State enforcement of federal law

New York University Law Review

Volumn 86, Issue 3, 2011, Pages 698-765

  Lemos, Margaret H ^a  

^a NONE

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EID: 80052138199     PISSN: 00287881     EISSN: None     Source Type: Journal    
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References (309)

1. Roscoe Pound, Law in Books and Law in Action, 44 AM. L. REV. 12 (1910), reprinted in AMERICAN LEGAL REALISM 39, 39-40 (William W. Fischer III, Morton J. Horwitz, & Thomas A. Reed eds., 1993).
2. David Luban, A Flawed Case Against Punitive Damages, 87 GEO. L.J. 359, 377 (1998) ('[A]part from automobile-related injuries, Americans are extremely reluctant to sue. A large ICJ study found that claims were made in 44% of motor vehicle injuries, 7% of work-related injuries, and 3% of other injuries-all in all, in about one accidental injury in ten.'); see also Kevin M. Clermont & Theodore Eisenberg, Litigation Realities, 88 CORNELL L. REV. 119, 136 (2002) (discussing results of survey of more than five thousand households and reporting that 'even for ...substantial grievances, litigation is by no means a knee-jerk or common reaction in America, as overall only about 5% of the survey's grievances ultimately resulted in a court filing').
3. For example, in the 1990s the audit rate for individual tax returns was 1.7 percent and the probability of arrest for drunk driving was about 0.003. A. Mitchell Polinsky & Steven Shavell, The Economic Theory of Public Enforcement of Law, 38 J. ECON. LIT. 45, 71 n.77 (2000) (citing James Andreoni et al., Tax Compliance, 36 J. ECON. LIT. 818, 820 (1998), and Donald S. Kenkel, Do Drunk Drivers Pay Their Way? A Note on Optimal Penalties for Drunk Driving, 12 J. HEALTH ECON. 137, 145 (1993)).
4. See infra Part I.A.
5. See infra Part I.B (discussing state enforcement of federal law). This Article focuses on direct state enforcement of federal civil law. States may participate in various ways in the enforcement of federal criminal law as well, for example by arresting individuals for federal offenses. But states lack power to enforce federal criminal law directly, such as by prosecuting federal offenders themselves in state or federal court. States play a similar role with respect to federal immigration law. Under Section 287(g) of the Immigration and Naturalization Act, states or localities can sign a Memorandum of Understanding with the federal government to deputize officials to enforce federal immigration law 'in relation to the investigation, apprehension, or detention of [noncitizens] in the United States.' 8 U.S.C. § 1357(g) (2006). Deputized state officials obtain federal training from the federal Immigration and Customs Enforcement agency (ICE) and work under ICE's supervision. See Jennifer M. Chacon, A Diversion of Attention? Immigration Courts and the Adjudication of Fourth and Fifth Amendment Rights, 59 DUKE L.J. 1563, 1582-86 (2010) (discussing Section 287(g) arrangements). States also contribute to the criminal enforcement of immigration law by investigating and arresting offenders, though again they lack the authority to prosecute offenders directly. See 8 U.S.C. § 1252c (2006) (authorizing state and local law enforcement officials to arrest and detain certain illegal aliens 'for such period of time as may be required for the [ICE] to take the individual into Federal custody for purposes of deporting or removing the alien from the United States'); United States v. Santana- Garcia, 264 F.3d 1188, 1193-94 (10th Cir. 2001) (recognizing implicit authority for state police to detain suspects for federal immigration violations); Gonzales v. City of Peoria, 722 F.2d 468, 474-75 (9th Cir. 1983) (holding that state and local police may arrest suspects for violations of criminal, but not civil, provisions of federal immigration law). The current controversy regarding Arizona's immigration laws concerns efforts by the state to increase its role in implementing federal immigration rules in ways that are not authorized by federal statute. See Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009) (rejecting preemption challenge to Arizona law that authorizes attorney general to sue employers who hire illegal aliens in violation of federal law), cert. granted sub nom. Chamber of Commerce of U.S. v. Candelaria, 130 S. Ct. 3498 (2010); United States v. Arizona, 703 F. Supp. 2d 980 (D. Ariz. 2010) (enjoining portions of Arizona law authorizing police officers to check individuals' federal immigration status and to arrest individuals where there is probable cause to believe that they committed offenses that make them removable from United States). As such, they are distinct from the questions explored here, which involve state enforcement of federal law pursuant to explicit congressional authorization.
6. Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, § 1042, 124 Stat. 1376, 2012-14 (2010) (to be codified at 12 U.S.C. § 5552).
7. 153 CONG. REC. S15,990 (daily ed. Dec. 19, 2007) (statement of Sen. Mark Pryor) (arguing that Consumer Product Safety Improvements Act (CPSIA) 'ensures that [state attorneys general] can act as real cops on the beat, looking out for consumers and restoring confidence in the marketplace').
8. Forty-three states provide for popular election of the attorney general. In the remaining states, the attorney general is appointed: in Maine, by the legislature; in Tennessee, by the state Supreme Court; and in five states (Alaska, Hawaii, New Hampshire, New Jersey, Wyoming), by the governor. Only two states-Alaska and Wyoming- permit the governor to remove the attorney general at will. William P. Marshall, Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive, 115 YALE L.J. 2446, 2448 n.3 (2006).
9. Some scholars have analyzed state enforcement of federal law in a specific legal context, most notably antitrust. For critiques of state antitrust enforcement, see, for example, Michael S. Greve, Cartel Federalism? Antitrust Enforcement by State Attorneys General, 72 U. CHI. L. REV. 99 (2005), and Richard A. Posner, Federalism and the Enforcement of Antitrust Laws by State Attorneys General, in COMPETITION LAWS IN CONFLICT: ANTITRUST JURISDICTION IN THE GLOBAL ECONOMY 252, 252-66 (Richard A. Epstein & Michael S. Greve eds., 2004). For defenses, see Stephen Calkins, Perspectives on State and Federal Antitrust Enforcement, 53 DUKE L.J. 673 (2003), Carole R. Doris, Another View on State Antitrust Enforcement-A Reply to Judge Posner, 69 ANTITRUST L.J. 345 (2001), Harry First, Delivering Remedies: The Role of States in Antitrust Enforcement, 69 GEO. WASH. L. REV. 1004 (2001), and Ronald L. Hubbard & James Yoon, How the Antitrust Modernization Commission Should View State Antitrust Enforcement, 17 LOY. CONSUMER L. REV. 497 (2005). As I explain below, antitrust is an extreme and unusual case for state enforcement. See infra notes 271-72 and accompanying text (distinguishing antitrust as unique among areas of state enforcement). It would be a mistake, therefore, to generalize from the antitrust context to the many other areas in which states enforce federal law. Scholars have begun to focus their attention on other specific instances of state enforcement outside the antitrust context. Amanda M. Rose, The Multienforcer Approach to Securities Fraud Deterrence: A Critical Analysis, 158 U. PA. L. REV. 2173 (2010) (critiquing state enforcement of state and federal securities law); Amy Widman, Advancing Federalism Concerns in Administrative Law Through a Revitalization of State Enforcement Powers-A Case Study of the Consumer Product Safety and Improvement Act of 2008, 29 YALE L. & POL'Y REV. 165 (2011) (praising state enforcement of CPSIA).
10. See infra notes 76-77 and accompanying text (noting authors' emphasis on state regulatory authority in federalism context). Amy Widman's study of state enforcement of the CPSIA is an important exception. See Widman, supra note 9, at 177-78 (identifying state enforcement of federal law as valuable form of 'uncooperative federalism' in areas where law is underenforced by federal agencies (quoting Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 YALE L.J. 1256, 1259 (2009))).
11. Some scholars have argued that the anti-commandeering doctrine-which prohibits the federal government from compelling states to participate in the implementation of federal law-should be abandoned if the alternative is preemption. See Neil S. Siegel, Commandeering and Its Alternatives: A Federalism Perspective, 59 VAND. L. REV. 1629, 1635 (2006) ('[C]ommandeering should be held constitutional as far as the Tenth Amendment is concerned when preemption constitutes a feasible alternative in the short run and such preemption would reduce state regulatory control relative to the commandeering at issue, the federal mandate is fully funded or relatively inexpensive to carry out, and the federal government takes effective measures to maintain lines of accountability ....').
12. Polinsky & Shavell, supra note 3, at 45.
13. For a sampling, see, for example, RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 631-46 (6th ed. 2003), STEVEN SHAVELL, FOUNDATIONS OF ECONOMIC ANALYSIS OF LAW 389-539 (2004).
14. Gary S. Becker & George J. Stigler, Law Enforcement, Malfeasance, and Compensation of Enforcers, 3 J. LEGAL STUD. 1 (1974).
15. William M. Landes & Richard A. Posner, The Private Enforcement of Law, 4 J. LEGAL STUD. 1 (1975).
16. A. Mitchell Polinsky, Private Versus Public Enforcement of Fines, 9 J. LEGAL STUD. 105 (1980),
17. Polinsky & Shavell, supra note 3, and Steven Shavell, The Fundamental Divergence Between the Private and the Social Motive To Use the Legal System, 26 J. LEGAL STUD. 575 (1997) [hereinafter Shavell, Fundamental Divergence].
18. See Shavell, Fundamental Divergence, supra note 13, at 581 ('[T]he social objective is simply minimization of the sum of social costs: the harm from injury to victims, plus the costs of precautions, plus the costs associated with use of the legal system-these comprising victims', injurers', and the state's legal costs.').
19. See Landes & Posner, supra note 13, at 39 ('The existence of a public monopoly of enforcement in a particular area of the law is a necessary ...condition of discretionary non-enforcement.').
20. See id. at 15 (emphasizing that 'public enforcer[s are] not constrained to act as ...private profit maximizer[s]').
21. The same is often true even when liability rules are carefully specified. Imagine a police chief who institutes a zero-tolerance policy toward all traffic infractions, so that every violation results in a ticket. Such a move is unlikely to be a career builder.
22. Richard B. Stewart & Cass R. Sunstein, Public Programs and Private Rights, 95 HARV. L. REV. 1193, 1214 (1982) ('Public enforcement is ...frequently inadequate because of budget constraints ....').
23. See, e.g., Kenneth W. Dam, Class Actions: Efficiency, Compensation, Deterrence, and Conflict of Interest, 4 J. LEGAL STUD. 47, 67 (1975) ('[W]hen the budget is determined by the political process, there is no reason to believe that the rate of enforcement would be economically optimal.');
24. Amanda M. Rose, Reforming Securities Litigation Reform: Restructuring the Relationship Between Public and Private Enforcement of Rule 10b-5, 108 COLUM. L. REV. 1301, 1341 (2008) (arguing that SEC 'is subject to political whims (particularly with respect to its budget)'); infra notes 83-84 and accompanying text (discussing political control of federal agencies).
25. See Polinsky & Shavell, supra note 3, at 73 ('[E]nforcement agents may be corrupted: they may accept bribes, or demand payments, in exchange for not reporting violations.'); see also Posner, supra note 13, at 633 (explaining that public enforcement may encourage corruption because enforcer gains less than offender pays, which incentivizes private transfer payments).
26. See, e.g., A.C. Pritchard, The SEC at 70: Time for Retirement?, 80 NOTRE DAME L. REV. 1073, 1089-92 (2005) (discussing problem of capture at SEC). For an overview of the capture literature, see Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 COLUM. L. REV. 1260, 1284-92 (2006).
27. Jonathan R. Macey & Geoffrey P. Miller, Reflections on Professional Responsibility in a Regulatory State, 63 GEO. WASH. L. REV. 1105, 1115-18 (1995) (discussing risk that government attorneys will act contrary to agency interests for purposes of 'careerbuilding');
28. Michael Selmi, Public vs. Private Enforcement of Civil Rights: The Case of Housing and Employment, 45 UCLA L. REV. 1401, 1404 (1998) ('[O]n average, the gov ernment seeks and obtains less monetary relief for plaintiffs than does the private bar and fails to address cutting edge issues, choosing instead to concentrate its efforts on small, routine [civil rights] cases.'); cf. Posner, supra note 13, at 637-38 (explaining that agencies will prefer to pursue cases that are 'relatively unimportant to the defendant' and therefore cheaper and easier to win).
29. Aron Harel & Alex Stein, Auctioning for Loyalty: Selection and Monitoring of Class Counsel, 22 YALE L. & POL'Y REV. 69, 106-07 (2004) (identifying predatory prosecution as potential risk of public enforcement).
30. See Pritchard, supra note 21, at 1076 (identifying 'cyclical pattern of neglect and hysterical overreaction that typifies ...regulation' in Congress and at SEC).
31. See William E. Kovacic, Private Monitoring and Antitrust Enforcement: Paying Informants To Reveal Cartels, 69 GEO. WASH. L. REV. 766, 781 (2001) ('Robust private participation, especially independent rights of action that eliminate a public prosecutorial monopoly, reduce or eliminate the ability of government enforcement officials to use prosecutorial discretion as a nonlegislative tool for altering the law.').
32. See generally Shavell, Fundamental Divergence, supra note 13 (arguing that level of litigation can be sub- or supra-optimal because private parties do not account for cost of legal fees to others nor external deterrence benefit from suits).
33. See Landes & Posner, supra note 13, at 15 (describing this so-called 'overenforcement theorem').
34. See Shavell, Fundamental Divergence, supra note 13, at 594 (acknowledging compensation as one goal of private enforcement, but arguing that social insurance system is more efficient mode of distribution).
35. See Landes & Posner, supra note 13, at 31-32 (explaining that in areas such as 'tort, contract, property, and commercial law,' private enforcement is less likely to overdeter because of high probability of apprehension for violators, and because penalties tend to equal harm caused by violations plus cost of enforcement).
36. See Becker & Stigler, supra note 13, at 13 (explaining that 'widespread reliance on victim enforcement' of public statutes works because private enforcers are motivated by promise of financial rewards).
37. See SHAVELL, supra note 13, at 578-79 ('Suppose that victims or potential victims of harm from dangerous acts, or perhaps other parties, can identify the violators with little or no effort. Then a private role in law enforcement is apparently desirable, for it is advantageous for society to harness this information that private parties have rather than to spend resources on public enforcement to uncover violations.').
38. Id. at 590-591.
39. Generally Pritchard, supra note 21 (comparing political accountability of independent agency with that of executive agency in context of SEC).
40. I express no view on states' authority to sue to vindicate constitutional interests in federal court absent statutory authorization. Cf. Pennsylvania v. Porter, 659 F.2d 306, 317 (3d Cir. 1981) (citing cases permitting states to bring parens patriae actions in federal court to enforce Fourteenth Amendment).
41. Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (emphasizing that Congress must make choice whether to create private right of action).
42. See, e.g., Hawaii v. Standard Oil Co., 405 U.S. 251, 263-64 (1972) (insisting on 'clear expression of a congressional purpose' before state may sue as parens patriae to 'recover damages for injury to its general economy' under Section 4 of Clayton Act); Connecticut v. Health Net, Inc., 383 F.3d 1258, 1262 (11th Cir. 2004) (emphasizing that states may sue as parens patriae to enforce federal law only if there is evidence that Congress 'intended that the states be able to bring actions in that capacity'); Connecticut v. Physicians Health Servs. of Conn., Inc., 287 F.3d 110, 120 (2d Cir. 2002) ('When determining whether a state has parens patriae standing under a federal statute, we ask if Congress intended to allow for such standing.').
43. See infra notes 40-55 (providing examples of such statutes).
44. See, e.g., Tafflin v. Levitt, 493 U.S. 455, 458-60 (1990) (noting that state courts are 'presumptively competent[ ] to adjudicate claims arising under the laws of the United States' and 'have concurrent jurisdiction where it is not excluded by express provision, or by incompatibility in its exercise arising from the nature of the particular case' (internal quotation marks omitted)).
45. See infra notes 41-54 (providing examples of such statutes).
46. See, e.g., 18 U.S.C. § 248(c)(3) (2006) (authorizing states to sue in federal court to enforce federal rules regarding access to abortion clinics).
47. 15 U.S.C. § 1194(a) (2006). The statute authorizes states to sue for injunctive relief, subject to the procedural requirements of 15 U.S.C. § 2073. Section 2073 provides that the attorney general or other authorized officer of a state may bring an action in federal court to obtain appropriate injunctive relief and must provide written notice to the Consumer Protect Safety Commission at least 30 days before the initiation of such an action. 15 U.S.C. § 2073(b)(2)(A) (Supp. II 2009). State enforcement is precluded if, at the time the suit is brought, the same alleged violation is the subject of a pending civil or criminal action by the United States. 15 U.S.C. § 2073(b)(5). The same limitations apply to private actions. Id. § 2073(a).
48. 15 U.S.C. § 1264(d) (2006) (incorporating procedural requirements of 15 U.S.C. § 2073).
49. 15 U.S.C. § 1477 (Supp. II 2009) (same).
50. 15 U.S.C. § 2073(b)(1) (same).
51. For an overview of parens patriae actions,
52. Richard P. Ieyoub & Theodore Eisenberg, State Attorney General Actions, the Tobacco Litigation, and the Doctrine of Parens Patriae, 74 TUL. L. REV. 1859, 1863-1871 (2000).
53. Jack Ratliff, Parens Patriae: An Overview, 74 TUL. L. REV. 1847 (2000).
54. 15 U.S.C. § 1679h(c)(1)-(4) (2006) (authorizing states to sue in any court for damages or injunctive relief; states must give prior notice to Federal Trade Commission (FTC) and cannot sue defendant for violation that is already subject of civil action by FTC).
55. 15 U.S.C. § 1681s(c)(1)-(4) (2006) (authorizing states to sue in any court for injunctive relief or actual or statutory damages; states must give prior notice to FTC 'or the appropriate Federal regulator' and cannot sue defendant for violation that is already subject of civil action by federal agency; FTC 'or appropriate Federal regulator' may intervene in any state action and will have right to be heard, to remove action to federal court, and to file petition for appeal).
56. 15 U.S.C. § 5712 (2006) (authorizing states to sue in federal court for damages or injunctive relief; states must give prior notice to FTC and cannot sue defendant for violation that is already subject of civil action by FTC).
57. 15 U.S.C. § 6103 (2006) (same); 47 U.S.C. § 227(f)(1)-(7) (2006) (authorizing states to sue in federal court to enjoin any 'pattern or practice' of unlawful telephone calls or other transmissions to residents of state, and/or to obtain actual or statutory damages for each violation, which may be trebled by court order; states must give prior notice to Federal Communications Commission (FCC) and cannot sue defendant for violation that is already subject of civil action by FCC).
58. 15 U.S.C. § 6309(c) (2006) (authorizing states to sue in federal court for injunctive relief, fines, or 'such other relief as the court may deem appropriate').
59. 15 U.S.C. § 7804 (2006) (authorizing states to sue in federal court for damages or injunctive relief; states must give prior notice to FTC and cannot sue defendant for violation that is already subject of civil action by FTC).
60. 15 U.S.C. § 6504(a)-(d) (2006) (authorizing states to sue in federal court for damages or injunctive relief; states must give prior notice to FTC and cannot sue defendant for violation that is already subject of civil action by FTC; FTC may intervene in any state action and will have right to be heard and to file petition for appeal).
61. 15 U.S.C. § 7706(f) (2006) (authorizing states to sue in federal court for injunctive relief or actual, statutory, or treble damages; states must give prior notice to FTC 'or the appropriate Federal regulator' and cannot sue defendant for a violation that is already subject of civil action by federal agency; FTC 'or appropriate Federal regulator' may intervene in any state action and will have right to be heard and to file petition for appeal).
62. 49 U.S.C. § 14711 (2006) (authorizing states to sue for injunctive relief in federal court; states must give prior notice to Surface Transportation Board or Secretary of Transportation, either of which may intervene in action and be heard on all matters and file petitions for appeal). Section 14711(b)(4) specifies that the Secretary of Transportation and/or the Surface Transportation Board 'shall be considered to have consented to any civil action of a State under this section if the Secretary or the Board has taken no action with respect to the notice within 60 calendar days after the date on which the Secretary or the Board received notice ....' The implication is that the federal enforcers have the authority to preclude a state enforcement proceeding, although nothing in the statute says so explicitly.
63. 15 U.S.C. § 15c (2006) (authorizing states to sue in federal court to secure treble damages for variety of violations on behalf of their citizens). States also have authority to enforce the federal Commodities Exchange Act, 7 U.S.C. § 13a-2 (2006), as well as federal statutes governing debt relief agencies, 11 U.S.C. § 526(c)(3) (2006), online drug sales, 21 U.S.C. § 882(c) (2008), the provision of health-related services, 42 U.S.C. § 1320d-5(d) (2009), energy-efficient products, 42 U.S.C. § 6304 (2009), and odometer tampering, 49 U.S.C. § 32709(d) (2009). States enforce the federal Securities Exchange Act in a shareholder capacity, usually on behalf of large state pension plans. See infra note 149 and accompanying text. The attorneys general of Oregon and Washington are authorized to sue in any court for an injunction or other order to prevent the unlawful use of certain scenic lands. 16 U.S.C. § 544m(b)(1)(B) (2006).
64. See, e.g., Endangered Species Act, 16 U.S.C. §§ 1532(13), 1540(g) (2006); Clean Water Act, 33 U.S.C. § 1365 (2006); Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. §§ 1402(e), 1415(g) (2006); Deepwater Port Act, 33 U.S.C. §§ 1502(15), 1515 (2006); Act to Prevent Pollution from Ships, 33 U.S.C. §§ 1901(a)(8), 1910 (2006); Safe Drinking Water Act, 42 U.S.C. §§ 300f(12), 300j-8 (2006); Noise Control Act, 42 U.S.C. §§ 4902(2), 4911 (2006); Energy Policy and Conservation Act, 42 U.S.C. §§ 6202(2), 6305 (2006); Resource Conservation and Recovery Act, 42 U.S.C. §§ 6903(15), 6972 (2006); Clean Air Act, 42 U.S.C. §§ 7602(e), 7604 (2006); Powerplant and Industrial Fuel Use Act, 42 U.S.C. §§ 8302(a)(2), 8435 (2006); Ocean Thermal Energy Conversion Act, 42 U.S.C. §§ 9102(14), 9124 (2006); Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601(21), 9659 (2006); Emergency Planning and Community Right To Know Act, 42 U.S.C. §§ 11046, 11049(7) (2006); Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1301(h), 1349(a) (2006).
65. By contrast, courts have rebuffed state efforts to sue under statutes that contain only a narrow private right of action. For example, courts have refused to permit state suits under the Employee Retirement Income Security Act (ERISA) on the ground that ERISA carefully lists the types of plaintiffs who can bring suit-participants, beneficiaries, or fiduciaries of ERISA-regulated plans-but does not mention states. See Connecticut v. Health Net, Inc., 383 F.3d 1258, 1261-62 (11th Cir. 2004) (denying state standing under ERISA); Connecticut v. Physicians Health Servs. of Conn., Inc., 287 F.3d 110, 120-21 (2d Cir. 2002) (same). Courts have taken a similar approach to statutes that create a cause of action for persons 'injured in [their] business or property.' E.g., Hawaii v. Standard Oil Co., 405 U.S. 251, 262-64 (1972) (insisting on 'clear expression of a congressional purpose' before state may sue as parens patriae to recover damages to its general economy under Section 4 of Clayton Act); Illinois v. Life of Mid-America Ins. Co., 805 F.2d 763, 766 (7th Cir. 1986) (holding that state lacks standing to enforce Racketeer Influenced and Corrupt Organizations (RICO) Act because, 'even if the complaint did sufficiently allege an injury to the state in its quasi-sovereign capacity, it is not clear ...that Congress, in enacting the RICO statute, intended to permit such a parens patriae proceeding'); California v. Frito- Lay, Inc., 474 F.2d 774, 777-78 (9th Cir. 1973) (holding that state may not sue on behalf of its citizens under Section 4 of Clayton Act because 'if the state is to be empowered to act in the fashion here sought ...that authority must come not through judicial improvisation but by legislation and rule making').
66. See, e.g., New York ex rel. Vacco v. Mid Hudson Med. Grp., P.C., 877 F. Supp. 143, 146-48 (S.D.N.Y. 1995) (interpreting 42 U.S.C. § 12117(a) (2006)).
67. See, e.g., Support Ministries for Persons with AIDS, Inc. v. Village of Waterford, 799 F. Supp. 272, 275-79 (N.D.N.Y. 1992) (interpreting 42 U.S.C. § 3613 (2006)).
68. See, e.g., EEOC v. Fed. Express Corp., 268 F. Supp. 2d 192, 196-99 (E.D.N.Y. 2003)
69. (interpreting 42 U.S.C. § 2000e-5 (2006)).
70. See, e.g., id. at 197 (citing Physicians Health Servs. of Conn., 287 F.3d at 121) ('[S]tanding provisions in many ...statutes implicitly authorize[ ] parens patriae standing by using language that permits any 'person' who is 'aggrieved' or 'injured' to bring suit.'); see also Massachusetts v. Bull HN Info. Sys., Inc., 16 F. Supp. 2d 90, 103 (D. Mass. 1998) (reasoning that state attorney general has statutory standing to sue under Age Discrimination in Employment Act as ''legal representative' of the people of the [state] for purposes of this action' (quoting 29 U.S.C. § 630(a) (2006))); Minnesota v. Standard Oil Co., 568 F. Supp. 556, 563-66 (D. Minn. 1983) (permitting state to sue as parens patriae under Section 210 of Economic Stabilization Act of 1970, which permitted suit by any 'person,' because 'when a state acts in its quasi-sovereign capacity in a parens patriae action, ...[a] harm to the individual citizens becomes an injury to the state, and the state in turn becomes the plaintiff'). Other courts have ignored the question of congressional intent, focusing instead on the prudential requirements for parens patriae standing-that is, that the state assert a 'quasi-sovereign interest' and allege an injury to a 'sufficiently substantial segment of its population.' Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982); see also New York ex rel. Abrams v. 11 Cornwell Co., 695 F.2d 34, 38-40 (2d Cir. 1982) (permitting state to sue to enforce federal conspiracy statute); Support Ministries, 799 F. Supp. at 275-79 (permitting state to sue under Fair Housing Act); New York v. Peter & John's Pump House, Inc., 914 F. Supp. 809, 811-14 (N.D.N.Y. 1985) (holding that state may sue as parens patriae to enforce Title II of Civil Rights Act of 1964). That approach fails to distinguish between the question of parens patriae standing and the question of statutory standing. See Health Net, Inc., 383 F.3d at 1262 (distinguishing between two types of standing); see also Hawaii v. Standard Oil, 405 U.S. at 259 ('The question in this case is not whether Hawaii may maintain its lawsuit on behalf of its citizens, but rather whether the injury for which it seeks to recover is compensable under § 4 of the Clayton Act.'); New York ex rel. Abrams v. Seneci, 817 F.2d 1015, 1017 (2d Cir. 1987) (reasoning that, if state had asserted 'injury to a quasi-sovereign interest of the state itself[,] ...common law parens patriae standing would undoubtedly exist. We would then be called on to decide whether the RICO statute authorized recovery for that harm' (internal citations omitted)).
71. Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons from History, 38 AM. U. L. REV. 275, 303-309 (1988) (discussing early state enforcement of federal criminal law).
72. Cornell W. Clayton, Law, Politics, and the New Federalism: State Attorneys General as National Policymakers, 56 REV. POL. 525, 538 (1994) ("During the 1980s the rate of growth in the budget of the attorney general's office or state department of law outpaced increases in general government spending in every single state, in some states many times over.");
73. Andrew I. Gavil, Reconstructing the Jurisdictional Foundation of Antitrust Federalism, 61 GEO. WASH. L. REV. 657, 661-662 (1993) (suggesting that increased level of state enforcement activity in antitrust and consumer protection areas was in part response to perceived inadequacy of federal enforcement).
74. During the George H.W. Bush administration, executive officials expressed concern with the constitutionality of direct state enforcement provisions. See S. 471, The 900 Services Consumer Protection Act of 1991, and S. 1166, the Telephone Consumer Assistance Act: Hearing before the Subcomm. on Commc'ns of the S. Comm. on Commerce, Sci., and Transp., 102d Cong. 16 (1991) (statement of Barry Cutler, Director, Bureau of Consumer Protection, Federal Trade Commission) ('[D]irect state enforcement provisions may be unconstitutional because they involve the exercise of significant authority pursuant to the laws of the United States by persons not selected in accordance with the Appointments Clause.'); see also Statement on Signing the Consumer Product Safety Improvement Act of 1990, 2 PUB. PAPERS 1613 (Nov. 16, 1990) (raising concern that state attorneys general may lack Article III standing when enforcing Federal Hazardous Substances Act and Flammable Fabrics Act). Subsequent administrations appear to have abandoned the complaint. For an analysis of the constitutional issues raised when states perform functions within the province of the federal executive branch, see generally Evan Caminker, The Unitary Executive and State Administration of Federal Law, 45 U. KAN. L. REV. 1075 (1997) (analyzing state administration of federal law under unitary executive theory). For an argument that the enforcement of federal criminal law by state prosecutors may violate the Appointments and Take Care Clauses of Article II of the Constitution.
