Draft of February 23, 2000

State Attorney General Actions, the Tobacco Litigation, and the Doctrine of Parens Patriae

Richard P. Ieyoub* & Theodore Eisenberg**

Table of Contents

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. Parens Patriae Actions and the Interests They Protect . . . . . . . . . . . . . . . 5

A. Overview of the Doctrine of Parens Patriae . . . . . . . . . . . . . . . . . . . . . . 5
B. Sovereign Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
C. Development of the Concept of Quasi-Sovereign Interests . . . . . . . . . . . 10
D. Quasi-Sovereign Interests Include Health, Safety, and Welfare . . . . . . . . 14

III. Parens Patriae Doctrine in State Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

A. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

1. The Attorney General’s State Constitutional Authority to Bring Parens Patriae . . . . . . . . . . . . . 19
2. Louisiana Case Law Recognizes Parens Patriae Actions . . . . . . 21

B. Other States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

IV. The Benefits and Limits of Parens Patriae Principles . . . . . . . . . . . . . . . . . 25

A. Authority of the State and the Attorney General to Act . . . . . . . . . . . . . . 26
B. Limiting the Scope of Defenses and Statutory Preemption Claims . . . . . . 26
C. Monetary Relief is Available in Parens Patriae Actions . . . . . . . . . . . . . 30
D. The Limits of Parens Patriae Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . 31

1. Prudential Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2. Practical Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3. Legal Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

I. Introduction

The Attorneys General litigation against the tobacco industry broke ground on several fronts. The scope of interstate Attorney General cooperation was unprecedented. The size of the settlement was unprecedented. Obtaining such massive relief against a previously undefeated litigant was unprecedented.

The impact of the tobacco litigation transcended the states’ own cases. The shift in public and juror attitude towards an industry was also unprecedented. Before the states’ litigation, the tobacco industry had not lost a smoking case^[1] and plaintiffs’ attorneys polling data showed that prevailing before juries would be difficult.^[2] After the settlement, the industry suffered major trial defeats in California,^[3] Oregon,^[4] and Florida.^[5] Whether those plaintiff victories survive after appeal remains to be seen. But these losses, against a nearly perfect prior trial record, suggest that the states’ litigation affected private cases. If private litigants, the federal government, foreign countries,^[6] or others do succeed against the tobacco industry it will be in part because of the paradigm shift in attitude towards the industry resulting from the state litigation brought by the Attorneys General.

Several factors made this litigation special and so especially threatening to the tobacco industry. Part of the story rests in the quality, resources, and risk-taking of Attorneys General and of the private lawyers representing the states. The tobacco industry not only faced the legal authority of states, it knew that these private lawyers, unlike those the industry had tried to bankrupt before, would be difficult to drive away through delaying tactics and other maneuvers designed to break adversaries. Part of the story rested in the ability of these attorneys to provide protection to the whistle blowers whom the industry sought to vilify, as fictionalized in the movie, “The Insider.” Part of the story rested in the industry’s fear that Louisiana’s direct action against the tobacco industry’s insurers would ultimately pit the insurance industry against the tobacco industry.^[7]

Much of the story rested in the fact that the Attorneys General acted in concert. The pressure of one state alone could be resisted. But when Mississippi, Florida, West Virginia, Massachusetts, and Louisiana acted jointly in March 1996 to secure the first Liggett settlement, the power of joint action was established. That settlement opened access to tobacco industry documents, secured Liggett’s cooperation, and encouraged many more states to file actions during the next year. By June 1997, a national settlement was reached, and the Master Settlement Agreement (“MSA”) reached inNovember1998 followed from it.

Most of this is now reasonably well known. What may not be so well known, but is especially apropos of this symposium, are the details of the legal theories that some states relied on. For it is these legal theories, together with the precedent of concerted Attorney General action, that have the greatest implications for joint action on other fronts. These theories varied from state to state and would be revealed at different stages of the litigation, as dictated by local variation in pleading rules. In Louisiana, for example, the legal theories one relies on need not be stated in the petition.^[8]

Although the MSA terminated the litigation before Louisiana’s legal theories were fully tested, some of the theories have implications beyond the tobacco litigation. Of particular importance is the Louisiana’s legal team’s application of the theory of parens patriae to the tobacco litigation. That theory may prove to be useful and important in the other kinds of Attorney General actions we are discussing today and in actions not yet contemplated. The State of Louisiana’s Petition for Damages against the tobacco industry contained several causes of action that would be available to any litigant. The state’s parens patriae theory is uniquely available to the state.

We believe that Louisiana’s trial team developed the theory of parens patriae, as applied to the tobacco litigation, to a degree beyond that of any other state. It is a theory that plainly concerned the tobacco industry because the MSA between the industry and the states expressly covers parens patriae actions.^[9] It is that theory that I wish to discuss as part of this symposium. This is not the place to argue that the particulars of Louisiana’s parens patriae theory would have prevailed in the tobacco litigation. The states’ litigation with the industry is over. But the principles developed and precedents considered in shaping the parens patriae doctrine for the tobacco litigation have important implications for other potential Attorney General actions.

