State Litigation during the Obama Administration: Diverging Agendas in an Era of Polarized Politics

Throughout the Obama Administration, state attorneys general (AGs) have collaborated on several high-profile political issues. To get a fuller picture of this contemporary AG activism, this article analyzes AG participation in lawsuits and amicus curiae briefs before the U.S. Supreme Court across three presidential administrations. The results suggest that AGs’ agendas have increasingly diverged throughout the Obama Administration, reflecting greater vertical conflict between AGs and the federal government as well as horizontal conflict among AGs themselves. Several factors have contributed to this development, including the broader polarization of American politics, intensified activism among Republican AGs, and increased collaborations between AGs and ideological interest groups. Much as with partisan contestation in other venues, these AG conflicts show few signs of abating

The Public Face of the \u27Litigation State:\u27 Federal Empowerment of Litigation by State Governments

Scholars have recently begun exploring the construction of what Sean Farhang has termed the “litigation state” – namely, the distinctly American way in which contemporary federal programs are enforced by means of litigation. The attention in this literature to date has focused on why Congress has encouraged private litigation to enforce various statutory programs. This paper examines the emergence of a related and no less important development – the federal government’s encouragement of state government litigators to help enforce federal regulatory programs, especially state attorneys general ( AGs ). Examining several decades’ worth of congressional actions, court decisions, and federal administrative initiatives that have empowered state AGs, this paper explores how and why Congress and other federal institutions have placed increasing reliance on state AGs to enforce federal law. This question has become important not only because this federal empowerment has been a major driver of the prominent regulatory role state AGs have taken on in recent years, but because the political dynamic concerning state litigation differs from other aspects of the litigation state

Law Enforcement as Legal Mobilization: Reforming the Pharmaceutical Industry Through Government Litigation

Scholars of legal mobilization have long explored how litigation is used as a resource for social and political change. While most studies focus on the actions of private groups, this article considers law enforcement as a form of legal mobilization. Employing a case study of recent pharmaceutical litigation, this article examines how prosecutors have mobilized the law to reshape corporate responsibilities in the prescription drug industry. Prosecutors\u27 litigation campaigns have forced changes in organizational practices, expanded the scope of the conflict over pharmaceutical industry actions, and established new legal norms that have spread throughout the political system. This form of prosecutor-led legal mobilization has occurred in other contexts as well, including gun control and mortgage lending. In addition to indicating how lawyers within the state can engage in a form of cause lawyering, the government litigation explored in this article illustrates both the instrumental and constitutive power of the law

Gubernatorial Power and the Nationalization of State Politics

Reviewing Saladin M. Ambar, How Governors Built the Modern American Presidency (2012) and Thad Kousser & Justin H. Phillips, The Power of American Governors: Winning on Budgets and Losing on Policy

Litigating the Public Interest in the Gilded Age: Common Law Business Regulation by Nineteenth-Century State Attorneys General

Heeding recent calls to explore the contributions of creative political actors other than federal judges to the process of American legal development, this article examines the role of state attorneys general (SAGs) during the period of rapid industrialization of the late nineteenth and early twentieth centuries. Consistent with recent revisionist accounts concerning the extent of government power during this era of supposed laissez-faire, I find that SAGs during this period actively and creatively employed ancient common law legal theories in new ways to address the emerging corporate order during this time. Relying on a review of state court cases and newspaper accounts from the period, I examine how SAGs pursued the public interest by seeking injunctions against businesses and even corporate dissolution through their use of public nuisance and quo warranto theories. This litigation served as a form of regulation through litigation at a time in which administrative solutions were lacking and also influenced statutory developments during the period

The Newest \u27War on Drugs:\u27 Regulating Pharmaceuticals through State Litigation

State-driven litigation has had increasing influence in the development of national policy in recent years, including in national health policy. One prominent recent example includes the efforts of several state governments to bring coordinated constitutional challenges against one of the Obama Administration’s key first term achievements, the Patient Protection and Affordable Care Act. This paper examines how states have influenced health care policy influence in a more subtle but no less important litigation campaign. Over the past decade, state prosecutors have reached numerous multi-million dollar settlements with the nation’s largest pharmaceutical companies imposing a variety of restrictions on prescription drug pricing and advertising. Though often relying upon state law claims, these settlements have created new de facto national standards covering the drug industry – frequently going beyond and even against express congressional action. Relying upon an analysis of numerous legal cases, investigations, and settlements, this paper traces the development of this persistent litigation campaign and discusses the wide policy implications state litigation has had in this area. In doing so, the paper raises important broader questions about the operation of modern American public policy

The Dual Role of State Attorneys General in American Federalism: Conflict and Cooperation in an Era of Partisan Polarization

A key development during the Obama Administration was the increasing importance of state attorneys general (AGs) in national policymaking. This article examines the dual role that AGs played during the Obama years. The first role was highly contentious, with Republican AGs leading several multistate challenges to Obama Administration priorities and successfully limiting President Obama’s policy legacy. The second role was more cooperative, involving increasing coordination between AGs and their federal counterparts in national enforcement efforts. Relying on case studies in the areas of immigration enforcement, climate change regulation, and the oversight of for-profit higher education, this article highlights several crucial trends concerning the activities of these important state-level actors