Current regimes for distributing state and local authority have two primary flaws: (1) they unnecessarily restrict local authority by preventing local governments from passing private laws, and (2) they often require local ordinances to be enforced in state courts, thereby depriving local governments of the ability to interpret their own laws and requiring states to pay the judicial costs of local policy preferences. This Note suggests a new means of distributing state and local authority designed to address these two deficiencies: the reverse-commandeering system. The reverse-commandeering system would not distinguish between local authority to pass public and private laws. Instead, the reverse-commandeering system would (1) give local governments the option to create, staff, and fund their own municipal courts and (2) prevent local governments from passing ordinances that could not be enforced in their municipal courts. By doing so, the reverse-commandeering system would allow local governments to realize the benefits of private law and relieve states of the financial burden of the judicial enforcement of local ordinances.
The Reverse-Commandeering System: A Better Way to Distribute State and Local Authority,
Nw. U. L. Rev.