Part II gives a brief overview of the doctrine of parens patriae and then discuss its doctrinal background and scope in greater detail. Part III shows that parens patriae principles are accepted by state courts. Part IV addresses the specific benefits to the state of using parens patriae doctrine in the context of the tobacco litigation. It also sketches limitations on uses of the doctrine.

II. Parens Patriae Actions and the Interests They Protect

A. Overview of the Doctrine of Parens Patriae

Astate’s interests that may suffer damages can be sovereign, quasi-sovereign, or proprietary. As explained more fully below, the state’s sovereign interest is its interest in seeing that its laws are obeyed and enforced. Behavior that violates criminal laws, civil laws, or other regulatory provisions compromises the very sovereignty of the state and can be the subject of a civil action brought in the state’s name. But the state does more than merely enforce its laws. The state exists to “promote the health, safety. . . and welfare of the people.”^[10] A state’s quasi-sovereign interests include its interest in its citizens’ health, safety, and welfare as well as in a healthful environment. A state’s proprietary interests are those that the state asserts on its own behalf as might any other legal entity.

Actions to vindicate states’ sovereign and quasi-sovereign interests are sometimes referred to as parens patriae actions,^[11] though the Latin label is not always used. ^[12] Parens patriae literally means “parent of the country.” Whatever the label, a state may recover costs or damages incurred because of behavior that threatens the health, safety, and welfare of the state’s citizenry. In the tobacco litigation, for example, the state’s duty to protect the public health, safety, and welfare is part of what led it to act against the health hazard created by the tobacco industry and the consequences of that hazard.

Everyone has an ongoing duty to refrain from impinging the state’s sovereign and quasi-sovereign interests. These interests are only infrequently the object of civil litigation. This is probably because, fortunately, breaches of duty on a scale that warrants civil state involvement are rare. Parens patriae actions are not necessarily appropriate for isolated acts of misbehavior and harm. Because parens patriae interests are infrequently litigated, this part presents the background and scope of parens patriae actions and the interests they protect. Understanding the nature and scope of the state’s interests in parens patriae cases is critical to understanding the full implications of the doctrine in future cases.

American courts uniformly recognize a state’s authority to sue, as parens patriae, to vindicate the state’s and its citizens’ interests. Viewed as a parens patriae action, the theory of many possible Attorney General cases, including the tobacco cases, is simple. The state alleges misbehavior by defendants that harmed the state’s sovereign and quasi-sovereign interests.^[13] These interests include the state’s interest in enforcement of its civil and criminal laws and its interest in protecting and vindicating the health, safety, and welfare of its people. In the tobacco cases, these interests are separate from the state’s interest in recovering its medical costs, though the state’s vast tobacco-related medical costs might have assisted in measuring the minimum harm the industry imposed on the state.

Parens patriae doctrine in the United States generally follows the same principles in federal and state courts. State court cases discussing parens patriae regularly rely on federal precedents.^[14] Federal doctrine is therefore a natural starting place for describing parens patriae doctrine.

The Supreme Court reviewed parens patriae’s modern history in Alfred E. Snapp & Son, Inc.^[15] In that case, Puerto Rico sought to bring suit in its capacity as parens patriae against defendants for violations of federal law. Puerto Rico sued numerous individuals and companies engaged in the apple industry in Virginia. The complaint alleged that the defendants had violated federal statutes and regulations by failing to provide employment for qualified Puerto Rican migrant farm workers, by subjecting those Puerto Rican workers that were employed to working conditions more burdensome than those established for temporary foreign workers, and by improperly terminating employment of Puerto Rican workers. Puerto Rico alleged that this discrimination against Puerto Rican farm workers deprived “the Commonwealth of Puerto Rico of its right to effectively participate in the benefits of the Federal Employment Service System of which it is a part” and thereby caused irreparable injury to the Commonwealth’s efforts “to promote opportunities for profitable employment for Puerto Rican laborers and to reduce unemployment in the Commonwealth.”^[16] Puerto Rico’s action prompted the Supreme Court to review the entire line of parens patriae cases.

B. Sovereign Interests

The Court stated that, to have parens patriae standing, the state must assert an interest related to its sovereignty. It stated that an “easily identified” sovereign interest consists of “the exercise of sovereign power over individuals and entities within the relevant jurisdiction--this involves the power to . . . enforce a legal code, both civil and criminal . . ..”^[17] Thus, the state’s power to enforce civil and criminal codes is an interest that may be protected through parens patriae actions.^[18]

Parens patriae standing cannot be based on two other interests, which the Court calls (1) proprietary interests and (2) private interests pursued by the state as a nominal party.

