election could offline enforcement entirely. By diversification, we mean that an effective system should have a diversified set of enforcers to allow for effective resolution of the numerous and complex problems presented by law violations. Additionally, because "the People" can mean different things depending on a district or state's boundaries, diversification would ensure that different majorities can set different priorities for enforcement.
Increased city engagement in enforcing public rights laws is an important and under-utilized solution that incorporates both concepts of redundancy and diversification. (19) Cities should have the ability to be enforcers and protectors of their communities by investigating legal violations and filing lawsuits. Increasing affirmative litigation by cities is a necessary and desirable response to a design flaw that concentrates too many enforcement resources in one level of government.
Part I describes the three above-listed trends in three sections: Part I.A articulates the need for enforcement as a critical step in policy making efforts and discusses the gap between the laws on the books and the lived realities of many people those laws are written to serve (the so-called "enforcement gap"). Part I.B addresses the role of the federal government as a dominant government enforcer of our core rights and protections and highlights the ways in which the current administration has abdicated that role. Part I.C outlines the legal limitations on private enforcement and the practical impact of WalMart Stores, Inc. v. Dukes (20) and AT&T Mobility LLC v. Conception (21) and their progeny on rights enforcement. Part II proposes affirmative litigation by cities as one viable solution to the confluence of factors operating to weaken protections under the law. The concepts of redundancy and diversification offer compelling rationales for increased city affirmative litigation as a design solution to ensure better effectuation of the People's policy choices through their representatives. Moreover, cities should have an active role in rights enforcement at all times, not just in response to the current crisis. (22)
THE DESIGN FLAW: LEGAL AND PRACTICAL BARRIERS TO ENFORCEMENT
As mentioned above, our current government contains a fundamental design flaw where one point of failure exposes the entire system and leaves the People vulnerable and defenseless. This Part describes three phenomena that prevents those in need of the full protection of law from obtaining the enforcement sought and entitled. This Part proceeds in the three sections: Part I.A addresses the need for enforcement as a critical step in policy making efforts and elaborates on the reputed enforcement gap widening between written law and those people the laws were written to protect. Part I.B discusses federal government's role as a...