January 16, 2007
This paper describes the traditional role of the state attorneys general and contrasts that traditional role with the increasingly active role of modern state attorneys general, who more and more frequently employ common-law and statutory powers, both state and federal, to achieve public policy ends they deem desirable. This paper asserts that the modern state attorneys general are more inclined to develop the means and mechanisms by which to use this legal and political power to change business practices, instigate reform and seek damages from private parties in the marketplace. These practices have sparked a separation of powers debate to the extent that the state attorneys general engage in “regulation by litigation;” assuming a legislative role in addition to their proper executive function. Insofar as some of the settlements that result from such litigation actually result in an ongoing oversight role for a state attorney general, they have been criticized for also taking on the function of the third branch of government. These practices raise additional federalism questions to the extent that they have extraterritorial effect. Finally, gaining popularity in the state attorney general community is the practice of retaining outside counsel, often on a contingency fee basis, which raises a host of additional points of debate discussed in this paper.