75. Michael G. Collins & Jonathan Remy Nash, Prosecuting Federal Crimes in State Courts 55-63 (Oct. 24, 2010) (unpublished manuscript) (on file with author), available at http://ssrn.com/abstract=1696076.
76. See, e.g., Susan Beth Farmer, More Lessons from the Laboratories: Cy Pres Distributions in Parens Patriae Antitrust Actions Brought by State Attorneys General, 68 FORDHAM L. REV. 361, 377 (1999) ('The legislative history of the [Hart-Scott-Rodino] Act demonstrates that Congress sought to achieve three goals: (1) compensation of victims of antitrust violations; (2) disgorgement of profits by the offenders; and (3) deterrence of future anticompetitive actions.'); see also Comprehensive Children's Product Safety Commission Reform Legislation: Hearing on H.R. 4040 Before the Subcomm. on Commerce, Trade, and Consumer Prot. of the H. Comm. on Energy and Commerce, 110th Cong. 94 (2007) (testimony of Rachel Weintraub, Director, Product Safety and Senior Counsel, Consumer Federation of America) (arguing that state authority to enforce federal consumer products safety law 'will be a critical tool that will help buttress the [Consumer Product Safety Commission's] limited enforcement capabilities, help consumers to obtain redress for harms they have suffered, and deter wrongful conduct').
77. 149 CONG. REC. 25,522 (2003) (statement of Sen. John McCain) (regarding CANSPAM Act of 2003).
78. 153 CONG. REC. H16,882 (daily ed. Dec. 19, 2007) (statement of Rep. Rosa DeLauro) (regarding state enforcement under CPSIA); see also Consumer Product Safety Commission Reauthorization: Hearing Before the Subcomm. on Commerce, Consumer Prot., and Competitiveness of the H. Comm. on Energy and Commerce, 101st Cong. 65 (1989) (statement of Dr. Mark Widome, Professor of Pediatrics, Pennsylvania State University, College of Medicine) (arguing that state enforcement of Flammable Fabrics Act 'would build a needed redundancy and failsafe provision into the [Consumer Products Safety] Commission and help assure that some of these products get off the market'); Consumer Product Safety Commission Reauthorization (Part 2): Hearing on H.R. 3343 and H.R. 3443 Before the Subcomm. on Commerce, Consumer Prot., and Competitiveness of the H. Comm. on Energy and Commerce, 100th Cong. 236 (1987) (statement of U.S. Public Research Interest Group) (regarding CPSIA, arguing that state enforcement 'would multiply by fifty the number of officials available to help ensure the safety of products that are distributed throughout the country'); 153 CONG. REC. S15,990 (daily ed. Dec. 19, 2007) (statement of Sen. Mark Pryor) (arguing that CPSIA 'ensures that [state attorneys general] can act as real cops on the beat, looking out for consumers and restoring confidence in the marketplace'); 149 CONG. REC. 25,526 (2003) (statement of Sen. Ron Wyden) ('What is going to be important is for those who are charged with enforcement-the Federal Trade Commission, the criminal authorities, ...the State attorneys general, the Internet service providers-to bring a handful of actions very quickly to establish ...a real deterrent ....'); id. at 25,548 (statement of Sen. Maria Cantwell) ('By allowing enforcement by State attorneys general and by Internet service providers, we have increased the odds of successful enforcement against the worst spammers.'); 137 CONG. REC. 30,822 (1991) (statement of Sen. Ernest Hollings) (regarding common carrier regulation, describing state enforcement as response to uncertainty about '[t]he will of the FCC to enforce the bill rigorously').
79. See, e.g., 154 CONG. REC. S7872 (daily ed. July 31, 2008) (statement of Sen. Tom Coburn) (arguing that state and private enforcement of CPSIA 'provides false incentives for overzealous attorneys general and would run precisely counter to the CPSC's policy of carefully balancing cost and benefit in making safety regulations'); 140 CONG. REC. 10,173 (1994) (statement of Sen. Orrin Hatch) ('Because [the Freedom of Access to Clinic Entrances Act] delegates an astonishing amount of what is in essence prosecutorial authority to State attorneys general and to private parties ...and because it offers them the bonanza of substantial monetary penalties, it is a virtual certainty that innocent persons ...will be targeted and pursued.'); see also infra notes 248-50 and accompanying text (discussing opposition to state enforcement of federal law due to lack of uniformity).
80. Telemarketing Fraud and Consumer Abuse: Hearing Before the Subcomm. On Transp. and Hazardous Materials of the H. Comm. on Energy and Commerce, 102d Cong. 51 (1991) (statement of Bonnie J. Campbell, Att'y Gen. of Iowa and Vice-Chair, Consumer Protection Committee, NAAG); see also id. at 53 (resolution of NAAG) ('[U]nder current law, the sole means of effectively stopping a multistate fraud is for each attorney general to file separate, and identical actions; and ...the ability of the attorneys general to proceed against telemarketing fraud in a Federal court would eliminate the need for wasteful duplication of State resources ....'); 149 CONG. REC. 25,546 (2003) (statement of Sen. Patrick Leahy) ('Some 30 States now have antispam laws, but the globe-hopping nature of e-mail makes these laws difficult to enforce.'); id. at 25,526 (statement of Sen. Ron Wyden) ('I believe a State-by-State approach cannot work in this area.'); 139 CONG. REC. 3907 (1993) (statement of Rep. Allan Swift) ('State and local enforcement agencies ...have initiated actions against fraudulent telemarketers only to be frustrated by state law jurisdictional limits. [Fraudulent telemarketers] locate their operations outside the states in which their victims are located or move frequently to avoid detection and prosecution under state law.').
81. See, e.g., Mail Fraud: Hearing Before the Subcomm. on Postal Operations and Servs. of the H. Comm. on Post Office and Civil Serv., 103rd Cong. 163 (1993) (statement of NAAG) (bemoaning 'artificial constraints of jurisdictional boundaries'); 139 CONG. REC. 3910 (1993) (statement of Rep. Carlos Moorhead) (regarding Consumer Protection Telemarketing Act, 'Thousands of Californians have been victimized by ...operations ...beyond the reach of our State authorities. I am therefore pleased that a major theme of this bill is a broad-based partnership of the Federal Trade Commission with State attorneys general to attack telemarketing scams wherever they may be based.').
82. For examples of statutes that permit state enforcement of federal law while preempting state law, see 7 U.S.C. § 16(e) (2006) (preempting some state law governing commodities), 11 U.S.C. § 526(d) (2006) (preempting inconsistent state law regarding debt relief agencies), 15 U.S.C. § 1681t (2006) (preempting inconsistent state law regarding credit transactions), 15 U.S.C. § 5722(a) (2006) (preempting inconsistent state law governing pay-per-call services), 15 U.S.C. § 6502(d) (2006) (preempting inconsistent state law regarding children's online privacy protection), 15 U.S.C. § 7707(b) (2006) (preempting most state law regulating spam), and 49 U.S.C. § 32711 (2006) (preempting inconsistent state law regarding odometer tampering).
83. See, e.g., 149 CONG. REC. 25,546 (2003) (statement of Sen. Patrick Leahy) (regarding CAN-SPAM Act, noting that only thirty states have antispam laws of their own); 149 CONG. REC. 13,748 (2003) (statement of Rep. Cliff Stearns) (describing provision for state enforcement of Sports Agents Responsibility and Trust Act (SPARTA) and noting its benefits for those states without any similar laws); 149 CONG. REC. 10,294 (2003) (statement of Rep. Thomas Osborne) (discussing SPARTA and noting that it would provide uniform standard, as many states did not have laws regulating sports agents); 140 CONG. REC. 17,842 (1994) (statement of Rep. John LaFalce) (noting that telemarketing fraud regulation would authorize state attorneys general in those states without similar regulations to bring actions in federal courts).
84. 42 U.S.C. § 7410 (2006). State implementation plans must be approved by the EPA. Id. § 7410(a)(3), (k).
85. See John Dwyer, The Practice of Federalism Under the Clean Air Act, 54 MD. L. REV. 1183, 1198 (1995) ('The authority to allocate emissions to industry gives states an opportunity to pay a significant political role in controlling air pollution and making related decisions about land use and economic development-an opportunity that the vast majority of states have taken.').
86. See David R. Hodas, Enforcement of Environmental Law in a Triangular Federal System: Can Three Not Be a Crowd When Enforcement is Shared by the United States, the States, and Their Citizens?, 54 MD. L. REV. 1552, 1571 (1995) ('[E]ssentially all the modern major environmental laws provide uniform, minimum national standards with the states 'deputized,' to a greater or lesser degree, to do the permitting and enforcing for the federal government.').
87. See Gillian E. Metzger, Administrative Law as the New Federalism, 57 DUKE L.J. 2023, 2038 n.54 (2007) ('[T]he [Clean Air Act] embodies a cooperative regulatory framework under which states bear responsibility in the first instance for devising plans to ensure that air pollutant emissions within their borders meet federal air quality standards.'). For overviews of and citations to the cooperative federalism literature, see generally Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 YALE L.J. 1256, 1262-63 & nn.14-16 (2009), and Roderick M. Hills, The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and 'Dual Sovereignty' Doesn't, 96 MICH. L. REV. 813, 815 & nn.1-2 (1998).
88. See Metzger, supra note 76, at 2026 n.4 ('[F]ederalism refer[s] primarily to protecting the ability of the states to exercise meaningful regulatory power in their own right.'); Neil S. Siegel, International Delegations and the Values of Federalism, LAW & CONTEMP. PROBS., Winter 2008, at 93, 94 n.7 (defining 'federalism' as 'a constitutional regime that aims to vindicate certain values ...by affording significant protection to the regulatory autonomy of subnational states'); cf. Bulman-Pozen & Gerken, supra note 76, at 1259 (discussing instances of 'uncooperative federalism,' where 'states use regulatory power conferred by the federal government to tweak, challenge, and even dissent from federal law'). The emphasis on regulation is also evident in the vast and ever-growing literature on preemption. For a small sampling, see generally William W. Buzbee, Asymmetrical Regulation: Risk, Preemption, and the Floor/Ceiling Distinction, 82 N.Y.U. L. REV. 1547, 1555-56 (2007) (arguing that federal floor preemption risks less regulatory failure than unitary federal choice preemption, which precludes state and local protections and eliminates institutional diversity), Brian Galle & Mark Seidenfeld, Administrative Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power, 57 DUKE L.J. 1933, 1937-39 (2008) (offering realist view of federal agency preemption that favors agency regulation over Congressional action), Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. REV. 1, 4 (2007) (arguing for presumption against federal preemption of state regulation), Nina A. Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737, 742 (2004) (arguing against Chevron deference when agencies preempt state law), and Catherine M. Sharkey, Federalism Accountability: 'Agency-Forcing' Measures, 58 DUKE L.J. 2125, 2129 (2009) (proposing reforms to increase state participation in agency preemption decision making).
89. Federal criminal enforcement may be somewhat less centralized because of the discretion vested in the ninety-three U.S. Attorneys' Offices. See Daniel C. Richman, Federal Criminal Law, Congressional Delegation, and Enforcement Discretion, 46 UCLA L. REV. 757, 781 (1999) (explaining how 'federal prosecutorial authority is ...famously fragmented'). But cf. Rachel E. Barkow, Federalism and Criminal Law: What the Feds Can Learn from the States, 109 MICH. L. REV. 519, 525 (2011) (discussing efforts to give Main Justice more centralized authority over federal criminal enforcement).
90. Margaret H. Lemos, The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine, 81 S. CAL. L. REV. 405, 448-449 (2008) (discussing various means of political control of agencies);
91. B. Dan Wood & Richard W. Waterman, The Dynamics of Political Control of the Bureaucracy, 85 AM. POL. SCI. REV. 801, 822 (1991) (finding that "[t]he leadership of an agency is the most frequent mechanism for changing agency behavior").
92. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. 2314, 2326 (2006) ("[A] strong President can stymie two agencies almost as easily as he can stymie one.").
93. Peter H. Schuck, Delegation and Democracy: Comments on David Schoenbrod, 20 CARDOZO L. REV. 775, 785 (1999) ("While the nature, quality, and intensity of legislative oversight vary from committee to committee, it is often used to signal congressional preferences on agency policy issues and to extract policy commitments from agency officials.").
94. Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452, 509 (1989) ("Agency action can be publicly castigated on the House or Senate floor, and members of Congress or their staffs can importune agency decision makers.").
95. Haoran Lu, Presidential Influence on Independent Commissions: A Case of FTC Staffing Levels, 28 PRESIDENTIAL STUD. Q. 51, 61 (1998) (showing that "presidents do use budget, specifically staff level, to influence independent agencies");
96. Terry M. Moe, Regulatory Performance and Presidential Administration, 26 AM. J. POL. SCI. 197, 201 (1982) (discussing presidential influence over budgets through executive Office of Management and Budget);
97. Schuck, supra note 81, at 785 ('The appropriations process sharply constrains the authority and discretion of agencies.').
98. See MICHAEL E. MILAKOVICH & GEORGE J. GORDON, PUBLIC ADMINISTRATION IN AMERICA 373 (10th ed. 2009) ('Ronald Reagan, from the very start of his presidency, used a comprehensive assault on the national government budget as the key to his attempt to reshape the national bureaucracy. Reagan demonstrated convincingly that the most direct way (if not always the easiest politically) to control an agency is to cut-or increase-its budget ....'); Hugh Davis Graham, The Politics of Clientele Capture: Civil Rights Policy and the Reagan Administration, in REDEFINING EQUALITY 103, 106 (Neal Devins & Davison M. Douglas eds., 1998) (noting that Reagan administration 'slowed regulatory activity by cutting the agency budgets'). Studies show that public enforcement by federal agencies changes with shifts in presidential and congressional politics. See, e.g., Moe, supra note 83, at 197-98 (finding variation in enforcement efforts of National Labor Relations Board, Federal Trade Commission, and Securities and Exchange Commission based on presidential administration in office); Selmi, supra note 22, at 1440-41 ('Since the passage of the Civil Rights Acts in the 1960s, each shift in political party has brought significant change in civil rights enforcement.'); Wood & Waterman, supra note 79, at 823 (finding significant executive influence on behavior of seven agencies, especially those situated within executive departments).
99. The number of non-federal enforcers typically exceeds fifty, as it may include the District of Columbia as well as the Commonwealths of Puerto Rico and the Northern Marina Islands, and the territories of American Samoa, Guam, and the Virgin Islands. See About NAAG, Nat'l Ass'n Att'ys Gen., http://www.naag.org/about_naag.php (last visited Apr. 20, 2011). For the sake of simplicity, this Article will focus on enforcement by the fifty states.
