New York, NY — Private lawyers suing industries on behalf of states and municipalities are tackling many of the most vexing public problems, from gun violence and opioid addiction to climate change. As plaintiffs in civil lawsuits for damages, state and municipal governments generate substantial pressure on defendants to settle, giving officials overseeing such lawsuits extraordinary discretion to shape the conduct of private business without statutory authorization. On the surface, such arrangements are typically “free” to the taxpayer. But as James R. Copland shows in a new Manhattan Institute (MI) report, there are costs to the state and local lawsuit industry: both literal and constitutional.
In the report, Copland, a senior fellow at MI and its director of legal policy, details the rule-of-law, separation-of-powers, and appearance-of-corruption concerns of such lawsuits. Payouts to private counsel can be a hefty public expense, the policy adventurism of state and local attorneys can largely escape legislative oversight, and the interactions can raise the possibility of impropriety. In many cases, state and municipal officials relinquish much of their authority over the lawsuits—putatively brought on behalf of the public—to the private lawyers they’ve hired.
As the report, part of the Trial Lawyers, Inc., series, details, these are only part of the problem with a practice that implicates fundamental constitutional concerns. States and localities have sought to use lawsuits to resolve national controversies, sometimes in conflict with laws that Congress has enacted. State litigation contracted out to private parties, Copland argues, inverts federalism, allowing them the power to dictate national policy on controversial questions—to think locally, but sue globally. Precisely such concerns—the “unneighborly regulations” of some states “interfering” with others’ affairs—animated the Constitutional Convention in Philadelphia, as Alexander Hamilton wrote at the time. That the “New Antifederalists” have formed a symbiotic relationship with the avaricious attorneys of Trial Lawyers, Inc., Copland writes, should give pause even to those sympathetic to their policy goals.