Not all that a State does, however, is based on its sovereign character. Two kinds of non-sovereign interests are to be distinguished. First, like other associations and private parties, a State is bound to have a variety of proprietary interests. A State may, for example, own land or participate in a business venture. As a proprietor, it is likely to have the same interests as other similarly situated proprietors. And like other such proprietors it may at times need to pursue those interests in court. Second, a State may, for a variety of reasons, attempt to pursue the interests of a private party, and pursue those interests only for the sake of the real party in interest. Interests of private parties are obviously not in themselves sovereign interests, and they do not become such simply by virtue of the State's aiding in their achievement. In such situations, the State is no more than a nominal party. ^[19]

The tobacco litigation plainly did not involve assertion by the state of interests ineligible for parens patriae protection. The state did not seek relief as the proprietor of any enterprise. Nor did the state pursue the interests of private parties “only for the sake of the real party in interest.” Any recovery by the state in the tobacco litigation would not inure directly to the benefit of private interests. And the state’s health, safety, and welfare based reasons for bringing an action against tobacco manufacturers are obvious.

C. Development of the Concept of Quasi-Sovereign Interests

In addition to sovereign interests, the Court recognizes a class of state interests as being “quasi-sovereign.” These, too, can support parens patriae actions, but what counts as a “quasi-sovereign” interest is less clear than what counts as a sovereign interest. Quasi-sovereign interests “are not sovereign interests, proprietary interests, or private interests pursued by the State as a nominal party.”^[20]

The Court has developed the concept of quasi-sovereign interests through example and counter-example rather than through deductive reasoning. Quasi-sovereign interests consist of a set of interests that the state has in the well-being of its populace. “A quasi-sovereign interest must be sufficiently concrete to create an actual controversy between the State and the defendant. The vagueness of this concept can only be clarified by turning to individual cases.”^[21]

In Louisiana v. Texas,^[22] Louisiana unsuccessfully sought to enjoin a quarantine maintained by Texas officials, which had the effect of limiting trade between Texas and the port of New Orleans. The Court labeled Louisiana’s interest as that of parens patriae, and distinguished it from the state’s sovereign and proprietary interests:

Inasmuch as the vindication of the freedom of interstate commerce is not committed to the State of Louisiana, and that State is not engaged in such commerce, the cause of action must be regarded not as involving any infringement of the powers of the State of Louisiana, or any special injury to her property, but as asserting that the State is entitled to seek relief in this way because the matters complained of affect her citizens at large. ^[23]

Although Louisiana was denied relief, a line of cases developed in which states were permitted to represent the interests of their citizens in enjoining public nuisances, including discharge of sewage,^[24] flooding,^[25] water pollution,^[26] diversion of water, ^[27] and air pollution.^[28]

In the first of these cases, Missouri v. Illinois,^[29] the Court expressly tied parens patriae standing to protecting the health and comfort of a state’s citizens. “[I]t must surely be conceded that, if the health and comfort of the inhabitants of a State are threatened, the State is the proper party to represent and defend them.”^[30] In Georgia v. Tennessee Copper Co.,^[31] a state’s quasi-sovereign interest was extended beyond the general concepts of the health and comfort of its citizens to specifically include interests in the land on which they reside and in the air that they breath. “[T]he State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.”^[32]

The Court has stated that these early nuisance cases were premised on the threat of injury to the public health and comfort. After surveying many parens patriae cases, the Court summarized the doctrine as follows:

This summary of the case law involving parens patriae actions leads to the following conclusions. In order to maintain such an action, the State must articulate an interest apart from the interests of particular private parties, i.e., the State must be more than a nominal party. The State must express a quasi-sovereign interest. Although the articulation of such interests is a matter for case-by-case development--neither an exhaustive formal definition nor a definitive list of qualifying interests can be presented in the abstract--certain characteristics of such interests are so far evident. These characteristics fall into two general categories. First, a State has a quasi-sovereign interest in the health and well-being-- both physical and economic--of its residents in general. . . . ^[33]

Inclusion of public health interests is all that is necessary for purposes of many possible Attorney General cases, but the interests qualifying as quasi-sovereign interests have been further extended. “[P]arens patriae interests extend well beyond the prevention of such traditional public nuisances.”^[34] In Pennsylvania v. West Virginia,^[35] Pennsylvania was a proper party to represent its residents’ interests in maintaining access to natural gas produced in West Virginia:

The private consumers in each State . . . constitute a substantial portion of the State's population. Their health, comfort and welfare are seriously jeopardized by the threatened withdrawal of the gas from the interstate stream. This is a matter of grave public concern in which the State, as the representative of the public, has an interest apart from that of the individuals affected. It is not merely a remote or ethical interest, but one which is immediate and recognized by law. ^[36]

The state’s quasi-sovereign interest in its citizens’ economic well-being was recognized in Georgia v. Pennsylvania R. Co. ^[37] Georgia alleged that railroads had conspired to fix freight rates in a manner that discriminated against Georgia shippers in violation of the federal antitrust laws. The Court equated unlawful trade barriers with the pollution and nuisance cases:

If the allegations of the bill are taken as true, the economy of Georgia and the welfare of her citizens have seriously suffered as the result of this alleged conspiracy. . . . [Trade barriers] may cause a blight no less serious than the spread of noxious gas over the land or the deposit of sewage in the streams.^[38]

The defendants’ alleged wrong “limits the opportunities of [the state’s] people, shackles her industries, retards her development, and relegates her to an inferior economic position among her sister States. These are matters of grave public concern in which Georgia has an interest apart from that of particular individuals who may be affected.”^[39]

D. Quasi-Sovereign Interests Include Health, Safety, and Welfare

State and federal courts deem several state interests to be quasi-sovereign interests. These interests clearly include the health, welfare, and safety of the State’s citizens.

