Federalism, Separation of Powers, and the Role of State Attorneys General in Multistate Litigation

Large, wealthy, and well lawyered corporations often have far greater financial and legal personnel resources than even a large state attorney general’s office. Faced with the daunting prospect of investigating and prosecuting such defendants, state attorneys general began in the early 1980s to coordinate their prosecutions and share litigation resources. This practice became known as multistate litigation, and it magnified the power and institutional resources that attorneys general could direct toward targets of their investigations. Critics challenge this practice and, by arguing that multistate litigation expands the power of attorneys general in violation of fundamental principles of federalism and separation of powers, seek to undermine its legitimacy. This Note analyzes those criticisms and argues that multistate litigation fully comports with the requirements of federalism and separation of powers.