The States in Federal Appellate Court: Litigation Trends Over Time

Abstract

The federal courts are one of the most important points of contact between the national government and the states. Recent research has noted an increase in the proficiency of the states before the U.S. Supreme Court. We argue that the Courts of Appeals provide a more suitable set of cases for assessing the states' success before the federal bench. We find evidence of a dramatic increase since 1970 in the resources and activity of the state attorneys general, who are increasingly the initiators of appeals. However, contrary to findings at the Supreme Court, the overall success rate of the states before the federal bench has not increased. We also conclude that the caseload of attorneys general has become more political over time. As attorneys general broaden their focus from criminal to economic and civil matters, they act as political entrepreneurs rather than state-level district attorneys.