Georgia v. Tennessee Copper Co.,^[40] shows that, even early in the development of parens patriae doctrine, concerns about pollution in parens patriae cases are, quite naturally, instances of more general concerns about health. The State of Georgia alleged that a Tennessee company was emitting polluting chemicals that were harming Georgia’s interests. Georgia owned little of the affected lands but that did not preclude the existence of a cause of action. In an opinion written by Justice Oliver Wendell Holmes, Jr., the Court stated that the state had established that a private company’s industrial pollutants “threaten damage on so considerable a scale to the forests and vegetable life, if not to health, within the plaintiff state, as to make out a case . . ..”^[41]

Justice Holmes’ reference to “health” is made in a context that establishes health as an interest that the state may clearly defend through parens patriae actions. If harm to “the forests and vegetable life” could be defended through such actions, it followed, a fortiorari, that health could be protected by parens patriae actions. Thus, although pollution often does aesthetic damage and is a common trigger for parens patriae actions, the underlying reason for recognizing causes of action against polluters is because pollution threatens the health and safety of the citizenry.

The state’s interest in protecting its environment is either part of its greater interest in protecting the health and safety of its citizenry or a separable interest that the state may protect. State and federal courts recognize states’ authority to sue as parens patriae for many threats to public health, safety, and welfare. These include damage to coastal or harbor waters and marine life,^[42] discharge of sewage into public waters,^[43] the diverting of water from an interstate stream,^[44] changes in drainage which increase the flow of water in an interstate stream,^[45] the threat of being forced to accept low-level radioactive waste,^[46] refusal of medical clinics to provide sign language interpreters at medical examinations of deaf patients,^[47] schemes constituting common law fraud,^[48] and restraints on the commercial flow of natural gas.^[49]

States thus may sue, on behalf of their citizenry, for damages to the environment, damages to the health, safety, and welfare of their residents, damages to identifiable groups, and economic harms.

Although many states filed actions against the tobacco industry only one tobacco case expressly analyzes a state’s authority, as sovereign, to maintain a cause of action for harm to the health, safety, and welfare of its people. That case sustained the state’s authority. In the Texas tobacco case, federal Judge David Folsom posed the question “whether the State could maintain this action [against the Defendants] at common law in the absence of any statutory provision.”^[50] Relying on Alfred L. Snapp & Son, Inc., supra, Judge Folsom concluded “that the State could bring such an action.”^[51] Judge Folsom first noted that the Supreme Court had approved actions by states to protect quasi-sovereign interests and that these “interests can relate to either the physical or economic well-being of the citizenry.”^[52] He then found that the state had a sufficient interest to maintain an action in its quasi-sovereign capacity.

First, it is without question that the State is not a nominal party to this suit. The State expends millions of dollars each year in order to provide medical care to its citizens under Medicaid. Furthermore, participating in the Medicaid program and having it operate in an efficient and cost effective manner improves the health and welfare of the people of Texas. If the allegations of the complaint are found to be true, the economy of the State and the welfare of its people have suffered at the hands of the Defendants. . . . It is clear to the Court that the State can maintain this action pursuant to its quasi-sovereign interests found at common law. ^[53]

Judge Folsom’s ruling has implications for other Attorney General actions. He held that a defendant’s alleged wrongdoing would give rise to a viable cause of action absent any statutory authorization. The state’s quasi-sovereign interests, standing alone, give it authority to prosecute an action.

III. Parens Patriae Doctrine in State Courts

The parens patriae principles developed primarily in federal court litigation and approved by the Supreme Court have been endorsed by the states. For obvious reasons, we discuss Louisiana’s approach to parens patriae doctrine in greater detail than that of other states.

A. Louisiana

The Louisiana Constitution authorizes the Attorney General to bring actions asserting the State’s parens patriae interests. Louisiana case law recognizes this authority.

1. The Attorney General’s State Constitutional Authority to Bring Parens Patriae Actions

The Attorney General’s authority to bring parens patriae actions stems from Louisiana’s constitutional text. Article IV, § 8 states, in relevant part:

There shall be a Department of Justice, headed by the attorney general, who shall be the chief legal officer of the state. The attorney general shall be elected for a term of four years at the state general election. . . .

As necessary for the assertion of any right or interest of the state, the attorney general shall have authority (1) to institute, prosecute, or intervene in any civil action or proceeding; (2) upon the written request of a district attorney, to advise and assist in the prosecution of any criminal case; and (3) for cause, when authorized by the court which would have jurisdiction and subject to judicial review, (a) to institute, prosecute, or intervene in any criminal action or proceeding, or (b) to supersede any attorney representing the state in any civil or criminal action.

The constitution explicitly and implicitly vests the Attorney General with broad authority to conduct litigation on behalf of the State. The constitution emphasizes the Attorney General's independent authority to conduct litigation by providing for direct election of the Attorney General, by designating the Attorney General to be the State's chief legal officer, and by vesting in the Attorney General authority to enforce the State's laws and to represent the State.

