The Problem
State attorneys general (AGs) are our states’ chief law enforcement officials. While they are technically a part of each state’s executive branch, each state’s attorney general has tremendous independence.
The original reason for this independence once was worthwhile. As law enforcement officials, state attorneys general needed to be free from political influence and coercion as they pursued their law enforcement agenda, which generally consisted of fighting crime and protecting consumers from scams and fraud.
A Change in Agenda
In the 1990s, a number of attorneys general realized that this political independence could be used for a different purpose – to impact public policy and advance a liberal social and political agenda through litigation. This transformation of the office was both subtle and profound, but the result was significant.
By initiating litigation that appeased certain political constituencies, state AGs became a potent political force in their own states, as well as on the national political scene.
The Bellwether: Public “Purpose” & Private Profit
Beginning in the early 1990s a number of attorneys general entered into then-novel contingency fee agreements with personal injury lawyers. These lawyers assisted the states in bringing lawsuits against the tobacco industry in exchange for a percentage of any settlement or recovery.
The result was a massive legal settlement in excess of $260 billion in which a handful of personal injury lawyers became billionaires. The litigation also spawned a new litigation model in which personal injury lawyers and the state attorneys general “teamed up” to sue businesses.
The model also provided a lucrative source of campaign largesse for state attorneys general. State attorneys general often have broad discretion over whom they hire for legal work; frequently awarded lucrative no-bid contingent fee contracts to generous campaign contributors.
Who's Next?
The model pioneered in state tobacco litigation has proven successful; today, state attorneys general, often working closely with personal injury lawyers, have launched an all-out assault on the business community and the free market. Their targets have included:
- Manufacturers of pharmaceuticals
- Software producers
- Paints and pigments producers
- Technology firms
- Energy companies
- Health insurers
- Financial services industry
Today, no "deep pocket" business is safe because once state attorneys general initiate litigation, their lawsuits are soon followed by private litigation brought by personal injury lawyers.
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