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Gerald E. Frug, The City as a Legal Concept, 93 Harv. L. Rev. 1057 (1980).

Abstract: Under current law, American cities are generally considered mere "creatures of the state," with their powers strictly construed and limited to those granted by the state. In this Article, Professor Frug examines city powerlessness and the arguments that support it. He finds that the law governing cities is properly explained as a political choice, one derived from the hostility of liberal political thought to the exercise of power by entities intermediate between, and thus threatening the interests of, the state and the individual. To demonstrate this, Professor Frug traces the legal history of the city, from the liberal attack on the powerful medieval city to the nineteenth century distinction between municipal corporations, seen as "public" entities requiring legal restraint, and private corporations, considered "private" entities deserving legal protection. Yet city powerlessness, Professor Frug argues, prevents the realization of "public freedom": the ability of persons to participate actively in the basic societal decisions that structure their lives. Moreover, the public/private distinction no longer justifies protecting corporate but not city power; our choice is a preference for hierarchical over democratic organization. Professor Frug concludes that granting cities real power, including the legal rights now enjoyed by private corporations, can best achieve "public freedom."