100. See infra notes 248-50 and accompanying text (discussing complaints by legislators and lobbyists that state enforcement will produce disuniformity in federal law).
101. See, e.g., 15 U.S.C. § 2073(b) (2006 & Supp. III 2010) (prescribing procedures for state enforcement of federal rules governing consumer products, including notice requirement and federal agency's right of intervention); 15 U.S.C. § 1264(d) (2006) (same, for state enforcement of federal rules governing hazardous substances); 15 U.S.C. § 1194(a) (2006) (providing for state enforcement of federal rules governing flammable fabrics and incorporating procedural requirements of § 2073).
102. See Rose, supra note 9, at 2205 (explaining that when voluntary cooperation breaks down, 'the enforcer concerned about underdeterrence will always stand in a position to thwart the efforts of the enforcer who is concerned about overdeterrence, leading to a potentially ill-advised ratcheting up of enforcement intensity'); Widman, supra note 9, at 179 (explaining that state-enforcement provisions 'allow[ ] states to enforce [federal] regulations when the agency does not').
103. See STEPHEN D. HOUCK, NAT'L ASS'N OF ATT'YS GEN., TRANSITION REPORT: THE STATE OF STATE ANTITRUST ENFORCEMENT 2-4 (Oct. 7, 2009), http://www.naag.org/transition-report-the-state-of-state-antitrust-enforcement.php (discussing state-federal cooperation-and lack thereof-under Reagan, Bush I, Clinton, and Bush II administrations).
104. See, e.g., Calkins, supra note 9, at 734 ('State perception of a lack of federal will is the most common stimulus to expansive state activity.'); Ralph H. Folsom, State Antitrust Remedies: Lessons from the Laboratories, 35 ANTITRUST BULL. 941, 954 (1990) ('The state attorneys general committed themselves to 'filling the gap' created by Reagan administration antitrust policies by increasing their state antitrust prosecutions.'); Dru Stevenson, Special Solicitude for State Standing: Massachusetts v. EPA, 112 PENN. ST. L. REV. 1, 39-40 (2007) ('[O]ne manifestation of a presidential policy of deregulation is agency inaction on the enforcement and rulemaking fronts. Ironically, the unintended consequence of this policy is an increase in litigation activity by the state AG's in the very same area, which can prove just as daunting to the regulated industry as routine oversight by a federal agency.'); Brooke A. Masters, States Flex Prosecutorial Muscle, WASH. POST, Jan. 12, 2005, at A1 ('[S]tate regulators and attorneys general are bringing legal action and launching investigations in ...areas where they say federal regulators have fallen down on the job. 'Our action is the result of federal inaction,' said Connecticut Attorney General Richard Blumenthal, who has brought actions against drug companies, polluters, and the Environmental Protection Agency.'); PETER J. BRANN, COLUMBIA LAW SCH. STATE ATT'Y GEN. PROJECT, STATE ATTORNEYS GENERAL CONSUMER PROTECTION UNDER A NEW ADMINISTRATION: NEW OPPORTUNITIES AND NEW CHALLENGES 8 (2008), http://www.law.columbia.edu/null?&exclusive=filemgr.download&file_id=55833&rtcontentdispositi ('As the [George W.] Bush Administration cut back on consumer protection efforts, the States have rushed in to fill the void.').
105. Although the NAAG has adopted more than 100 policy positions in an effort to 'promote uniformity in specific areas of law[,] ...NAAG stresses that '[t]he autonomy of each Attorney General is carefully protected ....'' Joseph F. Zimmerman, Interstate Cooperation: The Roles of the State Attorneys General, 28 PUBLIUS 71, 75 (1998) (quoting NAT'L ASS'N OF ATTORNEYS GEN., POLICY POSITIONS 7 (1993)).
106. See generally Jason Lynch, Note, Federalism, Separation of Powers, and the Role of State Attorneys General in Multistate Litigation, 101 COLUM. L. REV. 1998 (2001) (discussing multistate actions).
107. See Rose, supra note 9, at 2205 ('[V]oluntary coordination can break down if disagreements arise over the best enforcement approach. This is a realistic probability, even amongst well-incentivized enforcers, given the significant empirical uncertainty that will exist regarding the relative level of under- and overdeterrence costs.'); cf. HOUCK, supra note 89, at 17 ('The main concern expressed by state [assistant attorneys general working in the antitrust area] relates to the perceived decline in the effectiveness of multistate working groups. There is a general perception that the multistate working groups are not run as effectively or efficiently as they should be, and have been historically.'); Judith Resnik et al., Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAs), 50 ARIZ. L. REV. 709, 753 (2008) (discussing disputes within NAAG and formation of subgroup called Republican Attorneys General Association, which has taken positions different from those of NAAG on several issues).
108. Roundtable Conference with Enforcement Officials, 73 ANTITRUST L.J. 269, 296 (2005) (statement of Patricia Connors, Chair of NAAG's Multistate Antitrust Task Force); see also ANTITRUST MODERNIZATION COMM'N, SUPPLEMENTAL PUBLIC COMMENT SUBMITTED BY THE ATTORNEYS GENERAL OF HAWAII, MAINE, AND OREGON ON STATE MERGER ENFORCEMENT 6 (2006), http://govinfo.library.unt.edu/amc/public_studies_fr28902/enforcement_pdf/060723_suppl_state_merger_com.pdf (explaining that state merger enforcement tends to focus on local industries, including 'health care, retail gasoline, solid waste, supermarkets, movie theaters, banking, retail pharmacy, funeral homes, department stores, and asphalt'); Michael DeBow, State Antitrust Enforcement: Empirical Evidence and a Modest Reform Proposal, in COMPETITION LAWS IN CONFLICT: ANTITRUST JURISDICTION IN THE GLOBAL ECONOMY 267, 274 (Richard A. Epstein & Michael S. Greve eds., 2004) (discussing 'quaint, Norman Rockwell-like quality' of state antitrust enforcement). 95 See Calkins, supra note 9, at 680 ('State attorneys general have a clear comparative advantage in understanding local markets.').
109. 154 CONG. REC. S7877 (daily ed. July 31, 2008) (statement of Sen. Kay Hutchinson) (regarding CPSIA).
110. See supra note 8 (noting few states where this is not the case).
111. See Clayton, supra note 63, at 538 ('[T]he accumulation of highly visible functions made the office [of attorney general] increasingly attractive to a younger, better educated, and more ambitious caliber of attorney. The new breed of attorneys general have included [those] who used the office to project themselves into national politics.').
112. Marshall, supra note 8, at 2453 ('[T]he Office of the Attorney General has long been seen by many of its occupants as a stepping stone to the Governor's office ....'); accord Colin L. Provost, State Attorneys General, Entrepreneurship, and Consumer Protection in the New Federalism, 33 PUBLIUS 37, 40 (2003) ('[O]f the 166 attorneys general who served at least two years between 1980 and 1999, more than 70 ran for a governorship or a U.S. Senate seat. Another 20 ran for or were appointed to a lower court seat, a federal agency post, or another position in state government.').
113. See, e.g., Posner, supra note 9, at 257-60 (arguing that state attorneys general are focused primarily on promoting their political careers and proposing that attorneys general be appointed rather than elected).
114. Masters, supra note 90.
115. To be sure, some cases will have a clear political valence. But every case has two sides, and state politics can be unpredictable. I am grateful to Jim Tierney for emphasizing this point to me. First, supra note 9, at 1036.
116. See Provost, supra note 99, at 38 ('Because they are elected in most states ...and because the office often serves as a springboard into higher political positions, state attorneys general have strong incentives to build up their record of political accomplishments by helping consumers and pursuing high levels of enforcement.'); Eric N. Waltenburg & Bill Swinford, The Supreme Court as a Policy Arena: The Strategies and Tactics of State Attorneys General, 27 POL'Y STUD. J. 242, 248 (1999) (describing state attorneys general as 'politically savvy individuals who recognize the policy 'hay' that can be made by litigation actions').
117. Provost, supra note 99, at 53. The incentives for aggressive, entrepreneurial enforcement likely are amplified for attorneys general with ambitions to higher office. Scholars have found links between ambition to higher office and risk taking and innovation by politicians. See Rebekah Herrick & Michael K. Moore, Political Ambition's Effect on Legislative Behavior: Schlesinger's Typology Revisited and Revised, 55 J. POL. 765, 771 tbl.1 (1993) (finding that House members with aspirations to Senate introduced more legislation, made more speeches, and had larger staffs than those who aspired to leadership positions within House); Provost, supra note 99, at 43 (arguing that attorneys general 'with progressive ambition are more likely to prosecute businesses to gain the attention of consumers and voters'); David W. Rohde, Risk-Bearing and Progressive Ambition: The Case of Members of the United States House of Representatives, 23 AM. J. POL. SCI. 1, 16 tbl.1 (1979) (demonstrating relationship between risk taking by House members and senatorial ambitions); see also Hills, supra note 77, at 24 ('It is not smart politics to play it safe against an incumbent who, almost by definition, will have greater name recognition and nonideological goodwill ....').
118. See Selmi, supra note 22, at 1442 (noting one of several reasons attorneys choose to work for government organizations is to obtain litigation experience marketable to private employers).
119. Macey & Miller, supra note 22, at 1117.
120. See POSNER, supra note 13, at 644 ('[L]awyers employed by an administrative agency may prefer to bring small cases because that will enable them to get trial experience during their brief tenure whereas a large case might not come to trial until after they had left ....').
121. See Steven P. Croley, Public Interested Regulation, 28 FLA. ST. U. L. REV. 7, 29 (2000) ('[A]dministrators self-select into an employment pool consisting of individuals who share some kind of ideological commitment to a given agency's mission .... Over time, ...those who remain with an agency are those who tend to believe in its mission and who reap personal satisfaction from a sense that public service truly serves the public.').
122. See Selmi, supra note 22, at 1444 ('For individuals who are interested in a government career, they need to take into account which cases are most likely to advance their careers.... [T]his often means avoiding controversy and adopting a policy of choosing safe cases to which the government would not likely object or about which the government is unlikely to come under political scrutiny or pressure.').
123. Croley, supra note 109, at 30.
124. See supra notes 63, 84, and 90 and accompanying text (discussing decline in federal agency enforcement under Reagan and second Bush administrations).
125. Hills, supra note 77, at 15.
126. Id. at 21.
127. See Provost, supra note 99 (studying entrepreneurial behavior by state attorneys general); cf. Allocation of Antitrust Enforcement Between the States and the Federal Government: Hearing Before the Antitrust Modernization Comm'n, at 14 (Oct. 26, 2005) (Statement of Harry First, Professor of Law, New York University School of Law), available at govinfo.library.unt.edu/amc/commission_hearings/pdf/Statement-First.pdf [hereinafter First, Statement] (comparing state enforcers to 'maverick firms' that 'pursue divergent comprebusiness strategies as a way of differentiating their offerings from those of more dominant firms with larger market shares').
128. William B. Rubenstein, On What a 'Private Attorney General' Is-And Why It Matters, 57 VAND. L. REV. 2129, 2133 (2004) ('What puts the 'general' in 'attorney general' is not strength but scope: 'general' defines the ambit of the 'power of attorney' given to the lawyer in question, distinguishing ...lawyers with general powers of attorney from those with particular or specific appointments.').
129. Provost, supra note 99, at 40 (discussing New York's 1921 Martin Act).
130. James Traub, The Attorney General Goes to War, N.Y. TIMES MAG., June 16, 2002, at 38, 41.
131. Adi Ignatius, Wall Street's Top Cop, TIME, Dec. 30, 2002, at 64, 71(internal quotation marks omitted).
132. Traub, supra note 118, at 38 (internal quotation marks omitted).
133. Id.
134. Id. at 38-40.
135. Ignatius, supra note 119, at 71 (explaining that '[t]he SEC jumped in' after Spitzer's $ 100 million settlement with Merrill, and participated with states in going after 12 other investment banks).
136. Id.
137. Eric W. Zitzewitz, Prosecutorial Discretion in Mutual Fund Settlement Negotiations, 2003-7, 9 BERKELEY ELEC. J. ECON. ANALYSIS & POL'Y, no. 1, art. 24, 2009 at 1, available at http://www.bepress.com/bejeap/vol9/iss1/art24/ (last visited Apr. 20, 2011).
138. Id. at 33.
139. Id. at 3.
140. Id. at 34.
141. Id. at 35;
142. Rachel E. Barkow, The Prosecutor as Regulatory Agency, in PROSECUTORS IN THE BOARDROOM: USING CRIMINAL LAW TO REGULATE CORPORATE CONDUCT 27 (Anthony S. Barkow & Rachel E. Barkow eds., 2011) (attributing SEC inaction to capture).
143. See, e.g., William J. Holstein & Edward M. Kopko, Spitzer's Climate of Fear, WALL ST. J., Nov. 23, 2004, at B2 ('Rather than engaging in careful formulation of policy, Mr. Spitzer seems to be building his political career by collecting trophies.'); Ignatius, supra note 119, at 70 ('The rap on Spitzer is that he's ambitious, that he has his eye on a bigger prize. To his (off-the-record) critics on Wall Street, his pursuit of investment banks smacks of opportunism and grandstanding, of a public official out of control.'); John J. McConnell, Spitzer's Big Lie, WALL ST. J., May 15, 2002, at A18 (suggesting that Spitzer aggressively pursued flimsy case against Merrill in order to 'further his own career').
144. For a detailed analysis of the states' legal theory in the tobacco litigation.
145. Hanoch Dagan & James J. White, Governments, Citizens, and Injurious Industries, 75 N.Y.U. L. REV. 354, 382-405 (2000).
146. Donald G. Gifford, Impersonating the Legislature: State Attorneys General and Parens Patriae Product Litigation, 49 B.C. L. REV. 913, 925-929 (2008) (discussing Rhode Island litigation against lead paint manufacturers).
147. Stephen Paul Mahinka & Kathleen M. Sanzo, Multistate Antitrust and Consumer Protection Investigations: Practical Concerns, 63 ANTITRUST L.J. 213, 221-223 (1994) (discussing states' controversial campaign against common marketing and compensation systems for prescription drugs).
148. Robert A. Schapiro, Not Old or Borrowed: The Truly New Blue Federalism, 3 HARV. L. & POL'Y REV. 33, 42-43 (2009) (describing attorneys general campaign against lending industry, which "served to prod federal efforts" in same field).
