The Federalism Challenges of Impact Litigation by State and Local Government Actors

By McCusker, Claire | The Yale Law Journal, May 2009 | Go to article overview

The Federalism Challenges of Impact Litigation by State and Local Government Actors


McCusker, Claire, The Yale Law Journal


In the October Term 200l, the Ohio Attorney General's Office filed thirty-six briefs in the U.S. Supreme Court, (1) thereby participating in more than a third of that Term's cases. Of those, thirty-four were amicus briefs. (2) While striking, this high level of involvement by a state attorney general's office in constitutional litigation to which the state is not a party is no longer an aberration. Rather, it is part of a growing trend among state and local government actors of taking a more active role in constitutional and Supreme Court litigation. (3) This Comment examines the important implications for federalism of the increased prominence of these government attorneys in constitutional litigation. More specifically, it illustrates a tension between the adoption of an affirmative litigation model by state and local government actors and the democracy-enhancing values fostered by federalism. The Comment concludes by proposing some possible corrective measures.

The argument proceeds in four Parts. Part I examines the recent rise to prominence of a set of state and local government litigators--namely, state attorneys general, state solicitors general, and city attorneys. Part II establishes a federalism framework through which to evaluate the trend identified in Part I, grouping the values advanced by federalism loosely into the diversity theory and the self-governance theory. Under the diversity theory, the existence of different state practices has two distinct virtues: it both fosters "state laboratories" for the testing of innovative policy proposals and allows for the tailoring of policies to citizens' varying tastes and situations. Under the self-governance theory, the importance of state and local government is preserved in order to encourage democratic participation in governance by the citizenry.

Part III demonstrates the tension between some forms of affirmative litigation undertaken by state and local attorneys and the values promoted by federalism under these two theories. This examination will proceed through two case studies. The first discusses the amicus brief filed by the Attorney General of Texas, joined by twenty-nine other state attorneys general, in District of Columbia v. Heller, (4) the case reviewing the District of Columbia's handgun ban. The second reviews the California Attorney General and San Francisco City Attorney's recently filed suit to invalidate Proposition 8, (5) the ballot initiative that amended the state constitution of California to prohibit gay and lesbian marriage. Each of these examples involves state action that this Comment will argue conflicts with the purposes of federalism outlined in Part II: Texas's amicus brief in Heller represents a use of state power to impose uniformity on state laws that is in tension with the diversity theory, while the San Francisco City Attorney's suit to invalidate a state ballot initiative is at odds with the justifications for federalism put forth by the self-governance theory.

Part IV briefly proposes some potential reforms. Rather than patterning their offices after public interest law firms, this Comment proposes that state actors embrace the model of federal prosecutors in order to avoid partisan capture. First, they should establish a cadre of career appellate lawyers likely to span several administrations. Second, they should impose upon themselves--or state legislators should impose upon them--the discipline of primarily accepting cases through agency referral.

I. THE INCREASED PROMINENCE OF STATE AND LOCAL ACTORS IN FEDERAL CONSTITUTIONAL LITIGATION

Three classes of state and local government attorneys have assumed a newly prominent role in affirmative constitutional litigation in recent years. First, since the mid-1970s, state attorneys general have filed increasing numbers of amicus briefs in the U.S. Supreme Court under the aegis of the National Association of Attorneys General. (6) Second, in the past ten years, a dozen states have established the office of state solicitor general, (7) the occupant of which is charged with state appeals in front of the Supreme Court and with other critical appeals. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Federalism Challenges of Impact Litigation by State and Local Government Actors
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.