Most importantly, the constitution’s text expressly authorizes the Attorney General “to institute” a “civil action” “as necessary for the assertion of any right or interest of the state.” The sweep of the Attorney General’s litigation authority could hardly be broader. Article IV's text and structure also show that the Attorney General’s power to institute civil proceedings to vindicate the State’s rights is among his broadest powers. His power to initiate civil proceedings is probably limited only by his good faith, his discretion, express legal constraints, or behavior that would be contrary to public policy. This broad power to initiate civil proceedings is a direct logical inference from Article IV’s text. The Attorney General’s authority to intervene in criminal proceedings, or to supersede an attorney who has initiated a civil or criminal action, is limited by subparagraphs (2) and (3), quoted above. His power to institute civil legal proceedings on the State’s behalf is not so limited.

Louisiana’s Supreme Court recognizes the Attorney General’s broad discretion to act for the State in civil cases. In State v. Texas Co.,^[54] the defendant questioned the Attorney General’s authority to bring an action to cancel a mineral lease because the legislature had vested the Mineral Board with full supervision over all mineral leases. The defendant thus argued for an implied limitation on the Attorney General’s authority to represent the State. The court rejected the argument, stating:

The Attorney General has unquestionably the right to file a suit in the name of the State and he is not required to obtain the permission of the Governor or any other executive or administrative officer or board in order to exercise it. This power and duty is inherent in him in the nature of things and has been specially charged to him by the people themselves in the Constitution.^[55]

Since the Attorney General may bring an action to vindicate any interest of the State, the Attorney General may bring actions on behalf of the State as parens patriae. Indeed, if the Attorney General cannot bring such actions, then no State official appears to have such authority.

2. Louisiana Case Law Recognizes Parens Patriae Actions

Louisiana’s courts both recognize the principles of parens patriae actions developed by the U.S. Supreme Court and recognize the Attorney General’s authority to bring parens patriae actions.^[56] State v. Bordens, Inc., ^[57] involved a parens patriae action by the Attorney General based on antitrust violations. The court recognized the Attorney General’s authority to proceed as parens patriae. In doing so, the court recognized parens patriae actions as protecting “quasi-sovereign interests” (in that case the general economy of the State) and referred to Alfred L. Snapp and Son Inc., discussed supra, a leading U.S. Supreme Court case describing the doctrine of parens patriae.^[58] In State v. Classic Soft Trim, Inc.,^[59] the court recognized the Attorney General’s capacity to proceed as parens patriae under the Louisiana Unfair Trade Practices and Consumer Protection Law (“LUTPA”).^[60]

Even when Louisiana courts deem the state not to have a parens patriae cause of action based on a particular legal theory, they recognize the State’s authority to sue as parens patriae. In State v. Time, Inc.,^[61] the state sued Time, Inc. for defamation. The action was brought on the state’s “own account and for account of its citizens . . ..” ^[62] Although the court decided that the state is not a person for purposes of defamation law, the court recognized that the state, “as Parens patriae, is empowered to bring certain types of actions on behalf of all the people.”^[63] Since a state could not be libeled, however, it had no interest distinct from that of its citizens.^[64]

B. Other States

In State of Minnesota v. Ri-Mel, Inc.,^[65] the state alleged wrongdoing by health clubs and their owners. In approving the state’s standing as parens patriae, the state appellate court stated:

Although there is no express statutory authority for the attorney general’s action for restitution on behalf of injured club members, common-law has recognized that under the doctrine of parens patriae a state may maintain a legal action on behalf of its citizens, where state citizens have been harmed and the state maintains a quasi-sovereign interest. State of Minnesota v. Standard Oil Co., 568 F. Supp. 556, 563 (D. Minn. 1983). It is also established that Minnesota has a quasi-sovereign interest in protecting the economic health of its citizens. Id.^[66]

The Minnesota court identified a factor supporting parens patriae actions not emphasized in the Supreme Court’s review of cases. Citing Minnesota v. Standard Oil Co.,^[67] the court took into account the likelihood of successful lawsuits by individuals. The court viewed parens patriae actions as a way for the state to represent a group of harmed citizens whose individual harms might not lead them to bring an action.

. . . Minnesota has an added incentive to bring the action as parens patriae to assure its citizens the full benefit of the legislation and . . . individuals with small overcharges would likely not avail themselves of their individual remedy because of the burden of pursuing the action. Minnesota has a similar incentive to bring an action on behalf club members as parens patriae, because the injured club members may not avail themselves of their remedy under the Club Contracts Act because of the economic burden of suing on a small claim. The clubs’ closings affected the economic interests of more than 16,000 citizens, and Minnesota does have a quasi-sovereign interest in protecting their economic health.^[68]

In Selma Pressure Treating Co., Inc. v. Osmose Wood Preserving Co. of America, Inc.,^[69] the state alleged that defendants unlawfully disposed of hazardous waste. The court held that the state has a legally cognizable property interest in the waters of the state. The state court expressly relied on “a line of cases [that] recognize and protect the State’s parens patriae interest in the air, land and water of its territory.”^[70] In Department of Environmental Protection v. Jersey Central Power and Light Co.,^[71] a pollution action, the state court stated that, “Both parties agree that the State has an interest which gives it standing to sue under Parens patriae doctrine for injunctive relief from pollution in navigable waters which causes injury to fish.”^[72] Although in many states, no case law directly address parens patriae authority to sue, we have found no state in which the principle of parens patriae has been deemed not to be a part of the state’s law.

