Litigating the “Public Interest” in the Gilded Age: Common Law Business Regulation by Nineteenth-Century State Attorneys General

Abstract

Heeding recent calls to explore the contributions of creative political actors other than federal judges to the process of American legal development, this article examines the role of state attorneys general (SAGs) during the late nineteenth and early twentieth centuries. Consistent with recent revisionist accounts concerning the extent of government power during this era of supposed “laissez-faire,” I find that SAGs creatively employed common law legal theories to address the emerging industrial and corporate order. Through a review of state court cases and newspaper accounts, I discuss how SAGs pursued the “public interest” by seeking injunctions against businesses and even corporate dissolution through public nuisance and quo warranto theories. These efforts to regulate business during the Gilded Age, at a time when standard administrative solutions were absent, directly and indirectly shaped subsequent statutory developments.