STATES HAVE A BROAD RANGE OF POWERS, INCLUDING the power of the legislature to enact legislation and of the executive branch to initiate litigation in a state's own courts in order to enforce its laws or protect its assets. These powers are being invoked by partnerships between states' attorneys general and private contingency fee lawyers. The purpose of these partnerships is to generate substantial wealth for the lawyers and political benefits for the attorneys general as a result of the financial benefits gained for the state and the anticipated future flow of campaign contributions from lawyers. These partnerships transfer regulatory power from the legislature to the courts, the attorneys general, and the profit-seeking lawyers. This transference and privatization of public policy making has corrupting effects on the political process. The prime example of this new form of public-private partnership for mutual profit is the litigation strategy used to bring suit against the tobacco companies.

The Tobacco Litigation

The tobacco litigations were initiated by Michael Moore, the Attorney General of Mississippi, and Richard “Dickie” Scruggs, a prominent Mississippi tort lawyer who had earned huge profits from asbestos litigation. The strategy they devised to extract money from the tobacco companies was not predicated on any tenable legal theory or precedent. The theories of recovery sought to avoid the need for the state to prove that cigarette smoke consumption caused an individual's injury and to eliminate the traditional and effective defenses of the tobacco companies that smokers were aware of the dangers of smoking but continued to do so.