In summary, whether brought in state or federal court, the interest sought to be protected in a parens patriae action must differ from that of an ordinary owner or tort victim. The facts must show that the state has an interest “independent of and behind the titles of its citizens.”^[73] The state must have an interest of its own and not merely be seeking “recovery for the benefit of individuals who are the real parties in interest.”^[74] And the cases all involve behavior that adversely affect a substantial number of the state’s citizens.

IV. The Benefits and Limits of Parens Patriae Principles

The benefits of parens patriae doctrine must of course depend on the facts of particular cases. In the tobacco litigation, the state’s authority to sue in parens patriae was of potential importance for several reasons. These include establishing the Attorney General’s and the state’s authority to sue, limiting the scope of potential industry defenses and statutory preemption claims, and establishing an additional basis for monetary and injunctive relief. Whether these specific benefits assist attorneys general in future cases depends of course on the harms they seek to alleviate, the other legal theories available to them, and the defenses that may be available to potential defendants.

A. Authority of the State and the Attorney General to Act

In the tobacco litigation, the parens patriae theory strengthened the Attorney General’s claim to act on behalf of the state. In Louisiana’s case, the Attorney General’s authority to sue, independently of any authority to sue vested in other state agencies, was in issue.^[75] The tobacco industry consistently asserted that the Attorney General lacked procedural capacity to sue because Medicaid law vested that right in other state agencies.^[76] To the extent parens patriae actions assert harms to the state’s quasi-sovereign interests, as described above, the authority and obligation of the state’s chief legal officer to prosecute the action is strengthened. That officer is the natural state official to seek to vindicate rights touching upon a state’s sovereignty. The state in parens patriae asserts harms independent of the dollar costs of Medicaid.

B. Limiting the Scope of Defenses and Statutory Preemption Claims

Second, had the case not settled, the tobacco industry’s claim that any right to recovery flowed through the individual smokers themselves, and was not an independent right of the state, would have to be addressed. The Attorney General’s authority to sue also related to the strength of defenses the tobacco industry would present. To the extent parens patriae actions assert harms to the state qua state, defenses that relate to individuals’ actions are unavailing. If defendants commit breaches of legal duties that harm a state’s quasi-sovereign interests, it is no defense that individuals who might have also suffered may have engaged in behavior that precluded their individual recovery.

Third, due to the sovereign and quasi-sovereign interests at stake in parens patriae actions, courts are reluctant to infer preemption of parens patriae actions from the existence of other remedial legislation. Parens patriae actions are not necessarily precluded by the existence of specific statutory remedies. In Selma Pressure Treating Co., Inc. v. Osmose Wood Preserving Co. of America, Inc., supra, the court stated that parens patriae actions are not preempted by specific statutory remedies.

This right of recovery [parens patriae] is not diminished by the coexistence of express statutory remedies where the legislation does not presume to preempt common law rights.^[77]

To the extent parens patriae actions vindicate sovereign and quasi-sovereign interests that differ from proprietary and private interests, there is little reason to infer denial of authority to bring parens patriae actions from the mere existence of other statutory remedies.

Express preemption of actions to vindicate sovereign and quasi-sovereign interests normally is required.^[78] The U.S. Supreme Court mandates that federal courts be extremely reluctant to interpret congressional enactments or constitutional requirements to interfere with states’ sovereign prerogatives. For example, in deciding whether federal statutes authorize suits against states in federal court, the Supreme Court has adopted a clear statement rule. The Court asks whether Congress has “unequivocally expresse[d] its intent to abrogate” state sovereign immunity.^[79] And the Court finds that a state has waived its immunity only when it does so “by the most express language or by such overwhelming implication as [will] leave no room for any other reasonable construction.” ^[80]

In the one tobacco case expressly discussing a parens patriae theory, the court found that the State’s parens patriae action was not supplanted by the Texas state Medicaid statutory remedy that defendants argued was exclusive. ^[81] In the Texas state tobacco litigation, Judge Folsom addressed the question “whether the State’s common law action has been supplanted by a statutory remedy that should be deemed exclusive.” ^[82] He stated that the “crux of the Defendants’ argument is that any common-law action the State may have had can no longer be pursued, because the Texas legislature has provided the State with its exclusive remedy” in a Texas Medicaid statute, § 32.033 of the Texas Human Resources Code.^[83] The Texas federal court noted that this “principle derives from the rule of statutory construction expressio unius est exclusio alterius. In other words, if one thing is implied, it is implied to the exclusion of all others.” ^[84]

The court concluded that applying expressio unius would frustrate, rather than promote the purpose of state and federal Medicaid recovery statutes.

