S. State Attorney General Enforcement: Federalism's Backstop

In recent years, states have become vital agents of public law change across the political spectrum as state Attorneys General, acting individually and at times collectively, have exercised the powers of their office in increasingly assertive and creative ways. Examples include the nationwide litigation against the makers and distributors of opioids, where Attorneys General, working with the plaintiffs’ mass torts bar, dusted off the common law of public nuisance and dipped into unfamiliar bankruptcy waters to obtain billion$$ recoveries and far-reaching injunctive relief; individual and collective investigations of Big Tech, with respect to both monopolistic dominance and protecting consumers’ privacy interests; far-reaching inquiries into sexual abuse within the Catholic Church or systemic rights-violating patterns within urban police departments; the growing docket of climate change-related litigation brought by states -- the list goes on. The increasing intensity of state enforcement comes as the federal government has (with certain exceptions) signaled a retreat in its own civil and criminal enforcement efforts, and as both the current and previous Administrations have claimed broad and controversial executive powers, inviting vigorous legal pushback from one partisan group of state AGs or another.

In this environment, the role of state Attorneys General merits examination from several perspectives, including whether their assertive posture advances the aims of federalism, the unique challenges and advantages of litigating these issues as a public actor, the policy implications of state vs. federal enforcement vis-à-vis private actors, the problem of collective action, and the strategic choices presented in the course of these complex civil litigations. This seminar will critically examine public law litigation by state actors through these lenses. We will draw on relevant statutes and legal doctrines, closely examine court filings and rulings, and consider political, practical and ethical concerns that shape litigation choices in this arena. Students will read case law and scholarship as well as complaints, briefs and other court filings in recent and pending litigation around the country. On several occasions, we will be joined by guest lecturers with substantial experience litigating these cases.

Students will be evaluated on two short response papers, one final exam, and class participation. Each student should select two classes of particular interest (after the initial class) and submit a 3-5 page paper responding to the readings via email in advance of the two selected class sessions. Consistent class participation is essential to a thorough and engaging examination of the issues at stake, and will be taken into account in assessing student performance.