In this engaging and thoughtful book about the increasing use of coordinated litigation strategies by state attorneys general (AGs), Paul Nolette argues that AGs “have increasingly used the legal process to dictate the terms of national policy” (p. 2). His use of the word “dictate” might surprise readers who associate AGs with resistance to national initiatives on health care and immigration. However, Nolette persuasively argues that in addition to the sort of policy-blocking litigation that is often attributed to the protection of state government prerogatives, AGs’ coordinated activities include both policy-creating litigation directed at corporations and policy-forcing litigation challenging national agencies’ inaction. Based on their authority in a policy regime combining cooperative federalism and adversarial legalism, AGs have used litigation to promote the expansion of national regulation. Thus, one important intellectual contribution of the book is descriptive, because it brings overdue attention to a phenomenon that has received minimal scholarly or public consideration.
Federalism on Trial focuses on carefully researched and well-written case studies of the pharmaceutical industry and environmental policy. In the former, AGs launched suits against corporate practices in areas such as pricing, direct-to-consumer advertising, and off-label marketing. Nolette describes how the AGs reached settlements with various pharmaceutical companies that “combined significant penalties, new industry regulations, and enhanced government oversight of corporate practices” (p. 89). Crucially, these settlements were then ratified and sometimes extended by national policies. The case study of environmental policy highlights how AGs used policy-forcing litigation to require the national government to promulgate more expansive regulations on acid rain, and a combination of policy-forcing and policy-creating litigation to spur reductions in carbon dioxide emissions. The case studies offer proof of concept, demonstrating how AGs’ activities can have a profound impact “all while bypassing the typical avenues and constraints of national policy development” (p. 72). The book ends with a careful yet provocative discussion of whether this circumvention of the standard policymaking process is a positive development. Addressing normative concerns like accountability and the potential for constructive regulatory dialogue and state-level policy experimentation, it concludes that the increased prominence of multistate litigation “raises fundamental issues about democratic governance” (p. 199).
In addition, the book touches on two broader themes that have become increasingly central to the study of the policy process. While Nolette is not the first to examine these themes, his application of them helps to broaden and deepen their meaning. First, the book offers yet another illustration of the now-familiar claim that “new policies create a new politics.” The social policy regimes of the 1960s and 1970s intertwined broad, national objectives with major roles for the judiciary and the states, providing the entrepreneurial space that AGs needed to bring litigation. Moreover, the national government contributed to the heightened capacity of these state-level actors through grants and information sharing, and by giving them the ability (both in statute and through court rulings) to directly enforce federal law. These resources had an ironic policy-feedback effect; they enabled AGs to challenge and occasionally to remake national policy.
Second, the book reminds scholars that the American political system provides a range of institutional venues in which policy development can occur. While these venues are often described as veto points that act as a brake on change, Nolette’s case studies demonstrate that they are also “opportunity points” that facilitate unorthodox lawmaking. Moreover, it is not simply that policy advocates can shift from one venue where they have been unsuccessful to another where they are more likely to achieve their goals. It is also possible for them to use developments in one institutional venue to drive change elsewhere, which occurred when AGs leveraged the “strict standards of state law for a form of national regulation” in their litigation against the pharmaceutical industry (p. 85). The author’s analysis therefore shows how scholars can gain new insights by looking across institutional venues and across levels of government. It reminds them that the United States is a federal system in which the interplay between state and national policy activity determines the actual structure of governance.
An original data set of multistate litigation supplements the case studies. Covering the period from 1980 to 2013, it is introduced in Chapter 2 but plays a surprisingly limited role in the rest of the book. No doubt more could have been done with the information it contains. Nolette’s analysis focuses primarily on broad aggregate patterns, and sometimes this emphasis is very constructive. For example, 91% of the 686 multistate cases in the data set involve policy-creating litigation (p. 31). This striking figure suggests that contemporary collaboration among AGs rarely matches the standard conception of how federalism works, with state lawmakers banding together to defend their prerogatives against what they perceive as national government overreach. Instead, multistate litigation is more often a way for AGs and their allies to pursue policy changes that align with their preferences.
Overall, however, Nolette’s emphasis on aggregate patterns represents a missed opportunity because it leaves open questions about variation across policy areas and over time. Figure 2.2, for instance, shows that litigation involving over half of the nation’s AGs has become more common, but it does not reveal whether policy-creating, policy-forcing, or policy-blocking litigation is driving this trend. It also fails to address whether this pattern prevails across substantive policy areas. Similarly, several interesting charts in Chapter 2 compare state participation rates and leadership rates by aggregating three decades of data in a manner that cannot address temporal changes. Not only would a deeper examination of the original data set have been descriptively useful; it also would have rendered more compelling some of the causal claims that appear in subsequent chapters of the book. For example, Nolette later contends that “much” of the heightened partisan polarization that characterizes current AG activity “had its origins in Democratic activism” (p. 192). If Chapter 2 had delved into partisan patterns over time, this claim would have had a stronger empirical foundation. Similarly, the data set could have been used to justify his decision to focus on pharmaceutical and environmental litigation. The substantive significance of the case studies is well established, but a skeptical reader might question whether they provide sufficient analytical leverage to make broad generalizations.
In sum, Federalism on Trial offers a strong description of multistate litigation and its potential impact but does not address key questions about its evolution over time or the conditions under which it is most likely to occur. Perhaps that is to be expected of a work that focuses on an overlooked phenomenon and thereby opens up numerous potential avenues for future research. Scholars of federalism, judicial politics, and the policy process should all take this form of unorthodox lawmaking more seriously and attempt to build on the insights offered by the book. Indeed, Nolette argues persuasively that multistate litigation responds to the incentives of AGs, members of industry, advocacy groups, and national policymakers, meaning that it likely will continue to be an important part of the American political landscape into the future.
