Federalism and accountability: State attorneys general, regulatory litigation, and the new federalism

California Law Review

Volumn 95, Issue 3, 2007, Pages 885-914

  Meyer, Timothy ^a,b  

^a Boalt Hall University of California   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

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EID: 34548608257     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (161)

1. 514 U.S. 549 (1995).
2. 529 U.S. 598 (2000).
3. 505 U.S. 144 (1992).
4. Gonzales v. Raich, 545 U.S. 1, 42, (2005) (O'Connor, J., dissenting).
5. See New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997).
6. See Jason Lynch. Federalism, Separation of Powers, and the Role of State Attorneys General in Multistate Litigation, 101 COLUM. L. REV. 1998, 2003 (2001) (noting that traditionally SAGs exercised their litigation authority to bring intrastate consumer protection suits).
7. See Michael S. Greve, Cartel Federalism? Antitrust Enforcement by State Attorneys General, 72 CHI. L. REV. 99 (2005).
8. See The Role of State Attorneys General in Environmental Regulation, 30 COLUM. J. ENVTL. L. 335, 342-43 (2005) [hereinafter The Role of Attorneys General] (describing Connecticut v. Am. Elec. Power Co., No. 04 Civ. 5669, 2004 WL 1685122 (S.D.N.Y. filed July 21, 2004), a multistate suit aimed at reducing the harmful emissions by power plants).
9. See Renee M. Jones, Law, Norms, and the Breakdown of the Board: Promoting Accountability in Corporate Governance, 92 IOWA L. REV. 105, 145 (2006) (describing how former New York Attorney General used litigation as a tool to force reform in the financial services industry).
10. See New York, 505 U.S. at 168.
11. There are in fact more than fifty, if one counts the attorneys general of the District of Columbia, Puerto Rico, and other American territories.
12. Throughout this Comment, the term "regulation" is used to refer to litigation of SAGs that has consequences for the ways in which business organizations and industries operate. While this litigation is not necessarily regulation in the administrative sense, its effect is to alter the behavior of corporations and business organizations in the same way that administrative actions do. It is for this reason that a variety of scholars have referred to lawsuits designed to change the way businesses operate as "regulation through litigation," or other similar names. See, e.g., REGULATION THROUGH LITIGATION (W. Kip Viscusi ed., 2002).
13. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954).
14. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 550, 552 (1985).
15. See 514 U.S. 549 (1995).
16. See 529 U.S. 598 (2000).
17. But cf. Gonzales v. Raich, 545 U.S. 1 (2005) (holding that the application of the federal Controlled Substances Act to intrastate growers and users of marijuana does not violate the Commerce Clause).
18. 514 U.S. at 551.
19. 529 U.S. at 601.
20. See 521 U.S. 507, 520 (1997).
21. See 505 U.S. 144 (1992).
22. See 521 U.S. 898 (1997).
23. New York v. United States, 505 U.S. 144, 168 (1992).
24. Id. at 181.
25. 505 U.S. at 175.
26. 521 U.S. at 934.
27. 505 U.S. at 151 (noting that the statute at issue was based on a proposal from the National Governor's Association).
28. See supra notes 7-10.
29. Lynch, supra note 6, at 2006.
30. Cornell W. Clayton, Law, Politics and the New Federalism: State Attorneys General as National Policymakers, 56 THE REVIEW OF POLITICS 525, 527 (1994).
31. Lynch, supra note 6, at 2002.
32. Clayton, supra note 30, at 528.
33. Lynch, supra note 6, at 2003.
34. This monopoly on access to the courtroom is similar the Justice Department's near monopoly over litigation in the federal government. See DONALD HOROWITZ, THE JUROCRACY: GOVERNMENT LAWYERS, AGENCY PROGRAMS, AND JUDICIAL DECISIONS 5 (1977).
35. See, e.g., Al Baker, Brief Unity Turns To Discord in Feud Over Lobbying Laws, NEW YORK TIMES, Dec. 4, 2003, at B6.;
36. Raymond Hernandez, In New York, A Record Fine Over Lobbying, NEW YORK TIMES, Nov. 13, 1999, at A1.
37. Al Baker, Two State Agencies Become Embroiled in a Dust-Up Over Lobbying Rules, NEW YORK TIMES, Nov. 29, 2003, at B3.
38. Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 268 (5th Cir. 1976).
39. See Barry Friedman, The Politics of Judicial Review, 84 TEX. L. REV. 257, 311-12 (2005) (describing the history of the use of spatial models to study interbranch relations).
40. John Ferejohn and Barry Weingast, A Positive Theory of Statutory Interpretation, 12 INTER'L REV. L. & ECON. 263, 268 (1992).
