Impersonating the Legislature: State Attorneys General and Parens Patriae Product Litigation
Document Type: Article
Working paper.
Abstract
The state attorney general has emerged during the past decade as a “super plaintiff” in state parens patriae litigation against manufacturers of cigarettes, automobiles, lead paint, and pharmaceuticals. She sues on behalf of the State as the collective plaintiff, seeking reimbursement for the costs of treating or preventing product-caused diseases suffered by individual residents, even though such individual victims would not themselves be able to recover as plaintiffs. More importantly, she seeks to supplant the regulatory regimes previously enacted by Congress, the state legislature, or federal agencies with one that reflects her own vision. In this new era of government by litigation, legislative deliberation of regulatory, taxing, and spending policies has been replaced by the efforts of attorneys general and their colleagues from the plaintiffs’ bar to identify well-heeled product manufacturers as litigation targets.
This Article traces how state litigation against product manufacturers requires both a questionable expansion of the State’s standing to sue parens patriae and a dubious utilization of longstanding torts such as public nuisance. This combination gives the attorney general enormous discretion and power in targeting product manufacturers. The Article then employs the intertwined concepts of jusiticiability and separation of powers to assess the legitimacy of this new wave of regulatory litigation. Finally, it explores how the symbiotic relationship between state attorneys general and a small number of plaintiffs’ law firms distorts both governmental priorities and fiscal policy by focusing on those public health problems that arguably can be attributed to “deep pocket” product manufacturers.
Keywords:
products litigation, parens patriae litigation, state attorney general, tobacco litigation, lead paint litigation, separation of powers, justiciability, contingent fees, mass products plaintiffs’ attorneysRecommended Citation
Gifford, Donald G., "Impersonating the Legislature: State Attorneys General and Parens Patriae Product Litigation" (2008). All Faculty Publications. Paper 517.
http://digitalcommons.law.umaryland.edu/fac_pubs/517
