Across the country, a quiet but consequential shift is underway in public litigation. Increasingly, cities and counties are outsourcing major lawsuits to private law firms operating on contingency-fee arrangements. While often presented as a cost-saving measure, this trend raises broader questions about accountability, federalism, and who ultimately speaks for the public interest when legal actions carry statewide economic and policy consequences. Left unchecked, the growing reliance on privately driven public litigation risks blurring the line between public authority and private financial incentive.
These arrangements have become increasingly common in recent years as local officials find them attractive because they avoid upfront legal costs and promise significant payouts. However, they give outside counsel a powerful role in shaping litigation normally handled by state attorneys general, who have traditionally been empowered to speak for the state and its people in such matters of broad public importance. The result has been a complex and often fragmented environment in which the constitutional role of the attorney general is weakened, leaving states and their political subdivisions to pursue overlapping and disunified claims against the same defendants which ultimately weakens bargaining power and prolongs litigation.
History shows how this plays out in practice.
When municipalities pursue lawsuits in parallel with the state, they don’t just add another voice to the table; they effectively undermine coordinated legal strategy that would maximize justice for victims. Conflicting rulings and inconsistent outcomes across jurisdictions create legal chaos, leaving businesses and taxpayers to shoulder inflated costs. Victims too often watch compensation shrink, as excessive legal fees consume outsized portions of settlements. Trial lawyers exploit forum shopping and venue manipulation to tilt the scales in their favor. And perhaps most troubling, these lawsuits shift sweeping public policy debates from legislatures into courtrooms, driven by profit incentives rather than democratic accountability.
In the case of opioid litigation, for example, novel legal theories with the potential to unleash a flood of other lawsuits were tested as plaintiffs’ attorneys attempted to expand public nuisance far beyond its traditional bounds. Fractured negotiations, meanwhile delayed relief for victims and complicated already complex national settlements while billions of dollars in settlement funds were diverted to the private law firms that pursued these cases as opposed to the victims who were impacted by opioid abuse. Unfortunately, the opioid cases are hardly unique and now that same dynamic is playing out in other areas as locality litigation expands into new industries.
From PFAS to fossil fuels, locality-driven litigation has become a systemic strategy that shifts state authority into local and private hands. By outsourcing legal authority traditionally reserved for the state to contingency-fee firms, local governments have blurred the line between justice and profit and have transformed public lawsuits into business models that erode the integrity of our legal system. In doing so, a dangerous new alignment of public authority with private financial interests has been created.
Fortunately, the solution is clear: State attorneys general must reassert their constitutional authority. As Doug Peterson, former Nebraska Attorney General, explained in a recent white paper for the Washington Legal Foundation, political subdivisions “are not sovereigns and thus cannot pursue parens patriae claims absent a State’s delegated authority.” Therefore, many attorney general already have the authority to consolidate or preempt local suits, but they need political support and public backing to use this power effectively. States should affirm, through statute, that litigation on behalf of the public belongs to the attorney general, not outside counsel chasing contingency fees.
By reasserting the attorney general’s central role, states can bring greater consistency and accountability to public litigation. Solidifying the attorney generals’ constitutional authority to oversee cases on behalf of the public will go a long way in efforts to bring more transparency to the litigation and contracting process. Left unaddressed, the expansion of locality-driven lawsuits will only complicate settlements, multiply costs, and weaken the state’s ability to speak with one voice.
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Attorneys general are, by design, the chief legal officers of their states. It is both appropriate and necessary that they lead these efforts, consolidating authority where needed to protect the integrity of statewide litigation and to ensure that justice is pursued in a fair, coordinated, and transparent manner.
Asa Hutchinson previously served as the 46th Governor of Arkansas and as member of the House of Representatives where he served on the Committee on the Judiciary.