149. see also Examining Unethical Practices in the Student Loan Industry: Hearing Before the H. Comm. on Educ. and Labor, 110th Cong. 14 (2007) (statement of Andrew M. Cuomo, Att'y Gen., New York) ('Part of the reason the practices we have uncovered have been able to flourish nationwide over the past several years is because the U.S. Department of Education has been asleep at the switch.').
150. William H. Pryor, Jr., A Comparison of Abuses and Reforms of Class Actions and Multigovernment Lawsuits, 74 TUL. L. REV. 1885, 1902-1903, 1908-1909, 1915-1916 (1999) (critiquing state-led litigation against gun manufacturers).
151. See Press Release, Columbia Law Sch., Expert Says Foreclosure Problems Should Serve as Wake-Up Call for Banks To Cooperate with States (Oct. 13, 2010), available at http://www.law.columbia. edu / media _ inquiries / news _ events / 2010 / October2010/foreclosures-tierney (describing state-led investigation into practices of mortgage-servicing industry).
152. Folsom, supra note 90, at 953-954;
153. Mahinka & Sanzo, supra note 133, at 216-17 (noting that while enforcement against resale price maintenance was 'virtually nonexistent at the federal level[,] ...state attorneys general have devoted considerable resources to this issue and have initiated a number of high-profile enforcement initiatives').
154. Folsom, supra note 90, at 954 (internal quotation marks omitted). State and federal enforcers took different positions in a recent Supreme Court case concerning one form of vertical restraint, resale price maintenance. Compare Brief for State of New York et al. as Amici Curiae Supporting Respondent at 1, Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007) (No. 06-480) ('The States have a particular interest in preserving the per se prohibition against the price-fixing practice challenged here-minimum resale price maintenance ('minimum RPM'). The States vigorously prosecute cases involving minimum RPM agreements.'), with Brief for United States as Amicus Curiae Supporting Petitioner at 3, Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007) (No. 06-480) ('The per se rule against vertical minimum resale price maintenance (RPM) established in Dr. Miles is irreconcilable with this Court's modern antitrust jurisprudence and cannot withstand analysis. That per se rule should be abandoned, and Dr. Miles should be overruled.').
155. See, e.g., Our Office, ATT'Y GEN. OF NEW YORK, http://www.ag.ny.gov/our_office.html (last visited Apr. 20, 2011) (listing specialized bureaus).
156. Some independent agencies have independent litigation authority, but most agencies must be represented by the DOJ if they go to court. See 28 U.S.C. § 516 (2006) ('Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.'). For exceptions, see Neal Devins, Unitariness and Independence: Solicitor General Control over Independent Agency Litigation, 82 CAL. L. REV. 255, 264 (1994).
157. Neal Devins & Michael Herz, The Uneasy Case for Department of Justice Control of Federal Litigation, 5 U. PA. J. CONST. L. 558, 562-563 (2003).
158. See Pritchard, supra note 21, at 1076 (discussing 'cyclical pattern of neglect and hysterical overreaction that typifies securities regulation emanating from both the SEC and Congress').
159. For example, many of the states that initially refused to join the litigation against the tobacco industry were major tobacco producers. See MARTHA A. DERTHICK, UP IN SMOKE 163 (2002) (discussing refusal of Alabama, Delaware, Kentucky, North Carolina, Tennessee, and Virginia to join tobacco litigation, in part due to political constraints faced by attorneys general in these states); cf. Barkow, supra note 129, at 17 ('[E]lected prosecutors will tend to under-regulate because they have competing concerns that favor industry.'); Elizabeth A. Harris & Michael Barbaro, Hedge Fund Links Major Donors to G.O.P. Nominee, N.Y. TIMES, Oct. 14, 2010, at A24 (reporting that 25% of contributions to Daniel M. Donovan, Jr., Republican candidate for attorney general in New York, could be traced to hedge fund 'whose chief executive has emerged as a staunch and influential defender of Wall Street,' and noting that Donovan 'has repeatedly promoted his cautious, nonconfrontational approach to Wall Street'); Nicholas Thompson, The Sword of Spitzer, LEGAL AFFAIRS 50 (June 2004) (''You rarely run for attorney general successfully by prosecuting the biggest corporations in your state, represented by the best law firms, with the best PR firms spinning it' ....' (quoting Scott Harshbarger, former Attorney General of Massachusetts)). The targets of state enforcement may be significantly more alert to enforcement efforts than the diffuse group of beneficiaries. And after the Supreme Court's decision in Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), there are few constraints on corporate defendants' ability to retaliate politically against aggressive attorneys general. The implications of Citizens United for law enforcement are, as yet, unexplored. 144 See Hills, supra note 77, at 23 ('[State politicians] are captured by a different set of interests than those dominant in Washington, D.C., because state constituencies contain a different mix of interests than the nation as a whole.'). Moreover, the dynamics of regulatory capture may vary between specialized agencies and generalist attorneys general. See Jonathan R. Macey, Organizational Design and Political Control of Administrative Agencies, 8 J. L. ECON. & ORG. 93, 93-94 (1992) (arguing that single-purpose agencies are more susceptible to regulatory capture than general-purpose offices like that of attorney general).
160. See, e.g., DUSTIN MCDANIEL, ATT'Y GEN., http://www.dustinmcdaniel.com/story (last visited Apr. 20, 2011) (describing Arkansas Democrat Dustin McDaniel as 'the state's ...top consumer advocate' and identifying his priorities as '[c]urbing methamphetamine production, eliminating payday lenders, and assisting consumers through his health care bureau'); Jerry Brown Accomplishments as Attorney General, JERRY BROWN, http://jerrybrown.org/jerry-brown-accomplishments-attorney-general (last visited Apr. 20, 2011) (listing California Democrat Jerry Brown's accomplishments as 'cracking down on crime and fighting for fairness,' 'fighting for public safety and against corporate abuse,' 'fighting to keep California fair and pristine,' and 'reducing the attorney general's operating budget'); About Dick, RICHARD BLUMENTHAL, UNITED STATES SENATOR FOR CONNECTICUT, http://blumenthal.senate.gov/about/ (last visited Apr. 22, 2011) (describing Connecticut Democrat and former attorney general Richard Blumenthal as '[a] key player in the national fight against Big Tobacco' and emphasizing that '[h]is aggressive law enforcement for consumer protection, environmental stewardship, labor rights, and personal privacy ...resulted in the recovery of hundreds of millions of dollars for Connecticut taxpayers ...each year'); Accomplishments, BEAU BIDEN, DELAWARE'S ATT'Y GEN., http://www.beaubiden.com/about/accomplishments (last visited Apr. 20, 2011) (highlighting Delaware Democrat Beau Biden's 'record of standing up for kids and families,' combating se nior abuse and crime, and acting as 'watchdog for consumers'); About Mike Cox, MIKECOX2010.COM, http://mikecox2010.com/meet-mike (last visited Apr. 20, 2011) (emphasizing that Michigan Republican Mike Cox 'has already made a name for himself as a strong leader who is willing to make bold moves, cut spending and produce recordsetting results'); About Jon Bruning, BRUNING FOR U.S. SENATE, http://jonbruning.com/about-jon/ (last visited Apr. 20, 2011) (reporting of Nebraska Republican Jon Bruning that '[h]is efforts have increased Nebraska consumer recoveries from just under $500,000 total to nearly $1 million annually'); Tom Corbett's Story, TOM CORBETT FOR GOVERNOR, http://www.tomcorbettforgovernor.com/meet-the-team/tom-corbett/ (last visited Apr. 20, 2011) (highlighting Pennsylvania Republican Tom Corbett's 'efforts to protect our children from internet predators, our seniors from fraud and abuse, our communities from gangs and the violence associated with illegal drugs ...[and] to protect taxpayers' hard earned money by going after predatory lenders, pharmaceutical companies and big oil companies that took advantage of consumers').
161. See Rubenstein, supra note 116, at 2139-40 (describing differing financial incentives of public and private attorneys based on differences in payment structure).
162. See generally Max Minzner, Why Agencies Punish (2010) (unpublished manuscript) (on file with author) (arguing that retribution goal best describes agency penalty policies).
163. HOUCK, supra note 89, at 5 ('The states play a prominent role in antitrust enforcement by virtue of their representation of state agencies, which are major direct purchasers of many commodities and frequent targets of bid-rigging and other price-fixing conspiracies.').
164. See 15 U.S.C. § 77p (2006) (restricting private class actions but preserving right of 'a State or political subdivision thereof or a State pension plan [to] bring[ ] an action involving a covered security on its own behalf, or as a member of a class comprised solely of other States, political subdivisions, or State pension plans that are named plaintiffs'). Ohio's recent suit against Bank of America is an example of such an action. See Press Release, Ohio Att'y Gen. Richard Cordray, Consolidated Amended Complaint Filed in Shareholder Lawsuit Against Bank of America (Sept. 28, 2009), available at http://ohioattorneygeneral.gov/SecuritiesLitigation/Briefing (discussing suit). Ohio Attorney General Richard Cordray, during his unsuccessful re-election campaign in 2010, vowed to 'hold Wall Street accountable for their actions in harming Ohio investors, retirees, workers and families through violations of securities laws.' John Michael Spinelli, Ohio AG Cordray Readies AIG Case as House GOP Asks Him To Challenge Federal Health Care Proposal, COLUMBUS GOV'T EXAMINER, Feb. 20, 2010, http://www.examiner.com/government-in-columbus/ohio-ag-cordray-readies-aig-case-as-house-gop-asks-him-tochallenge-federal-health-care-proposal. Cordray's 2009 Annual Report boasts recoveries of more than $2 billion 'for investors.' 2009 OHIO ATT'Y GEN. ANN. REP. 6, available at http://www.ohioattorneygeneral.gov/AnnualReport2009.
165. See Rubenstein, supra note 116, at 2141 (explaining that compensation is conventionally conceived as private goal, and that 'when the government pursues compensatory damages, it is typically seeking to be made whole for losses it has suffered in its more proprietary, not law-enforcement, functions').
166. The FTC has similar authority under § 13(b) of the Federal Trade Commission Act, 15 U.S.C. § 53(b) (2006), to seek equitable monetary remedies for violations of any laws within its jurisdiction. In practice, the FTC has used that authority almost exclusively in consumer protection cases. See 2010 Fed. Trade Comm'n Ann. Rep. 48, available at http://www.ftc.gov/os/2010/04/ChairmansReport2010.pdf ('From March 2009 through March 2010, the FTC's Redress Administration Office mailed redress checks to 2,598,799 consumers for a total of more than $63.6 million.'); see also Stephen Calkins, An Enforcement Official's Reflections on Antitrust Class Actions, 39 ARIZ. L. REV. 413, 431 (1997) (discussing FTC's sparing use of § 13(b) in competition cases). In recent years-and perhaps as a result of competition with state attorneys general-the FTC has expanded its use of § 13(b) to obtain restitution in antitrust cases, perhaps as a result of competition with state attorneys general. See infra note 196 and accompanying text.
167. Howard M. Erichson, Coattail Class Actions: Reflections on Microsoft, Tobacco, and the Mixing of Public and Private Lawyering in Mass Litigation, 34 U.C. DAVIS L. REV. 1, 4 (2000) (noting that "some ...government lawsuits seek money damages for defendants' injurious conduct toward citizens," thereby "mix[ing] the roles of public and private lawyers").
168. Attorneys general regularly publicize any damage awards that are returned to citizens. See, e.g., Press Release, Ark. Att'y Gen. Dustin McDaniel, McDaniel Gives $25,000 to Arkansas Foodbank Network (Apr. 15, 2010), available at http://ag.arkansas.gov/newsroom/index.php?do:newsDetail=1&news_id=304 ('Attorney General Dustin McDaniel presented a $25,000 check to the Arkansas Foodbank Network today .... The funding is from part of a 2006 settlement with Berkeley Premium Nutraceuticals, Inc., an Ohio-based company that is now out of business.'); Press Release, Cal. Att'y Gen. Edmund D. Brown, Jr., Attorney General Brown Announces Landmark $8.68 Billion Settlement with Countrywide (Oct. 6, 2008), available at http://ag.ca.gov/newsalerts/release.php?id=1618&('Attorney General Edmund G. Brown Jr. today announced a landmark, multi-state settlement with Countrywide Home Loans ...that is expected to provide up to ...$3.5 billion to California borrowers.'); Press Release, Conn. Att'y Gen. Richard Blumenthal, Attorney General Announces Mailing of $60,000 in Lakeview Restitution Checks (June 28, 2010), available at http://www.ct.gov/ag/cwp/view.asp?A=2341&Q=462338 ('Attorney General Richard Blumenthal today announced that his office has mailed $60,000 in restitution checks to consumers who paid a Bridgeport company for headstones that were never delivered.'); Press Release, Fla. Att'y Gen. Bill McCollum, Attorney General Reaches $4.5 Million Settlement with Office Depot for Florida Refunds, available at http://www.myfloridalegal.com/newsrel.nsf/newsreleases/370FC8DA33D527C9852577380060920D ('Attorney General Bill McCollum today announced that his office has negotiated a settlement with Office Depot, Inc....Under the settlement, Office Depot will pay approximately $4.5 million in refunds to eligible Florida customers ....'); Press Release, Office of N.Y. State Att'y Gen., AG Cuomo Announces Over $100,000 in Restitution Going to Consumers Victimized by 3 Car Dealerships, available at http://www.ag.ny.gov/media_center/2010/apr/apr26a_10.html ('Attorney General Andrew M. Cuomo today announced that his office is distributing more than $100,000 in restitution to customers of two auto dealerships in the Hudson Valley and Long Island that misrepresented used cars for sale.'); Accomplishments, BEAU BIDEN, DELAWARE'S ATT'Y GEN., http://www.beaubiden.com/about/accomplishments/ (last visited Apr. 20, 2011) ('[Delaware Attorney General Beau Biden] has expanded the Victims Compensation Assistance Program's (VCAP) operations to help victims of violent crime recover, reaching more Delawareans than ever before and awarding more than $2.3 million to victims so far this year ....'); Attorney General Jon Bruning, OFFICE OF THE NEB. ATT'Y GEN., http://www.ago.state.ne.us/your/jonbruning/biography.htm (last visited Apr. 20, 2011) ('An average of more than $900,000 a year has been returned to victims of scams since Bruning took office.'); Attorney General Recovers $11.1 Million in Motorcycle Insurance Overcharges for Consumers, MARTHA COAKLEY, http://www.marthacoakley.com/news/press_releases/details /2010-01-attorney-general-martha-coakley-recovers-111- million- ('Attorney General Martha Coakley's Office entered into settlements with [companies offering insurance for motorcycles] ..., which return $11.1 million to consumers ....'); Biography, OFFICE OF THE MINN. ATT'Y GEN., http://www.ag.state.mn.us/Office/AGBio.asp (last visited Apr. 20, 2011) ('Attorney General Swanson's lawsuits against insurance companies that sold unsuitable policies to senior citizens resulted in almost $1 billion in refund offers to consumers.').
