Impersonating the Legislature: State Attorneys General and Parens Patriae Product Litigation

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. Attorneys general sue on behalf of their states 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, they seek to supplant the regulatory regimes previously enacted by Congress, the state legislature, or federal agencies with one that reflects their own visions. This Article traces how state litigation against product manufacturers requires both a questionalbe expansion of the state's standing to sue parens patriae and a dubious utilization of longstanding torts such as public nuisance. The Article then employs the intertwined concdepts of justiciability 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.