Noah M. Kazis is a Law Clerk to the Honorable Douglas P.Woodlock, United States District Court for the District of Massachusetts. Yale Law School, J.D. 2015. He would like to thank David Broockman, Conor Clarke, Heather Gerken, Henry Hansmann, Suzanne Kahn, Meredith Kane and David Schleicher for their insightful comments and helpful suggestions, and is especially grateful to Robert Ellickson for his support, encouragement and assistance.
LOCAL GOVERNMENT IS FRAGMENTED — usually. It is fragmented geographically, of course, with metropolitan areas carved into hundreds of independent municipalities. But local government is also fragmented functionally. For decades, single-purpose special districts have been replacing traditional general-purpose local governments, like cities and counties, as the providers of public services. In 1966, Los Angeles Mayor Sam Yorty testified before a subcommittee of the United States Senate on the “urban crisis” of the day. Eager to disclaim responsibility for fixing the problems facing Los Angeles in the wake of the Watts riots, Yorty repeatedly pointed out that independent agencies, such as the school board, were responsible for all the programmatic functions about which the senators were concerned. Exasperated, Connecticut Senator Abe Ribicoff pressed Yorty on the point. “This morning you have really waived authority and responsibility in the following areas: schools, welfare, transportation, employment, health, and housing, which leaves you as the head of the city basically with a ceremonial function, police, and recreation.” “That is right,” responded the mayor, “and fire.”1
Since Yorty made that statement, the number of independent special districts providing one or a few specified public services has roughly doubled.2 The role of traditional general-purpose governments — towns, cities, and counties — as the sole providers of local public services, which Yorty questioned in the 1960s, has only eroded since then. At no point during the last half-century did the growth in the number of special districts slow. In some parts of the country, residents pay taxes to a dozen different local governments, each providing a single specialized service.3 Indeed, for many cities and suburbs, Yorty’s list of municipal responsibilities would be two services too long: thousands of special districts now provide fire protection or manage parks and recreation.4
But Yorty included one final service under city control: the police. And even in the most fragmented places, where layers of overlapping special districts provide almost every public service, the police remain immune. Across the country, special districts essentially never provide policing. Policing is uniquely reserved for general-purpose governments. In some states, special police districts are forbidden outright. In others, they are legally permissible, yet still non-existent. Everywhere, policing resists the overwhelming trend in local government structure towards special district service provision.
This anomaly — which scholars have never before analyzed5 — has significant implications for the study of local government. First, it provides a new answer to the question of what local governments do. Traditionally, scholars have argued that citizens incorporate municipalities for two reasons: to regulate land use and control property taxes.6 While cities may do more, they need not. Most other significant functions can be, and are, performed instead by special districts or private contractors. This essay adds policing to that list. Citizens demanding additional policing cannot form a special district to provide it. They must form a municipality.
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