41. Matthew D. McCubbins, Roger G. Noll, & Barry R. Weingast, Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431, 433-34 (1989) (noting that in principal-agent theory, it is costly to a principal to monitor and enforce promises made by the agent);
42. see also John A. Ferejohn & Larry D. Kramer, Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint, 77 N.Y.U. L. REV. 962, 974 (2002) (noting that higher transaction costs make overturning judicial action more difficult).
43. See e.g., McCubbins, et. al., supra note 40, at 435 (noting that the ability to appoint administrators in the federal context gives the President greater influence over administrative policy).
44. Recall that only forty-three of fifty states elect their state attorney general (see Introduction, supra). In the remaining seven states, the attorney general will be more directly accountable to the institutions that choose the officeholder.
45. See People ex rel. Deukmejian v. Brown, 172 Cal. Rptr. 478, 482-83 (1981) (holding that the governor retains the "supreme executive power" to determine the public interest in the event of a conflict between the governor and the attorney general, and that the governor could properly seek a court order enjoining the attorney general from representing interests adverse to the governor).
46. See, e.g., Feeney v. Commonwealth, 366 N.E.2d 1262, 1265-67 (1977) (holding that the attorney general possesses ultimate authority over litigation).
47. Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (2003).
48. See Pam Belluck, Governor of Massachusetts Seeks to Delay Same-Sex Marriages, NEW YORK TIMES, April 16, 2004, at A12.
49. See Perdue v. Baker, 586 S.E.2d 606, 607 (2003).
50. Id.
51. See Georgia v. Ashcroft, 537 U.S. 1152 (2003).
52. The opinion stated that both offices had responsibility for determining the state's litigation positions. See Perdue, 586 S.E.2d at 608. However, the opinion declined to offer any legal devices through which the governor could assert this authority.
53. For an overview of case law from various states regarding the allocation of power between the SAG and the governor, see William Marshall, Break up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive, 115 YALE L.J. 2446, 2453-68 (2006).
54. See Michael Signar, Constitutional Crisis in the Commonwealth: Resolving the Conflict between Governors and Attorneys General, 41 U. RICH. L. REV. 43 (2006), for an argument that the Virginia legislature should establish a "Governor's counsel" in each state agency in order to limit the influence of the SAG.
55. See Florida ex rel. Shevin, 526 F.2d 266, 268 (5th Cir. 1976).
56. MARTHA A. DERTHICK, UP IN SMOKE 164 (2002).
57. See Part III, infra.
58. See Perdue, 586 S.E.2d at 611-12.
59. See ROBERT COOTER, THE STRATEGIC CONSTITUTION 25 (2000).
60. A candidate's profile is, of course, not simply created by his position on relevant policies, but is also determined to some extent, perhaps to a high extent, by a personality profile. However, a candidate's personal profile is irrelevant for the purposes of institutional analysis.
61. See, e.g., John R. Hibbing, Ambition in the House: Behavioral Consequences of Higher Office Goals Among U.S. Representatives, 30 AM. J. POL. SCI. 651 (1986) (finding that members of the U.S. House of Representatives running for the Senate adapt their behavior to appeal to the constituency that they seek to represent).
62. Wayne L. Francis, Lawrence W. Kenny, Rebecca B. Morton & Amy B. Schmidt, Retrospective Voting and Political Mobility, 38 AM. J. POL. SCI. 999, 1000 (1994) (presenting evidence that candidates for higher office behave as if they expect voters for higher office to judge them on their records in "lower" office).
63. This model can be complicated where political interest groups concerned with non-law enforcement issues into which a SAG expands anticipate either his innovation or his future campaigns for higher office. In such situations, interest groups with little interest in the SAG office may try to influence voters in SAG elections. Because most voters presumably choose a SAG based on law enforcement issues, such political interest groups will try to frame a candidate one way or another on law enforcement issues. However, the fact that their involvement is motivated by non-law enforcement concerns means that such considerations can play a role in SAG elections.
64. Carolyn Shapiro, The Limits of the Olympian Court: Common Law Judging Versus Error Correction in the Supreme Court, 63 WASH. & LEE L. REV. 271, 277 (2006) (noting that in 1988 Congress removed most of the Supreme Court's mandatory jurisdiction).
65. Susan B. Haire, Stefanie A. Lindquist & Donald R. Songer, Appellate Court Supervision in the Federal Judiciary: A Hierarchical Perspective, 37 LAW & SOC'Y. REV. 143, 145 (2003).
66. Id.
67. Mariano-Florentino Cuellar, Auditing Executive Discretion, 82 NOTRE DAME L. REV. 227, 241 (2006) (noting that courts rarely if ever review prosecutors criminal charging decisions).