169. See supra note 65 and accompanying text (discussing victim compensation as goal of state enforcement); see also First, supra note 9, at 1039-40 (emphasizing states' comparative advantage at delivering remedies to consumers).
170. See Calkins, supra note 151, at 436 ('[D]espite the recovery by some state attorneys general of substantial monetary damage awards [in antitrust cases], individual consumers have received little in the way of monetary awards.'). For cases in which consumers have received direct payments as a result of state enforcement, see Hubbard & Yoon, supra note 9, at 507 n.47. 156 See generally Farmer, supra note 65 (describing cy pres distributions).
171. JEFFREY S. NIELSON & JEFFREY P. YUSHCHAK, U.S. CHAMBER INST. FOR LEGAL REFORM, REPORT ON POLICIES AND PRACTICES OF STATE ATTORNEYS GENERAL IN INITIATING AND CONDUCTING INVESTIGATIONS AND LITIGATION 3 (2007), available at http://www.instituteforlegalreform.com/get_ilr_doc.php?id=1066.
172. See Posner, supra note 9, at 258 ('I worry that state attorneys general will try to channel the moneys recovered in their suits to charitable uses that will advance their political agenda.'); Ann Davis, To Some, Santa Has a New Name: Spitzer; New York Attorney General Turns Settlement Funds into Gifts; Will it Grease an Election Sleigh?, WALL ST. J., Dec. 24, 2003, at C1 (noting that 'the groups receiving the windfall [from Spitzer's civil settlements] also represent voter constituencies that could be key to Mr. Spitzer's widely expected Democratic run for governor in 2006').
173. For example, $75 million in fines and penalties that New York collected in the Wall Street settlements, described in the previous Section, went into the state's general treasury. Davis, supra note 158; see also NIELSON & YUSHCHAK, supra note 157, at 15 (explaining that five of thirteen attorneys general surveyed reported that 'settlement proceeds are generally deposited in the state's general fund').
174. Cf. Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 HARV. L. REV. 915, 926 (2005) ('Democratic representatives ...have no obvious personal incentive to engorge governmental coffers since, absent the most blatant forms of corruption, they derive no immediate benefit from money flowing through the treasury.').
175. See Dagan & White, supra note 131, at 371-73 (describing settlement). Not surprisingly, researchers have found that the decision to enter the litigation against the tobacco companies was influenced by the expected value of the recovery.
176. Rorie L. Spill, Michael J. Licari & Leonard Ray, Taking on Tobacco: Policy Entrepreneurship and the Tobacco Litigation, 54 POL. RES. Q. 605, 616 (2001).
177. Dagan & White, supra note 131, at 371-372.
178. See Provost, supra note 99, at 45 ('[S]ettlements [that] produce monetary benefits for the state and for consumers and voters ...are significant accomplishments that attorneys general can advertise when they run for reelection or for higher office.'). Attorneys general-particularly those who are facing upcoming elections-take pains to publicize damage recoveries. For example, the campaign website for Terry Goddard, who unsuccessfully ran for governor of Arizona while serving as Attorney General, stated that he 'put together an exemplary record of financial responsibility ...[, producing] more than $267 million for the state and its consumers in settlements, restitution, penalties and other recoveries' in FY 2010 alone. Accomplishments, TERRY GODDARD, http://terrygoddard.com/record (last visited Apr. 20, 2011). During her successful re-election campaign, the official state website of Illinois Attorney General Lisa Madigan stated that in 2008 she had '[c]ollected $1,000,945,708.06 on behalf of the People of the State of Illinois.' About Us, ILL. ATT'Y GEN., http://www.ag.state.il.us/about/index.html (last visited Apr. 20, 2011).
179. Attorneys general may also retain funds, collectively, through NAAG. See, e.g., Daniel Fisher, The House Tobacco Built, FORBES MAG., Sept. 1, 2008, at 98, 98-99 (discussing $140 million fund administered by NAAG as result of tobacco litigation, and $2.8 million 'milk fund,' named for settlement of school-milk case, used by NAAG to pay economists and other experts).
180. See, e.g., 15 U.S.C. § 15c(a)(2) (2006) (recovery of attorneys fees and costs for state antitrust enforcement); 15 U.S.C. § 1681s(c) (2006) (same for state enforcement of consumer credit reporting laws); 15 U.S.C. § 7706(f)(4) (2006) (same for state enforcement against internet spammers); 49 U.S.C. §§ 32709(d)(1)(B), 32710(b) (2006) (same for state enforcement regarding odometer tampering). Courts sometimes have interpreted statutes that are silent as to states as permitting fee awards as well. See, e.g., New York v. 11 Cornwell Co., 718 F.2d 22, 24-25 (2d Cir. 1983) (holding that state may recover fees under 42 U.S.C. § 1988 when it sues as parens patriae under federal civil rights statute).
181. See First, Statement, supra note 115, at 11 ('Some states use 'revolving fund' appropriations hich require agencies to self-fund their efforts through recovery of litigation fees in much the same way as private law firms do; others fund through general legislative appropriations.'). For example, several states have created antitrust revolving funds that are controlled by the attorney general and consist of a percentage of antitrust recoveries and-in some states-fee awards. See, e.g., ARIZ. REV. STAT. ANN. § 41-191.01 (2004) (depositing greater of ten percent of antitrust recoveries or actual amount expended into revolving fund); CAL. BUS. & PROF. CODE § 16750 (West 2008) (depositing greater of ten percent of antitrust recoveries plus attorneys' fees or actual amount expended into revolving fund); KAN. STAT. ANN. § 75-715 (Supp. 2009) (depositing twenty percent of antitrust recoveries into revolving fund); OHIO REV. CODE ANN. § 109.82 (West 2002) (depositing ten percent of antitrust recoveries plus fees and costs into revolving fund); WASH. REV. CODE ANN. § 43.10.215 (West 2009) (antitrust fees and funds transferred to revolving fund pursuant to court order or judgment in antitrust actions). Even in states that do not have an antitrust revolving fund, attorneys general may retain funds for antitrust enforcement pursuant to a court order. See, e.g., N.Y. STATE FIN. LAW § 121(1) (McKinney Supp. 2010) ('[E]very state officer ...receiving money for or on behalf of the state from fees, penalties, forfeitures, costs, fines, refunds, reimbursements, sales of property or otherwise, shall ...pay into the state treasury all such moneys ....'). For an example outside the antitrust context, see CAL. BUS. & PROF. CODE § 17206(c)-(d) (West 2008) (providing that funds recovered by attorney general through consumer-protection litigation must be used to further enforce consumer protection law). See also BRANN, supra note 90, at 5 ('In some states, the consumer protection division [of the attorney general's office] is funded, often to a significant extent, by recoveries obtained by the division ....'). 167 BRANN, supra note 90, at 5.
182. See Folsom, supra note 90, at 958 ('Public antitrust enforcement at the state and local levels is often perceived as 'paying for itself.' In many instances this is quite literally true.').
183. Such arrangements gained notoriety in the context of the states' litigation against the tobacco industry, in which thirty-six states employed private attorneys to assist in the litigation 'because of the fear that the state legislature would not appropriate funds needed for suits against the major tobacco companies.' Zimmerman, supra note 91, at 84. For a thoughtful assessment of the use of contingency fee arrangements, see generally Leah Godesky, Note, State Attorneys General and Contingency Fee Arrangements: An Affront to the Neutrality Doctrine?, 42 COLUM. J.L. & SOC. PROBS. 587 (2009). Courts have accepted the use of contingent-fee arrangements in public litigation, provided that government attorneys exercise meaningful control. See Cnty. of Santa Clara v. Superior Court, 235 P.3d 21, 36 (Cal. 2010) ('[R]etention of private counsel on a contingent-fee basis is permissible in [public-nuisance] cases if neutral, conflict-free government attorneys retain the power to control and supervise the litigation.'); State v. Lead Indus. Ass'n, 951 A.2d 428, 475 (R.I. 2008) (holding that contingency fee agreement between attorney general and private counsel is permissible in civil case, provided that attorney general retains 'absolute and total control over all critical decision-making' (emphasis omitted)).
184. See Erichson, supra note 152, at 36 ('In contrast to the government lawyer's incentives, the contingent fee lawyer's incentives are more entrepreneurial than political. Generally, the contingent fee lawyer's primary incentive is to maximize the monetary recovery, which corresponds with the primary interest of most private plaintiffs.').
185. See generally Peter W. Huber, Guns, Tobacco, Big Macs-and the Courts, COMMENTARY, June 1999, at 32, 36 ('A state attorney general eyeing his next campaign for Senator or Governor can give his own political fortunes a boost by bringing home a billion or two from an out-of-state industry, and sharing 30 percent with prominent citizens back home.'); JOHN FUND, U.S. CHAMBER INST. FOR LEGAL REFORM, CASH IN, CONTRACTS OUT: THE RELATIONSHIP BETWEEN STATE ATTORNEYS GENERAL AND THE PLAINTIFFS' BAR 6-11 (2004), available at http://www.instituteforlegalreform.com/get_ilr_doc.php?id=820 (citing numerous examples of attorneys general awarding contingency-fee contracts to campaign contributors).
186. See Erichson, supra note 152, at 21 ('Some commentators have criticized the state attorneys general for behaving too much like private plaintiffs' lawyers. The Wall Street Journal complained of the 'sue-the-socks-off-em compulsions' of the state attorneys general, arguing that 'the attorneys general increasingly have become little more than deputized posses running raids against the private sector.'' (quoting Editorial, Who's Next, WALL ST. J., Apr. 4, 2000, at A26)); Folsom, supra note 90, at 958-59 ('[T]he selfsupporting nature of state antitrust law enforcement ...provides a ready argument for defense counsel that state antitrust enforcement actions are brought to fill the coffers of public prosecutors.'); FUND, supra note 171, at 15 ('The pattern set by the state AGs and their plaintiff-lawyer allies is clear: First, find an industry with deep pockets, then make a squeeze play.'); Provost, supra note 99, at 44 ('[M]any allies of business have accused some attorneys general of filing frivolous lawsuits and using huge cash settlements to fill state coffers.').
187. See Mahinka & Sanzo, supra note 133, at 233 ('[T]he states have focused in settlement agreements on the recovery of civil penalties and administrative costs ...[t]o a much greater degree than the federal antitrust and consumer protection agencies.'); see also First, supra note 9, at 1039 ('If there is one consistent threat to state antitrust enforcement in the past sixty years, it is the effort to collect money damages for violations of the antitrust laws.'); cf. BRANN, supra note 90, at 5 (explaining that states in which consumer protection enforcement is funded by recoveries tend to place 'emphasis ...on settling cases, as opposed to engaging in lengthy, expensive, and uncertain, litigation' and that 'settlements are then structured to make sure that they include a financial component'). 174 Metzger, supra note 76, at 2026 n.4.
188. Pub. L. No. 110-314, 122 Stat. 3016 (2008) (codified at 15 U.S.C. § 2057c (Supp. III 2010)).
189. For a comprehensive discussion of the CSPIA and the various agency failures that prompted its enactment, see Widman, supra note 9, at 179-91. Widman celebrates state enforcement of the CSPIA as a way for states to give effect to federal law in instances where the relevant federal agency underenforces. Id. at 213-14.
190. 15 U.S.C. § 2057c(a) (Supp. III 2010) ('Beginning on the date that is 180 days after August 14, 2008, it shall be unlawful for any person to manufacture for sale, offer for sale, distribute in commerce, or import into the United States any children's toy or child care article that contains concentrations of more than 0.1 percent of di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), or benzyl butyl phthalate (BBP).').
191. Andrew Martin, Crackdown on Toy Safety Rules Proves No Fun for Toy Makers, N.Y. TIMES, Sept. 29, 2010, at A1 (discussing uncertainties about scope of CPSIA).
192. Provost, supra note 99, at 51.
193. 15 U.S.C. § 2057c(a).
194. dvisory Opinion Letter from Cheryl A. Falvey, Gen. Counsel, Consumer Product Safety Comm'n, to Georgia C. Ravitz (Nov. 17, 2008), available at http://www.crowell.com/PDF/CPSC-Phthalates-Opinion-Letter-and-Memorandum.pdf; see also Natural Res. Def. Council, Inc. v. Consumer Prod. Safety Comm'n, 597 F. Supp. 2d 370, 375 (S.D.N.Y. 2009) (describing CPSC's interpretation). For a more detailed discussion of the battle over the phthalates ban, see Widman, supra note 9, at 186-88.
195. See Natural Res. Def. Council, 597 F. Supp. 2d at 390 (rejecting CPSC's interpretation as 'contrary to the language and structure of the CPSIA[ ] and ...inconsistent with the CPSA's purpose and the CPSIA's legislative history').
196. Press Release, Conn. Att'y Gen. Office, Attorney General Praises Decision Blocking Manufacturers From Allowing Sale of Toxic Toys (Feb. 6, 2009), available at http://www.ct.gov/ag/cwp/view.asp?A=3673&Q=433514; see also Widman, supra note 9, at 194-97 (discussing additional clash between Blumenthal and CPSC). California Attorney General Edmund G. Brown, Jr. has likewise expressed disagreement with the CPSC's interpretation of the statute's text and its reading of congressional intent. Letter from Edmund G. Brown, Jr., Cal. Att'y Gen., to Cheryl A. Falvey, Gen. Counsel, U.S. Consumer Prod. Safety Comm'n (Mar. 25, 2009), available at http://ag.ca.gov/prop65/pdfs/CA_phthalate_letter.pdf.
197. See Nat'l Ass'n of Att'ys Gen., Horizontal Merger Guidelines, at 5-13 (1993) [hereinafter NAAG, Horizontal Merger Guidelines], available at http://www.naag.org/assets/files/pdf/at-hmerger_guidelines.pdf (discussing various points of divergence between state and federal approaches to antitrust merger enforcement); see also David A. Zimmerman, Comment, Why State Attorneys General Should Have a Limited Role in Enforcing the Federal Antitrust Law of Mergers, 48 EMORY L.J. 337, 349-59 (1999) (same).
198. NAAG, Horizontal Merger Guidelines, supra note 184, at § 2.
199. Id.
200. See U.S. Dep't of Justice and the Fed. Trade Comm'n, Horizontal Merger Guidelines (Aug. 19, 2010), available at http://www.justice.gov/atr/public/guidelines/hmg-2010.html.