. . . the Defendants would have this Court direct that the State bring individual subrogation claims pursuant to § 32.033. Although this approach may be preferred in situations where a single tortfeasor inflicts a one-time harm against a single individual who receives Medicaid benefits, the practical consequence of the Defendants’ position would be to prohibit a state from ever instituting a suit that alleges a broad based harm to millions of citizens. It would be impractical, if not impossible, for the states to follow the mandates of the Medicaid statute’s reimbursement provisions, because proceeding on a claim-by-claim basis would be cost prohibitive and inefficient.

. . . To prevent the State from proceeding in the present manner does not further the purpose of the Medicaid reimbursement provisions, rather it hinders it. To adopt the Defendants’ position, this Court would have to determine that Congress and the Texas legislature anticipated the reimbursement issues raised by this case, considered the existence of the State’s common law cause of action, and determined that a subrogation remedy would be the best way to proceed in all instances. This is too much to ask. The State’s position that the presence of a statutory right normally does not extinguish non-statutory rights is more consistent with the spirit of the reimbursement provisions of the Medicaid statute. ^[85]

In the tobacco litigation, there would thus be a reduced basis for claiming that any Medicaid-based cause of action was the exclusive cause of action. This benefit of parens patriae theory could well apply in other contexts.

C. Monetary Relief is Available in Parens Patriae Actions

Parens patriae actions maybe brought for monetary relief as well as for injunctive relief.^[86] Courts have rejected the argument that damages are not available in parens patriae actions.^[87] When the Supreme Court has discussed the question of damages in parens patriae cases it has indicated that the Eleventh Amendment precludes a state from recovering monetary compensation from another state only when the monetary recovery will clearly be passed on to individual state citizens. ^[88]

In a state tobacco case expressly discussing damages under a parens patriae-like theory, the court accepted that damages are available. In the Texas litigation, Judge Folsom clearly assumed that damages, to the extent proven, would be available to a state seeking to vindicate its quasi-sovereign interests. ^[89]

D. The Limits of Parens Patriae Doctrine

Deriving modern limits on parens patriae doctrine is difficult because most of the leading case authorities relating to parens patriae are not of recent vintage. The leading Supreme Court cases tend to date from the early 1900s. ^[90] It is not coincidence that cases addressing the authority of the state to sue in parens patriae followed closely after the industrialization of the United States. Spills into waterways, diversion of water, air pollution, and the like became regional issues in the early industrial era. These early actions in parens patriae can be viewed as one method of states controlling the effects of industrialization. It would take Congress decades to addressing these issues at the national level through measures such as the Clean Air Act.

Active modern use of parens patriae principles by Attorneys General may be a consequence of the growth of the modern American consumer state. Unfair and deceptive practices (“UDAP”) laws are a key state weapon in the effort to protect consumers. But the modern consumer state, like the industrial state, includes groups seemingly beyond the reach traditional state regulation, such as UDAP laws, ^[91] and too powerful to be subject to federal regulation. For example, the tobacco industry resisted federal and state regulation through massive lobbying as well as lack of candor about the health risks of smoking. Since this modern use of parens patriae is in its early stages it may be premature to anticipate what limits should be imposed on its uses. The doctrine likely played a role in bringing about the successful tobacco litigation settlement but that settlement pretermitted the opportunity for courts to articulate the doctrine’s limits.

So the guidelines sketched below for exercise of parens patriae power are necessarily imprecise. In assessing the limits of parens patriae principles, three kinds of limitations are worth separating: prudential limits, practical limits, and legal limits.

1. Prudential Limits

The power of the state can be daunting. It literally extends to the power over life and death. The first and most important check on overextending that power must come from the prudential acts of the state officials who are authorized to exercise state power. In determining whether to exercise parens patriae power, state officials should take into account two principal prudential factors.

First, actions in parens patriae should be reserved for substantial and serious harm to the citizenry. Misdeeds directed against individuals or small groups usually do not require use of the doctrine. The tobacco litigation illustrates the kind of alleged massive harm that warrants action though not every instance of harm need be so overwhelming. Louisiana acted in parens patriae in the tobacco litigation because of the severe damages allegedly inflicted by the tobacco industry on the state’s sovereign and quasi-sovereign interests. The scope of the alleged wrong, and the extensiveness of the alleged harm inflicted, supported the state’s decision to initiate the litigation on its own behalf.

Second, other available remedies and doctrines should be wanting or limited in some respect. The tobacco litigation is again illustrative. This was not a battle that individual citizens can or should be expected to fight, one-by-one, against an industry’s marketing, scientific, public relations, and legal armies. And the state’s suffering of harms independent of those suffered by individual smokers suggests that only action by the state could vindicate its interests.

These prudential considerations vest substantial discretion in state law enforcement officials, and especially the Attorney General. But broad prosecutorial discretion is the norm in our legal system. Prosecutors’ decisions to initiate civil or criminal actions are virtually unreviewable. It should not be surprising that the Attorney General’s authority to prosecute state interests in parens patriae actions is similarly broad.