68. See Clayton, supra note 30, at 538.
69. Cf. The Role of State Attorneys General in Environmental Regulation, 30 COLUM. J. ENVTL. L. 335, 342-43 (2005) (Maine Attorney General Stephen Rowe describes his office's decision not to join an interstate environmental suit, Connecticut v. Am. Elec. Power Co., No. 04 Civ. 5669, 2004 WL 1685122 (S.D.N.Y. filed July 21, 2004) as "basically logistical. We saw it as being resource intensive.").
70. See Derthick, supra note 54, at 164.
71. Id., at 73.
72. See, e.g., Stephen Paul Mahinka & Kathleen M. Sanzo, Multistate Antitrust and Consumer Protection Investigations: Practical Concerns, 63 ANTITRUST L.J. 213, 215 (1994) (describing how states may pursue antitrust cases on their own behalf as direct purchasers, as well as on behalf of their consumers under the parens patriae provisions of federal antitrust laws).
73. Florida ex rel. Shevin, 526 F.2d 266, 268.
74. Derthick, supra note 54, at 32.
75. No. 04 Civ. 5669, 2004 WL 1685122 (S.D.N.Y. filed July 21, 2004).
76. For a complete treatment of the standing issues presented by Connecticut v. Am. Elec. Power. Co., see Thomas W. Merrill, Global Warming as a Public Nuisance, 30 COLUM. J. ENVTL. L. 293, 294 (2005).
77. See Part III, infra.
78. See, e.g., Michael Dubow, Restraining State Attorneys General, Curbing Government Lawsuit Abuse, 437 POL'Y ANALYSIS 1, 6 (2002) (arguing that the policies implemented by the Master Settlement Agreement were more appropriately the products of legislative, rather than judicial proceedings);
79. Robert B. Reich, Don't Democrats Believe in Democracy? WALL ST. J., Jan. 12, 2000, at A22 (calling regulation through litigation "faux legislation, which sacrifices democracy.").
80. The settlement also placed restrictions on certain advertising tactics, such as using cartoons in advertisements for tobacco, or sponsoring public events such as concerts. See Nat'l Ass'n of Attorneys Gen., Multistate Settlement with Tobacco Industry at 12, http://www.library.ucsf.edu/ tobacco/litigation/msa.pdf (last visited January 8, 2007).
81. See W. Kip Viscusi, Tobacco: Regulation and Taxation Through Litigation, in REGULATION THROUGH LITIGATION 23 (W. Kip Viscusi ed., 2002) (characterizing the tobacco settlement as an excise tax on tobacco products).
82. See Derthick, supra note 54.
83. See Derthick, supra note 54, at 220.
84. Thomas A. Schmeling, Stag Hunting with the State AG: Anti-Tobacco Litigation and the Emergence of Cooperation Among State Attorneys General, 25 LAW & POL'Y 429, 431 (2003).
85. Derthick, supra note 54, at 75 ("[T]he state would ask to be indemnified, as an innocent third party, for its medical expenditures on behalf of smokers.").
86. Those hurdles included a petition from the Governor to the state supreme court claiming that the attorney general lacked the authority to litigate on behalf of the state without an agency client, a claim which was later successful in West Virginia. See Derthick, supra note 54, at 79.
87. Schmeling, supra note 81, at 431, 433 (noting that West Virginia and Minnesota filed suits similar to Mississippi's suit later in 1994, and that 42 states filed within 4 years of the initial suit).
88. Derthick, supra note 54, at 79.
89. Id.
90. 1994 Fla. Sess. Law Serv. Ch. 94-251, § 4 (C.S.S.B. 2110) (West) (amending § 409.910(1) Fla. Stat. to read "Principles of common law and equity as to assignment, lien, subrogation, comparative negligence, assumption of risk, and all other affirmative defenses normally available to a liable third party are to be abrogated to the extent necessary to ensure full recovery by Medicaid from third party resources").
91. Id.
92. Derthick, supra note 54, at 83.
93. Id. at 84.
94. David S. Samford, Cutting Deals in Smoke-Free Rooms: A Case Study in Public Choice Theory, 87 KY. L.J. 845, 846 (1999). On June 17, 1998, the Senate voted on a cloture motion, seeking to end debate on Senate Bill 1415, the Universal Tobacco Settlement Act. The vote failed by a vote 57-42 in favor (60 votes are needed to pass a cloture motion), and thus the initial settlement failed to win congressional approval. Id.
95. Id. at 865-77 (describing the interest groups that participated in the Congressional negotiations over the 1997 settlement, and noting that that interests such as those of tobacco growers were initially excluded only to be added in to the final version of the bill), Derthick, supra note 54, at 143.