201. See Zimmerman, supra note 184, at 347 n.49 ('The protection of small business has been discussed as a goal of antitrust law since the Sherman Act, but scholars generally agree that such a goal is inconsistent with the legislative history of the antitrust laws and with sound public policy.'); see also DeBow, supra note 94, at 276 (discussing 'state merger case shot through with parochialism' in which 'district judge noted that 'nothing in the Clayton Act or other federal antitrust laws addressed [the state's] concern about [a local] plant closing'').
202. Hubbard & Yoon, supra note 9, at 513.
203. 15 U.S.C. § 18 (2006) (defining prohibited mergers as acquisitions whose 'effect ...may be substantially to lessen competition, or to tend to create a monopoly').
204. Michael F. Brockmeyer, State Antitrust Enforcement, 57 ANTITRUST L.J. 169, 170 (1988) (internal quotation marks omitted).
205. Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993).
206. ROBERT SKITOL, DRINKER BIDDLE, TEN MILESTONES IN 20TH CENTURY ANTITRUST LAW AND THEIR IMPORTANCE TO THE DECADE AHEAD (1999), http://www.drinkerbiddle.com/publications/Detail.aspx?pub=317&servicesearch=0.
207. Id.
208. Kevin J. O'Connor, Is the Illinois Brick Wall Crumbling?, 15 ANTITRUST 34, 38 n.32 (2000). For other examples of pathbreaking antitrust decisions spurred by state action, see Hubbard & Yoon, supra note 9, at 516-20, and Jay L. Himes, Chief, Antitrust Bureau, Office of the Att'y Gen. of the State of N.Y., Federal 'Un-emption' of State Antitrust Enforcement, Remarks at the Antitrust, Competition and Trade Committee of LEX MUNDI 13-14 (May 14, 2004), available at http://www.abanet.org/antitrust/at-committees/at-state/pdf/publications/other-pubs/unemption.pdf.
209. First, Statement, supra note 115, at 14-15;
210. John C. Coffee, Jr., The Spitzer Legacy and the Cuomo Future, 329 N.Y. L.J. 5, 6 (Mar. 20, 2008) (arguing that competition with Eliot Spitzer caused "the total amount of SEC-obtained restitution plus penalties ...[to] rise[ ] hyperbolically").
211. See Steven J. Cole, State Enforcement Efforts Directed Against Unfair or Deceptive Practices, 56 ANTITRUST L.J. 125, 133 (1987) ('Much of the remedies in state consumer protection actions really have been national in scope. One reason is simply the question of market necessity. So, a locally-imposed remedy by New York State in the case of Nutrasweet labeling on soda cans was applied nationally by 7-Up, Coca-Cola, and the others.'); Posner, supra note 9, at 259 ('The danger is that interstate businesses will be forced to conform their business practices to the most restrictive state interpretation of federal antitrust law.'); Rose, supra note 9, at 2205 ('[M]arket participants will predictably respond to the signals of the strictest enforcer with authority over them and conform their behavior accordingly.').
212. See 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, 430 (2003) ('Acting together, the [state attorneys general] have won legal settlements or concessions from tobacco companies, auto manufacturers, toy makers, paint producers, and others, agreements that would have been quite unlikely if sought by individual [state attorneys general] acting alone.'); Waltenburg & Swinford, supra note 104, at 248 ('[The states] have come to recognize that they actually can affect and shape national policy through coordinated law enforcement efforts ....').
213. See supra notes 71-72 and accompanying text (providing examples of federal statutes that permit state enforcement of federal law yet preempt state law).
214. Hills, supra note 76, at 860 n.167.
215. Id. at 883 n.241 (discussing 'picket-fence' federalism and citing TERRY SANFORD, STORM OVER THE STATES 80 (1967)); see also Sharkey, supra note 77, at 2158 n.128 ('[A] precondition for ...cooperative federalism is likely the existence of intricately linked state and federal agencies, with built-in incentives and opportunities for communication as well as constructive collaboration.').
216. It does not follow that state and federal agencies will always agree, of course. For examples of 'uncooperative federalism,' including state-federal agency clashes, see Bulman-Pozen & Gerken, supra note 76, at 1271-84.
217. Marshall, supra note 8, at 2453.
218. See supra note 72 and accompanying text (listing examples).
219. Editorial, A Victory for Cleaner Air, N.Y. TIMES, Nov. 20, 2000, at A26. For a description of the relevant provisions of federal law.
220. Rachel Zafrann, New York's Novel Strategy for Combating Air Pollution, 11 FORDHAM ENVTL. L.J. 59, 66-70 (1999).
221. Andrew C. Revkin, In New Tactic, State Aims To Sue Utilities Over Coal Pollution, N.Y. TIMES, Sept. 15, 1999, at A1.
222. Id.
223. See Bob Downing, Fatal Beauty, AKRON BEACON J. (Nov. 17, 2009, 7:02 PM), http:// www.ohio.com/lifestyle/downing/70327262.html (describing EPA's regulatory efforts and industry responses); Revkin, supra note 206, at B5 (noting that round of 'legal maneuvers by the states that are home to the old coal plants has delayed new [EPA] action to stanch the pollution').
224. Press Release, U.S. Dep't of Justice, U.S. Expands Clean Air Act Lawsuits Against Electric Utilities (Mar. 1, 2000), available at http://www.justice.gov/opa/pr/2000/March/090enrd.htm.
225. Editorial, supra note 205; see also $4.6B Pollution Payout Signals Major Shift, CBS NEWS, Oct. 9, 2007, http://www.cbsnews.com/stories/2007/10/09/business/main3346547.shtml (discussing later settlement by defendant in related case).
226. Larry D. Kramer, Putting the Politics Back Into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215, 223 (2000).
227. Scholars have debated whether a federal system in fact produces the benefits associated with decentralization. See, e.g., Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903 (1994) (questioning value of federalism). I assume for purposes of this discussion that federalism is (or at least can be) a good thing and ask whether decentralized enforcement produces the same sorts of consequences as decentralized regulatory authority. In the next Section, I identify the circumstances under which those consequences are desirable from the perspective of the federal system.
228. Gregory v. Ashcroft, 501 U.S. 452, 458 (1991); see also Deborah J. Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1, 7 (1988) ('The greater accessibility and smaller scale of local government allows individuals to participate actively in governmental decision making.').
229. Gregory, 501 U.S. at 458.
230. Cf. Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416, 418 (1956) ('[T]he consumer-voter moves to that community whose local government best satisfies his set of preferences. The greater the number of communities and the greater the variance among them, the closer [he] will come to fully realizing his preference position.'). As others have recognized, there is good reason to question the premise of citizen mobility that underlies the metaphor of voting with one's feet. See Barry Friedman, Valuing Federalism, 82 MINN. L. REV. 317, 387-88 (1997) ('People can and do move, but inertia is a large factor in why each of us lives where we do. Even when moves occur, they tend to be for reasons largely unrelated to government policy decisions: We move because our work takes us elsewhere, or because of marriage or some other personal need, or perhaps because of climate and health.'). As noted, supra note 212, my aim here is not to make the case for traditional defenses of federalism, but to investigate whether they make sense when applied to state enforcement rather than state regulation.
231. Michael W. McConnell, Federalism: Evaluating the Framers' Design, 54 U. CHI. L. REV. 1484, 1493 (1987).
232. Id. at 1498-1500.
233. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
234. See William T. Pizzi, Understanding Prosecutorial Discretion in the United States: The Limits of Comparative Criminal Procedure as an Instrument of Reform, 54 OHIO ST. L.J. 1325, 1339 (1993) ('If someone is to decide which laws will be aggressively enforced, which laws will be enforced occasionally, and which laws will never be enforced, it makes sense that the person who has to answer to the voters will make those determinations.'). Scholars have made similar arguments about local prosecutors. See, e.g., Daniel C. Richman, Old Chief v. United States: Stipulating Away Prosecutorial Accountability?, 83 VA. L. REV. 939, 961 (1997) ('[S]ome formal mechanism is thought necessary to ensure that the 'people' have a voice in how [prosecutors] deploy[ ] resources in their name.'); see also Angela J. Davis, Prosecution and Race: The Power and Privilege of Discretion, 67 FORDHAM L. REV. 13, 57 (1998) ('[T]he current system of choosing state and local prosecutors through the electoral process was established for the purpose of holding prosecutors accountable to the people they serve.').
235. See, e.g., Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2332 (2001) ('[P]residential leadership establishes an electoral link between the public and the bureaucracy, increasing the latter's responsiveness to the former.'); Matthew C. Stephenson, Optimal Political Control of the Bureaucracy, 107 MICH. L. REV. 53, 68 (2008) ('While bureaucratic policy preferences are not directly responsive to voter interests, the president-who is responsive to voter interests, at least in expectation-has a number of tools at her disposal to shift the bureaucracy's ideal point.').
236. Cf. Marshall, supra note 8, at 2475-76 (arguing that independent, directly elected federal attorney general would better serve goals of accountability and transparency).
237. See Roderick M. Hills, Jr., Dissecting the State: The Use of Federal Law To Free State and Local Officials from State Legislatures' Control, 97 MICH. L. REV. 1201, 1201 (1999) ('In discussions about American federalism, it is common to speak of a 'state government' as if it were a black box, an individual speaking with a single voice.... [A] 'state' actually incorporates a bundle of different subdivisions, branches, and agencies ....'); Resnik et al., supra note 93, at 728 ('States are themselves aggregates of entities and of persons holding different (and sometimes conflicting) views of what constitutes that state's 'interest.' ').
238. See Bulman-Pozen & Gerken, supra note 76, at 1273 n.45 ('[A]scribing various state officials' actions to the state itself highlights that many different actors can speak on behalf of the state. This diversity generates more channels for state dissent against federal policy and may be particularly important in the context of what we call the 'administrative safeguards of federalism,' where the state 'administrators' of federal policy include not just bureaucrats, but legislators and executives as well.').
239. Cf. Lemos, supra note 79, at 460 (discussing possible barriers to congressional action).
240. Federal antitrust law is an example. See 15 U.S.C. § 15h (2006) (stating that provision for state parens patriae enforcement authority 'shall apply in any State, unless such State provides by law for its nonapplicability in such State'). Other statutes specify the attorney general as the default state enforcer but make clear that states could empower different state actors. See, e.g., 15 U.S.C. § 5712(g)(2) (2006) (permitting other state actors authorized by State and FTC to enforce federal regulations governing pay-per-call services); 15 U.S.C. § 7706(f)(1) (2006) (authorizing enforcement of federal anti-spam legislation by 'the attorney general, official, or agency of the state'); 47 U.S.C. § 227(f)(1) (2006) (authorizing enforcement of federal common carrier legislation by attorney general 'or an official or agency designated by a State').
241. Cf. Hills, supra note 222, at 1248-49 (defending presumption against federal preemption on ground that it encourages Congress to confront issues and 'in effect delegat[es the] solution to interest groups seeking national action, who must make the case before Congress for express intervention in state political structure').
242. Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).
243. See Widman, supra note 9, at 176-77 (explaining that enforcement authority enables states to step in when federal agencies fail to enforce).
244. Similarly, the availability of both state and federal enforcement enables federal enforcers to provide a corrective against underenforcement by states. Just as federal law may sometimes set a floor for state regulatory action, see supra note 74 and accompanying text, federal enforcement efforts establish a baseline level of enforcement that states are free to exceed. One could imagine a scenario, however, in which states had exclusive enforcement authority, serving as replacements for rather than supplements to federal agencies. Indeed, although every statute that currently authorizes state enforcement also empowers a federal agency enforcer, it may be the case that as a practical matter states are the only real enforcers in certain areas. Where states' enforcement powers are legally or functionally exclusive, the one-way ratchet problem discussed in the text below largely disappears-but it is replaced by heightened concerns about the possibility of underenforcement by states.
245. See Posner, supra note 9, at 259 (discussing "one-way character" of state antitrust enforcement).
246. See Gonzales v. Raich, 545 U.S. 1, 9 (2005) (upholding federal prohibition on marijuana possession even as applied to persons who had obtained marijuana legally under California law for therapeutic use).
247. See Press Release, Dep't of Justice, Attorney General Announces Formal Medical Marijuana Guidelines (Oct. 19, 2009), available at http://www.justice.gov/opa/pr/2009/October/09-ag-1119.html (discussing federal enforcement guidelines that 'make clear that the focus of federal resources should not be on individuals whose actions are in compliance with existing state laws'); see also Merritt, supra note 213, at 5-6 (arguing that state governments can check federal authority through lobbying, litigation, and 'by serving as a wellspring of political force,' even though they 'can neither veto federal legislation nor declare it unconstitutional').
248. McConnell, supra note 216, at 1493.
249. For the classic statement of this claim, see Tiebout, supra note 215, at 418.
250. Rubin & Feeley, supra note 212, at 920.
251. See supra notes 69-70 and accompanying text.
252. See supra notes 191-98 and accompanying text.
253. See BRANN, supra note 90, at 9 ('As a practical matter, a relatively small number of States, which were usually larger states with greater resources, end up running most of the [multistate] Executive Committees.').
254. Lynn A. Baker, Putting the Safeguards Back into the Political Safeguards of Federalism, 46 VILL. L. REV. 951, 955-56 (2001) ('[T]he federal political process threatens state autonomy insofar as that process is the means by which a majority of states may impose their own policy preferences on a minority of states with different preferences.').
255. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ('It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.').
256. See DAVID L. SHAPIRO, FEDERALISM: A DIALOGUE 77 (1995) ('[A] policy that may begin its development at the national level ...[may] assume a different complexion and shape in every state in which it is administered. Ultimately, the experiences of the range of states will reflect back on, and redefine, the policy itself.' (discussing DANIEL J. ELAZAR, AMERICAN FEDERALISM: A VIEW FROM THE STATES (2d ed. 1972)).
257. See supra note 196 and accompanying text.
258. See BRANN, supra note 90, at 3-7 (discussing differences in state attorney general consumer protection divisions, with consequences for states' emphasis on mediation or settlement versus litigation, their pursuit of 'impact litigation,' and their preference for seeking damages or injunctive relief).
259. See First, Statement, supra note 115, at 11 ('Comparing how different agencies handle similar problems is a way of overcoming informational asymmetries. [Legislators] can better judge whether agencies are bringing enough of the right kinds of cases or are operating efficiently.').
260. Metzger, supra note 76, at 2099-2100.
261. See generally Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 STAN. L. REV. 115 (2010) (offering functional explanation for Constitution's division of power between federal government and states by showing that federal regulation is preferred when states face collective action problems).
