Saturday, February 15, 2014

What is the Role of the Attorney General?


NOTE: I am posting these eleven articles, originally posted in my now defunct blog "Random Notes", as they are to be cited in an upcoming essay when I discuss liability law. 

In the state of New York, it appears to be to shake down companies to fund the state. And the same seems to be true in more and more states. Ever since the tobacco shake down, sorry extortion, ... uh, I mean "settlement", it seems state attorneys general have concentrated less on traditional roles and more on finding deep pockets they can plunder to fill coffers.

Oh, that isn't all they do. Just look at Elliot Spitzer and his quest for high profile cases suitable to build a political career. Between shaking down Wall Street firms and prosecuting Martha Stewart for offering a defense rather than opening her check book, he not only padded state nests, but also built up a political head of steam that could have taken him far. (Well, were it not for a little personal issue...)

My question is this: Is it the purpose of the Attorney General to find sources or revenue? Is it the purpose of the civil law to act as an adjunct of the tax collector? Admittedly, these shakedowns have all been couched in traditional terms of civil or criminal liability, but does anyone really think the tobacco settlement, Wall Street payouts or any other high profile payments have been about anything other than revenue*?

I will come back to this topic in more detail later, when I have a bit more time, but for the moment I would just like to ask my readers, doe sit make sense for a state to spend its time and effort extorting money form businesses  through the legal system? If they want to increase revenues, why not honestly and openly raise taxes? It would be much more efficient, and, int he end, produce more and more reliable revenues than this stealth approach. Of course it would mean AGs won't have an easy means of promoting their political ambitions, but I am sure they will manage to find other ways to grandstand.

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* Of course personal liability lawyers really pioneered this tactic. They took huge cuts from dubious class action "second generation"and "third generation" asbestos suits - that is suits where the involvement of asbestos is quite marginal -- and rolled them into dubious tobacco claims, such as second hand smoke suits. Those revenues are now supporting attempts to find a new cash cow, such as silicosis (supported, as has recently been discovered, by falsified radiological evidence), high fat foods, obesity suits, and other fertile areas for massive class actions suits. The problem with that being, even if one accepts the "social insurance" theory of tort law, these suits, by striking ever more remote risks, really do little to improve safety or punish wrong doers, and even do very little to compensate their supposed victims, but instead serve solely to fund the liability engine in its quest to find yet more deep pockets to plunder. But tort issues are another topic, and deserve a post of their own.

Originally posted in random Notes on 2009/07/20.

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