The Public Face of the 'Litigation State:' Federal Empowerment of Litigation by State Governments

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