262. See Hills, supra note 77, at 5 ('Congress frequently regulates activities because state regulation, or lack of regulation, of those activities imposes external costs on neighboring states. The whole point of the federal scheme is to suppress states' creativity, which might consist only of creatively achieving benefits for their own citizens at the expense of nonresidents.').
263. S. 1462, The Automated Telephone Consumer Protection Act of 1991; S. 1410, The Telephone Advertising Consumer Protection Act; and S. 857, Equal Billing for Long Distance Charges: Hearing Before the Subcomm. on Commc'ns of the S. Comm. on Commerce, Sci., and Transp., 102d Cong. 40 (1991) (statement of Richard A. Barton, Senior Vice President, Government Affairs, Direct Marketing Association).
264. 154 CONG. REC. S7871 (daily ed. July 31, 2008) (statement of Sen. Jon Kyl) (regarding Consumer Products Safety Improvement Act: 'Giving 50 attorneys general discretion over consumer product safety laws would lead to 50 different interpretations of the law, and, thus, a confusing patchwork of safety standards that would make it more difficult for the CPSC to enforce uniform, national policies.').
265. Telemarketing Fraud and Consumer Abuse: Hearing Before the Subcomm. On Transp. and Hazardous Materials of the H. Comm. on Energy and Commerce, 102d Cong. 79 (1991) (statement of Michael J. Altier, Vice President, National Retail Federation); see also Consumer Product Safety Commission Reauthorization (Part 2): Hearing on H.R. 3343 and H.R. 3443 Before the Subcomm. on Commerce, Consumer Prot., and Competitiveness of the H. Comm. on Energy and Commerce, 100th Cong. 121 (1987) (statement of James Lacy, General Counsel, Consumer Product Safety Commission) ('I think the problem is the fact that it is not quite so simple when you have 50 different attorneys general looking at one law and you have a national Consumer Product Safety Commission which is purportedly setting a uniform consumer product safety environment.'); id. at 340 (statement of National Electrical Manufacturers Association) ('Manufacturers' attempts to anticipate and comply with CPSC requirements will be frustrated if the Commission's decisions about the safety of individual products can be second-guessed by state officials and reexamined and modified by the courts.'); Extend Commodity Exchange Act: Hearing on H.R. 10285 Before the Subcomm. on Conservation and Credit of the H. Comm. on Agric., 95th Cong. 287 (1978) (statement of Laurence Rosenberg, Chairman, Chicago Mercantile Exchange) (arguing that federal agency must have exclusive jurisdiction 'so that the industry can be held responsible for one uniform set of requirements. The same reasons which make us unalterably opposed to a division of federal responsibility over futures apply even more strongly to a sharing of authority between federal and state agencies. Such a division of authority would raise the specter of 50 different and possibly conflicting interpretations of the many provision of the CFTC Act.' (emphases omitted)). 251 Landes & Posner, supra note 13, at 38.
266. Id.
267. See Posner, supra note 9, at 257-58 (voicing this concern regarding state antitrust enforcement). But see Greve, supra note 9, at 103-04 (showing that state antitrust enforcers frequently pursue in-state defendants); Himes, supra note 195, at 10 (emphasizing former New York Attorney General Eliot Spitzer's 'willingness to take on homegrown business interests').
268. Metzger, supra note 76, at 2099-2100).
269. See supra text accompanying note 68.
270. See, e.g., 15 U.S.C. § 1203(b) (2006) (permitting states to adopt standards governing flammable fabrics that are more stringent than federal rules); 15 U.S.C. § 6313 (2006) (same, for rules governing boxing matches); 15 U.S.C. § 7806 (2006) (disclaiming intent to preempt state law regulating sports agents); 18 U.S.C. § 248(d)(3) (2006) (same, for state law regulating access to abortion clinics); 49 U.S.C. § 14711(f) (2006) (same, for state criminal law regarding transportation of household goods); see also California v. ARC America Corp., 490 U.S. 93, 101-02 (1989) (explaining that 'the Court has recognized that the federal antitrust laws do not pre-empt state law' and refusing to preempt state laws permitting suit by indirect purchasers, though such actions are foreclosed under federal law). 257 That is not to say that state enforcement of federal law poses no risk to uniformity above and beyond that created by a failure to preempt state law. The Microsoft antitrust litigation, which sparked a wave of commentary critical of state antitrust enforcement, illustrates the potential problem. In 1998, the United States and a group of states filed suit against Microsoft alleging antitrust violations. See Welcome, COORDINATED STATE ENFORCEMENT OF MICROSOFT ANTITRUST JUDGMENTS, http://www.microsoftantitrust.gov/ (last visited Apr. 20, 2011) (describing background of case and providing helpful links). Efforts to mediate the dispute broke down in the face of disagreements between some of the states and the Department of Justice over the appropriate remedy. First, supra note 9, at 1033-34. It is unclear whether the states should be faulted for the breakdown in Microsoft, or whether the problem (if it is one) has repeated itself elsewhere. Id. Nevertheless, the experience suggests how states' involvement in litigation can complicate federal enforcement efforts-a risk that does not occur when states can enforce only state law. The important point for present purposes is that federal policy makers have tools to combat such interference while preserving state enforcement. Most federal statutes that authorize enforcement by state attorneys general contain provisions that effectively grant federal officials a right of first refusal on enforcement actions. States must give federal enforcers prior notice of any proposed enforcement action and are precluded from proceeding against a defendant for violations that are the subject of a pending federal action. Those provisions do not appear in the federal antitrust statutes. If indeed state interference with federal antitrust enforcement is a recurring phenomenon, it may be appropriate to cabin state enforcement through equivalent notice and pending-federal-action provisions. See also Richard A. Posner, Antitrust in the New Economy, 68 ANTITRUST L.J. 925, 941 (2001) (arguing that Justice Department should have 'right of first refusal' to bring antitrust suits, thereby preempting state and private actions). 258 Cf. Richman, supra note 78, at 780-82 (arguing that fragmented prosecutorial authority reduces risk of capture).
271. Cf. Katyal, supra note 80, at 2324-27 (discussing benefits of competition among federal agencies with overlapping jurisdictions).
272. See supra note 71 and accompanying text (listing statutes that authorize state enforcement while preempting state law); see also Widman, supra note 9, at 207 ('A state enforcement power is sometimes created in exchange for absolute preemption of state laws, as in the Data Accountability and Trust Act of 2009 and the Fair Credit and Reporting Act of 2003.' (citing Data Accountability and Trust Act, H.R. 2221, 111th Cong. (2009), and Fair Credit and Reporting Act, 15 U.S.C. §§ 1681-1681x (2006), amended by FACTA Act of 2003, Pub. L. No. 108-159 (2003))).
273. Alan Schwartz, Statutory Interpretation, Capture, and Tort Law: The Regulatory Compliance Defense, 2 AM. L. & ECON. REV. 1, 20-22 (2000) (detailing inefficiencies that can result from preemptable state law).
274. 15 U.S.C. § 45 (2006).
275. Henry N. Butler & Joshua D. Wright, Are State Consumer Protection Acts Really Little-FTC Acts?, 63 FLA. L. REV. 163, 169-173 (internal quotation marks omitted).
276. J. Howard Beales, III, The Federal Trade Commission's Use of Unfairness Authority: Its Rise, Fall, and Resurrection, 22 J. PUB. POL'Y & MKTG. 192, 194 (2003).
277. E.g., Orkin Exterminating Co. v. FTC, 849 F.2d 1354, 1363-64 (11th Cir. 1988).
278. 15 U.S.C. § 45(n) (2006) (codifying FTC's policy statement by denying Commission authority to declare act unlawful on unfairness grounds 'unless the act or practice causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition').
279. Glenn Kaplan & Chris Barry Smith, Patching the Holes in the Consumer Product Safety Net: Using State Unfair Practices Laws To Make Handguns and Other Consumer Goods Safer, 17 YALE J. ON REG. 253, 285 (2000).
280. See Michael M. Greenfield, Unfairness Under Section 5 of the FTC Act and Its Impact on State Law, 46 WAYNE L. REV. 1869, 1929 (2000) (explaining that although 'courts in most states pay lip service to the statutory direction that they 'be guided by' interpretations of [federal law], ...in fact they adhere to pre-1980 articulations' of unfairness).
281. See supra note 177 and accompanying text. The phthalates ban preempts state law on the subject. See Consumer Product Safety Improvement Act Frequently Asked Questions, CONSUMER PROD. SAFETY COMM'N, http://www.cpsc.gov/about/cpsia/faq/231faq.html#q1 (last visited Apr. 20, 2011).
282. See, e.g., supra note 9.
283. It bears emphasis that antitrust is also an area where state law is not preempted. See supra note 256. Moreover, even if state antitrust law were preempted and states were prohibited from enforcing federal antitrust law, federal law would still permit private antitrust suits and divide federal enforcement authority between the FTC and the antitrust division of the DOJ. Thus, while the risk of disuniformity may be particularly stark in the antitrust context, given the breadth of the relevant federal rule, it is far from clear that states' authority to enforce federal law is the root of the problem. Other contributing factors, including the splintering of federal enforcement authority, the availability of private rights of action, and the continued validity of divergent state laws, are at least as important-and probably more so.
284. See Lemos, supra note 79, at 429-30 & n.122 (discussing statutes that vest primary interpretive authority in federal courts rather than agencies).
285. See supra note 266 (citing statute codifying FTC's policy statement).
286. Cole, supra note 197, at 134.
287. This analysis helps make sense of an otherwise puzzling provision of the recent Dodd-Frank financial overhaul bill, which prohibits states from enforcing any 'provision of this title' against a national bank or federal savings association but permits states to enforce, against the same institutions, 'a regulation prescribed by the [newly created Consumer Financial Protection] Bureau under a provision of this title.' Pub. L. No. 111-203, § 1042(a)(2), 124 Stat. 1376, 2012-13 (2010) (to be codified at 12 U.S.C. § 5552).
288. See Shavell, Fundamental Divergence, supra note 13, at 586-87 (discussing difficulties in determining optimal level of enforcement); see also Rose, supra note 9, at 2178-92 (analyzing over- and underdeterrence in securities context).
289. Widman, supra note 9, at 184; see also Consumer Product Safety Commission Frequently Asked Questions, CONSUMER PROD. SAFETY COMM'N, http://www.cpsc.gov/about/faq.html#rep (last visited Apr. 20, 2011) ('We receive about 10,000 reports of productrelated injuries and deaths a year from consumers and others. Due to our small staff size, we can investigate only a few of them.').
290. Altria Group, Inc. v. Good, 129 S. Ct. 538, 544 n.6 (2008).
291. Cf. First, Statement, supra note 115, at 2 ('Although the data themselves cannot show whether there is state under- or over-enforcement [of federal antitrust law], the relatively small number of state cases, coupled with a lack of enforcement resources, leads me to believe that under-enforcement is the more likely conclusion, particularly given the size of the U.S. economy to be policed by antitrust enforcement agencies.').
292. See supra note 87 and accompanying text.
293. See supra notes 89-90 and accompanying text.
294. See Federal Partners, NAT'L ASS'N OF ATT'YS GEN., http://www.naag.org/federal_partners.php (last visited Apr. 20, 2011) (listing federal agencies).
295. Federal policy makers could further reduce the risk of overenforcement by states by foreclosing multistate actions. See supra note 198 (citing examples of coordinated state enforcement actions).
296. See supra Part II.A.4.
297. Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, Pub. L. No. 108-187, 117 Stat. 2699 (codified as amended at 15 U.S.C. § 7701-13 (2006) and 18 U.S.C. § 1037 (2006)).
298. See Eric Goldman, Where's the Beef? Dissecting Spam's Purported Harms, 22 J. MARSHALL J. COMPUTER & INFO. L. 13, 13-14 (2003) (arguing that most purported harms caused by e-mail spam are illusory, with actual harms adequately addressed by existing law or market mechanisms).
299. 15 U.S.C. § 7706(g)(3) (2006) (providing for statutory damages of up to $25 or $100 per violation, depending on type of violation, with cap of $1,000,000). 288 See id. § 7706(g)(3)(A) (specifying that 'each separately addressed unlawful message that is transmitted or attempted to be transmitted over the facilities of the provider of Internet access service, or that is transmitted or attempted to be transmitted to an electronic mail address obtained from the provider of Internet access service' is 'a separate violation').
300. See Amy E. Bivins, Marketing: Professional CAN-SPAM Plaintiff Again Falls Short of Standing as 'Adversely Affected' ISP, 15 ELEC. COM. & L. REP. (BNA) 375 (Mar. 10, 2010), available at 2010 WL 779922 (discussing dismissal of serial CAN-SPAM plaintiff's suit for lack of standing).
301. See 15 U.S.C. § 7706(f) (authorizing states to sue for injunctive relief or recovery of actual or statutory damages of up to $250 per violation, with maximum of $2,000,000).
302. Pub. L. No. 111-203, § 1042(a)(1), 124 Stat. 1376, 2012-13 (2010) (to be codified at 12 U.S.C. § 5552) (emphasis added).
303. 15 U.S.C. § 15g(1) (2006).
304. See DeBow, supra note 94, at 281 (arguing that Department of Justice 'should clearly be given the authority to move the court to dismiss [state antitrust suits] when the department thinks that the interstate aspects of the litigation outweigh the in-state interests asserted by the plaintiff state'); Rose, supra note 9, at 2225-26 (suggesting that federal securities enforcer should be given authority 'to invalidate state orders that it believes conflict with the public interest' (citing John C. Coffee & Hillary A. Sale, Redesigning the SEC: Does the Treasury Have a Better Idea?, 95 VA. L. REV. 707, 779-81 (2009)).
305. See Widman, supra note 9, at 212 ('[O]ne need not see state attorneys general as apolitical in order to champion concurrent state enforcement; one need only assume that different political incentives apply to the federal and state governments and concurrent enforcement thus ensures enforcement even when the regulated industry may strongly lobby against it.').
306. 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, 543 (1954) (emphasizing states' ability to protect their interests through federal political process and thereby 'influence the action of the national authority'); see also Kramer, supra note 211 (updating and revising Wechsler's thesis).
307. 549 U.S. 497, 519 (2007) ('When a State enters the Union, it surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted.').
308. See Stevenson, supra note 90, at 16-17 (discussing reluctance even to force federal agency rulemaking).
309. See Widman, supra note 9, at 205 ('[A] state enforcement power allows for oversight of those areas where an agency chooses not to prosecute a violation ....'). As Widman explains, state enforcement authority may be significantly more attractive as a 'fix' for federal agency inaction than the alternative of expanded judicial review. See id. at 196-97, 201-02.