Federalism on Trial

State Attorneys General and National Policymaking in Contemporary America

Paul Nolette

It is one of the happy incidents of the federal system, Justice Louis Brandeis wrote in 1932, that a single courageous state may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country. It is one of the features of federalism in our day, Paul Nolette counters, that these laboratories of democracy, under the guidance of state attorneys general, are more apt to be dictating national policy than conducting contained experiments. In Federalism on Trial, Nolette presents the first broadscale examination of the increasingly nationalized political activism of state attorneys general. Focusing on coordinated state litigation as a form of national policymaking, his book challenges common assumptions about the contemporary nature of American federalism.

In the tobacco litigation of the 1990s, a number of state attorneys general managed to reshape one of Americas largest industries—all without the involvement of Congress or the executive branch. This instance of prosecution as a form of regulation is just one case among many in the larger story of American state development. Federalism on Trial shows how new social policy regimes of the 1960s and 1970s—adopting national objectives such as cleaner air, wider access to health care, and greater consumer protections—promoted both adversarial legalism and new forms of cooperative federalism that enhanced the powers and possibilities open to state attorneys general. Nolette traces this trend—as AGs took advantage of these new circumstances and opportunities—through case studies involving drug pricing, environmental policy, and health care reform.

“A must-read book for anyone who is interested in the role that state attorneys general play in today’s policy battles. Drawing together rich materials on the interactions between Congress, administrative agencies, regulated parties, interest groups, and AGs, Nolette demonstrates how coordinated AG litigation has shaped policy on topic ranging from pharmaceutical pricing to climate change.

—Political Science Quarterly

“A captivating study outlining the role that state attorneys general played in developing modern public policy. The author sees attorneys general as being able to exploit opportunities created within the federal system to use the courts as tools to create policy, enforce existing policy in new ways, and potentially block policy with which they disagree. This study is very novel in that few scholars have examined the role that attorneys general have in state and national politics, nor do they approach the topics presented in the book, ranging from climate change to the Affordable Care Act, with such depth and clarity.

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The result is the first full account—far-reaching and finely detailed—of how, rather than checking national power or creating productive dialogue between federal and state policymakers, the federalism exercised by state attorneys general frequently complicates national regulatory regimes and seeks both greater policy centralization and a more extensive reach of the American regulatory state.

About the Author

Paul Nolette, who has worked as a litigation associate and served as chief legal counsel for the Joint Committee on Labor and Workforce Development in the Massachusetts House of Representatives, is assistant professor at Marquette University.