Restraining State Attorneys General, Curbing Government Lawsuit Abuse

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In recent years, state attorneys general (AGs)have begun to act more and more like plaintiffs'lawyers who aggressively assert novel claims inlitigation. That trend was most dramaticallyillustrated by the AGs' lawsuits against the tobaccoindustry in the 1990s. By filing those suits,which lacked any support in prior law, the AGsinvaded areas of regulatory and tax policy thatare properly the responsibility of state legislatures.

Although the AGs probably did not expectto prevail in court, they filed with the aim of forcingthe defendants to settle--which they did. Theprimary effects of the settlement have been higherprices for cigarettes and the transfer of enormous sums of money, raised through the higherprices, to state governments and the privateattorneys they hired. Perversely, the settlementalso protected the market shares and profit marginsof the major tobacco companies and furtherconfounded the public as to the proper role ofgovernment in American life.

Unfortunately, the AGs' "success" in thetobacco cases has inspired state and local governmentsto file similar lawsuits against firearmsmanufacturers, lead paint manufacturers, andhealth maintenance organizations. While thosesuits have not yet resulted in any significant victoriesfor the plaintiff governments, much of thelitigation is still pending. More important, wecan expect to see more "son-of-tobacco" governmentlawsuits. The states have an enormousincentive to bring such big, flashy lawsuitsagainst unpopular industries.

This paper argues that the AGs' new litigationstrategy amounts to a form of "government lawsuitabuse" that not only breaches the separationof powers in state government but saddles thepublic with additional tax and regulatory burdensthat are both unwanted and unwise.

The paper also sketches several legal reformsthat would redefine the office of state attorneygeneral, returning it to the important (but muchless headline-grabbing) work that occupied theholders of that office until very recently.

Michael DeBow

Michael DeBow is a professor of law at the Cumberland School of Law, Samford University, and is special assistant for legal policy, Office of the Attorney General, State of Alabama. The views expressed here are solely the author's and do not necessarily reflect the views of any institution with which he is affiliated. An earlier version of this paper was published in Seton Hall Law Review 31, no. 3 (2001).