Federalism on Trial
State Attorneys General and National Policymaking in Contemporary America
Sales Date: February 23, 2015
296 Pages, 6.13 x 9.25 in
- Published: February 2015
- Published: March 2015
“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 America’s 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.
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.
"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."—Choice
"In this eye-opening book, Paul Nolette illuminates an increasingly important feature of America’s uniquely litigious system of regulation and governance—coordinated policy-oriented lawsuits by state attorneys' general. Federalism on Trial should be essential reading for scholars, teachers, and students interested in the interaction of law and politics, in federalism, and in the politics of public policy."—Robert A. Kagan, Center for the Study of Law and Society at University of California, Berkeley
"This is an important and compelling book that quite persuasively demonstrates that federalism must be understood as an interactive process in which litigation, politics and policy making at the State and national level cannot be studied in isolation."—Gordon Silverstein, Assistant Dean at Yale Law School
1. State Litigation and the Structure of Contemporary American Policy
2. The Emergence of Modern State Litigation
3. Lawyers, Drugs, and Money: Litigating Pharmaceutical Pricing
4. Expanding the Newest War on Drugs: Litigating Pharmaceutical Marketing
5. State Litigation and National Pharmaceutical Policy
6. Fighting a Guerilla War in the Courts: Litigating Acid Rain
7. From SO2 to CO2: Litigating Climate Change
8. State Litigation and National Environmental Policy
9. The Rise of Conservative State Litigation and the Changing Shape of AG Activism
10. State Attorneys General and the Nationalization of State Litigation