96. Id.
97. Derthick, supra note 54, at 172.
98. Id. at 170 (noting that the tobacco industry had always wanted a comprehensive settlement).
99. Id. at 182.
100. Id. at 197.
101. See Rorie L. Spill, Michael J. Licari, & Leonard Ray, Taking on Tobacco: Policy Entrepreneurship and the Tobacco Litigation. 54 POL. RES. Q. 605 (2001).
102. See id. at 615, 618.
103. See id. at 615-16.
104. Id. at 616.
105. Id.
106. Id. at 617.
107. Schmeling, supra note 81, at 429.
108. Id. at 432.
109. For an analysis of public goods, see generally MANCUR OLSEN, THE LOGIC OF COLLECTIVE ACTION (1971).
110. Schmeling, supra note 81, at 436. ("It is not at all clear that any political benefits flowed from the suits ...").
111. Id. at 439.
112. To limit their future liability, the tobacco companies insisted that all states be party to the settlement, thus negating the need for those states that had not yet filed to do so. See Schmeling, supra note 81, at 435.
113. Schmeling, supra note 81, at 439.
114. Id. at 440
115. Id. (discussing how an increase in the probability of creating a public good, in this case a settlement, increases the likelihood of contributing to the creation of the public good, i.e., filing suit).
116. Id. at 442-43.
117. Derthick, supra note 54, at 106.
118. In the language of economics, these costs are negative and positive externalities. See COOTER, supra note 57, at 106.
119. 126 S. Ct. 1843 (2006).
120. Id. at 1853 ("Changes in the river . . . fall within a state's legitimate legislative business and the Clean Water Act provides for a system that respects the states' concerns.").
121. Clayton, supra note 30, at 533.
122. See Derthick, supra note 54, see also Robert Kagan and William Nelson, The Politics of Tobacco Regulation in the United States, in REGULATING TOBACCO (2001).
123. See The Role of Attorneys General, supra note 8.
124. Id. at 340.
125. The eight states were Alabama, Delaware, Kentucky, North Carolina, North Dakota, Tennessee, Wyoming, and Virginia. See Schmeling, supra note 81, at 435.
126. Deathrick, supra note 54, at 163.
127. Id. at 172.
128. The Role of Attorneys General, supra note 8, at 342-43.
129. Derthick, supra note 54, at 172 ("North Carolina . . . had the choice of either participating and having its consumers of cigarettes pay higher prices while the state received a share of the new revenue, or not participating, in which case its consumers would still pay the higher prices but the state government would receive nothing.").
130. Schmeling, supra note 81, at 435.
131. Id. at 433 ("[T]he prospect of fifty state governments filing suit at once would alter the calculations of risk to the companies. In 1996 alone, the [tobacco] industry was estimated to have spent $600 million on legal fees, without having taken one case to trial.").
132. Derthick, supra note 54, at 170 (noting that the tobacco companies actually prevailed in a number of the suits brought by states).
133. The Role of Attorneys General, supra note 8, at 346.
134. Id.
135. Id. (discussing the tradeoff between the increase in resources from having additional states join a suit and the greater difficulty in reaching decisions with more parties).
136. See supra Part III.
137. Katherine Culliton, The Impact of Alcohol and Tobacco Advertising on the Latino Community as a Civil Rights Issue, 16 BERKELEY LA RAZA L.J. 71, 104 (2005).
138. Clayton, supra note 30, at 540.
139. See generally Clayton, supra note 30.
140. Id.
141. Id. at 542-43.
142. Id. at 543.
143. See Id. at 531; see also Spill, et. al, supra note 98.
144. See Part II, supra.
145. See James Traub, The Attorney General Goes to War, NEW YORK TIMES, June 16, 2002, at S6.
146. See Derthick, supra note 54, at 54.
147. The Role of Attorneys General, supra note 8, at 339.
148. See Derthick, supra note 54, at 194.
149. Traub, supra note 133.
150. 505 U.S. 144, 168 (1992).
151. Id.
152. Id. at 151.
153. Derthick, supra note 54, at 220.
154. See Lynch, supra note 6, at 2009.
155. Id. (noting that only a few states may be necessary to affect national change).
156. See Lynch, supra note 6, at 2023-24.
157. Id.
158. ROBERT KAGAN, ADVERSARIAL LEGALISM 182 (2001).
159. With respect to parts of a settlement that require legislation, this will not be true.
160. See Derthick, supra note 55, at 186.
161. See, e.g., New State Ice Co. v. Liebmann. 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting); Gonzales v. Raich, 545 U.S. 1, 43 (2005) (O'Connor, J., dissenting).