A little understood revolution in American law is taking place— regulation by litigation, which places national lawmaking into the hands of powerful coalitions of state attorneys general (AGs) who have no lawmaking power. The recent partnerships of state AGs with private lawyers working on a contingency fee basis to advance unlegislated policy agendas warrants renewed scrutiny of these remarkable arrangements. In a new paper from the Competitive Enterprise Institute, Pirates at the Parchment Gates, author Peggy Little explains how state AGs have abused their office for political purposes while enriching their private attorney allies who are among their largest donors.
“The public is unaware that lawmaking power has fallen into the hands of an organized sector of the bar and a group of their politically and financially allied state attorneys general,” said Peggy Little an attorney with over three decades of legal experience and twenty years of publication on regulation by litigation, separation of powers, climate change regulation, first amendment, class action/mass tort and judicial reform.
Little argues that state AGs’ impulse to siphon wealth for their cronies through government power is not new, but was anticipated and prohibited by the drafters of our Constitution. The current practice of contingency fee contracts between a number of state AGs with private law firms raises three constitutional concerns:
- First, contingency fee financing of lawsuits constitutes a constitutionally prohibited attempt to do an end-run around the appropriations process.
- Second, both the federal and state constitutions require that all receipts of money or services must be legislatively authorized and subject to legislative accountability. No private party or law firm should finance any government operation, ever.
- Third, no private party—including law firms—should ever be given any role in a government investigation or prosecution when they have a direct, personal financial stake in the outcome.