2. Practical Limits

If the tobacco litigation is a guide, an important practical limit to the use of parens patriae will be the willingness of states or Attorneys General to act in concert. However powerful one state’s use of parens patriae principle might be, the core lesson of the tobacco litigation is that states can be most effective when they act in concert. In hindsight it is easy to forget that the states did not always present such a united front against the tobacco industry. Only after the states were substantially united did serious settlement terms emerge.

Few took the state actions seriously when there was only one or a handful of states suing the tobacco industry. Many skeptics included fellow Attorneys General who declined to file suit.^[92] It was not until after the first Liggett settlement that concerted state action really begin to squeeze the tobacco industry. Before the first Liggett settlement, only six states, including Louisiana, had sued in over two years. The number grew to 22 in less than one year after the settlement. A set of local actions had been transformed into a truly national action. National settlements followed. A retrospective Wall Street Journal article reported that the “surprise 1996 settlement of five states” was “a turning point in the tobacco wars.”^[93]

3. Legal Limits

Legal limits on parens patriae are foremost a question of state law. Within a state’s own courts, and subject to federal and state constitutional limitations, state legislatures can authorize as broad a scope for the use of parens patriae as they wish. And several kinds of state laws, including UDAP laws, can be viewed as statutory embodiments of parens patriae principles. ^[94] States have the corresponding power, at least through provisions in state constitutions, to limit assertions of that power or judicial recognition of such power.

Assuming states choose to adhere to currently existing parens patriae case law, Part II presents the principal doctrinal limitations. As currently articulated, parens patriae actions require that the state not be acting in a proprietary capacity. When the state itself is a victim of tortious or contractual misconduct, it can directly vindicate its interests as fully as any other litigant. And states cannot be acting simply as enforcement agencies for small collections of private individuals. There must be a state interest beyond that of private parties to warrant a parens patriae action.

The precise nature of such state interests has been left vague by the Supreme Court. As noted above, “The vagueness of this concept can only be filled in by turning to individual cases.”^[95] Speculation about what interests will be viewed as supporting parens patriae actions in the future may not be fruitful. It suffices to note that the state’s interest in the health, safety, and welfare (including economic welfare) of its citizens supports such actions. This broad view of protected interests should support protecting nearly all interests that a state might reasonably seek to protect.

V. Conclusion

The states’ tobacco litigation revived use of an important power of state governments: civil actions brought in parens patriae to vindicate a state’s interests in the health, safety, and welfare of its citizens. The use of such actions is more than a century old and rests on an ample line of precedents.

Although such actions are powerful, and uniquely available to governments, they are not a means by which states can avoid other important prerequisites to legal relief. In particular, there remains the requirement that defendants breach some legal duty that harms a state’s parens patriae interest.^[96] Parens patriae doctrine helps articulate the state’s legal interests. It does not define the defendant’s legal duties. ^[97] Future state litigation relying on parens patriae doctrine must both attend the limits on parens patriae doctrine and understand the need for a breach of legal duties by potential defendants.

[1] It is reported that plaintiffs won four of seven tobacco case trials tried after June 1998. Richard A. Daynard & Mark Gottlieb, Keys to Litigating Against Tobacco Companies, 35 TRIAL 18 (Nov. 1999) and previously had won only two trials of 813 filed claims against tobacco companies, with the two trial victories reversed on appeal. Erin Myers, Note, The Manipulation of Public Opinion by the Tobacco Industry: Past, Present, and Future, 2 J. HEALTH CARE L. & POL'Y 79 (1998).

[2] Indeed, Mississippi’s critical first action was structured to avoid trial by jury, an issue finally resolved by the Mississippi Supreme Court.

[3] Henley v. Philip Morris, Inc., No. 995172, 1999 WL 221076 (Cal. Super. Ct. Apr. 6, 1999), appeal pending.

[4] Williams-Branch v. Philip Morris Inc., No. 9705-03957 (Cir. Ct., Multinomah Co., Ore. March 30, 1999), appeal pending. See Trapped by Their Own Records, NAT’L L. J., Feb. 28, 300, at C8.

[5] Engle et al. v. R.J. Reynolds Tobacco Co. et al., No. 94-8273 CA 22 (Fl. Cir. Ct., 11th Jud. Dist., Dade Cty. July 7, 1999).

[6] See Bob Van Voris, New Attack on Big Tobacco: Philip Morris Verdict May Be Small Compared with Union Fund Liability, NAT'L L.J., Feb. 22, 1999, at A1 (listing several foreign governments that have filed suit against the tobacco industry in U.S. courts).

[7] E.g., Dan Lonkevich, Tobacco Cos. Offer Olive Branch to Insurers in Coverage War. (Insurance Coverage Related to Tobacco Litigation), 101 National Underwriter Property & Casualty- Risk & Benefits Management, No. 13 (March 31, 1997). The Master Settlement Agreement of November 23, 1998 (“MSA”) releases the tobacco industry’s insurers from liability. MSA § II(oo).

[8] Whether a petition states a cause of action turns solely on construing the facts alleged in the petition. Montalvo v. Sondes, 637 So.2d 127, 131 (La. 1994); Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234 (La. 1993); Kuebler v. