FEDERALISM ON TRIAL: STATE ATTORNEYS GENERAL AND NATIONAL POLICYMAKING IN CONTEMPORARY AMERICA, by Paul Nolette. Lawrence, KS: University Press of Kansas, 2015. 286 pp. Cloth $39.95. ISBN: 978-0-7006-2089-0.
Reviewed by: Shane A. Gleason, Department of Political Science, Idaho State University. Email: gleashan@isu.edu.
Paul Nolette’s recent book, FEDERALISM ON TRIAL: STATE ATTORNEYS GENERAL AND NATIONAL POLICYMAKING IN CONTEMPORARY AMERICA, is an exhaustive account of state attorney general policy-making via multi-state litigation campaigns. While scholars from a number of subfields including law and courts, state politics, and federalism broadly defined are likely familiar with earlier work on how state attorneys general utilized multi-state litigation to regulate the tobacco industry (e.g. Derthick, 2011), Nolette provides an update for the 21st century which goes beyond simply updating the narrative of the litigation campaigns by stressing the surrounding context shapes not only the characteristics of the litigation, but also the kind of policy attorneys general advocate. Moreover, as an overarching theme in the book, Nolette contends that the changes in attorney general litigation are demonstrative of the changing nature of nation-state relations in the broader context of federalism. As such, this book provides a firm theoretical foundation for future studies on attorney general activity in both multi-state litigation and amicus briefs. While the book is a welcome addition to the literatures on both attorneys general and federalism, it is not without its faults. Specifically, the book relies upon meticulously detailed case studies which allow the reader to delve into the nuance of each litigation campaign. This comes at the expense of clearly espousing and linking back to the theoretical context upon which Nolette’s argument rests. As a result, the theoretical argument only fully comes together in the final few chapters. That said, Nolette provides a welcome addition to the literature which provides a great introduction to work on attorneys general and a useful refresher for scholars already familiar with the topic.
Much of the previous book length treatments of attorneys general and their role in federalism focuses on the tobacco litigation of the late 1990s. However, as Nolette notes in his recent work, the underlying dynamic of attorney general activity has change with partisanship and conflict is now a much more central feature of their amicus curiae brief interactions (Nolette 2014). Nolette contends that the flavor of litigation can take on multiple forms including: policy creation, policy forcing, and policy blocking. Which one occurs in a given case is dependent on the issue area at hand as well as the political context. This book then examines the dynamics of attorney general litigation in two broad issue areas: regulating the pharmaceutical industry and environmental protection from the 1980s through the 2010s. After providing a brief overview of these contexts in Chapter 1, Nolette briefly turns to a history of attorneys general and how they initially became involved in multi-state litigation in Chapter 2. While this provides a base for the subsequent case study chapters, the theoretical framework beyond the different types of litigation is somewhat thin. As a consequence, it is difficult for the reader to connect the subsequent case study chapters back to the larger theoretical framework before the detailed discussion of theory in Chapter 9. That said, the case studies have many strengths on their own.
Chapters 3-8 represent Nolette’s case studies. These chapters focus on efforts to regulate the pharmaceutical industry and to [*60] impose environmental regulations on industrial activity. Nolette’s description is thick; he delves into the specifics of each court decision and often focuses on the efforts of individual Attorneys General and their coordination with interest groups. This gives the reader a, sometimes overly, vivid account of the litigation and, more importantly, an idea of how the various forms of policy litigation play out. Early on, policy creation and implementation occurred on largely non-partisan lines. But, particularly during the George W. Bush and Barrack Obama administrations, policy blocking became more common in environmental litigation. Throughout this description, Nolette focuses on key events to make his points, such as New York Attorney General Robert Abrams filing suit against polluters in the Midwest despite EPA efforts underway to resolve the issue or Connecticut Attorney General Joseph Liberman’s remarks that pre-2000s acid rain litigation was “region against region” (p. 160). These serve as powerful anecdotes to support his overall thesis. Yet the heavy focus on detail sometimes serves to lose the forest for the trees as it becomes difficult, in the face of exhaustive accounts of each stage of the litigation process, to draw back to the larger theoretical framework without a close rereading.
If Chapters 3-8 employ rich detail to the point that the theoretical context is obscured, Chapter 9 is the most persuasive demonstration of the book’s central thesis. Here, Nolette examines the rising tide of conservative attorney general activism during the Obama administration, which he contrasts to the Clinton administration where partisanship was largely absent from attorney general litigation. In the Obama years policy blocking litigation became the norm, especially for Republican attorneys general. Unlike Chapters 3-8, the case studies here are less developed and serve only to illustrate the theoretical argument running throughout the chapter. Yet, these “brief” case studies do an exceptional job in underscoring the argument that the underlying tenor of federalism has changed to pursuing partisan goals over what has traditionally been thought of as state interests. He notes this coincides with the rise of partisan specific attorneys general organizations and a greater number of Republicans in office. The context provided here serves to draw together the loose threads from the earlier chapters and more effectively articulates the broad theoretical framework first posited in Chapter 2.
The theoretical framework articulated in Chapter 9 is expanded in Chapter 10. This chapter is more prospective tone and addresses the underlying normative concerns raised by the study as well as what these findings mean for the future of federalism. Nolette begins by noting that the definition of the states’ interest in federalism is amorphous and changing. The recent turn of attorneys general toward multi-state litigation to pursue this interest serves as a way around government gridlock, but it creates a patchwork of regulatory frameworks with little in the way of clear lines of accountability; this both solves and creates problems according to the author. This chapter also raises a number of questions which could well be a means for future scholars to identify research questions.
Nolette’s book, despite its flaws, represents a significant contribution to the literatures on attorneys general and federalism more broadly. Ultimately this book has accomplished two things. First, it demonstrates attorney general multi-state litigation is not a monolithic process which can be explained with one account from the tobacco litigation campaigns of the 1990s. Rather it is the product of the context and the issue area at hand. Thus, in some cases attorneys general may attempt to force the adoption of policy in regionally based coalitions and in others they will attempt to block policy in partisan groupings. Second, Nolette demonstrates that the traditional narrative of federalism, where state attorneys general advocate for states’ rights [*61] in the face of federal regulation is not strictly speaking static and is indeed in flux. In accomplishing this, Nolette has done the heavy lifting of detailing the changes in the underlying motivations of attorneys general and their relations with each other, which will be invaluable to future scholars writing on this topic. As such, this book represents an important theoretical contribution to the literature on federalism and executive attorneys.
REFERENCES
Derthick, Martha A. 2011. UP IN SMOKE: FROM LEGISLATION TO LITIGATION IN TOBACCO POLITICS. 3rd edition. Sage: Thousand Oaks, CA.
Nolette, Paul. 2014. “State Litigation During The Obama Administration: Diverging Agendas In An Era Of Polarized Politics.” PUBLIUS: THE JOURNAL OF FEDERALISM. 44: 451-474.
© Copyright 2017 by author, Shane A Gleason.
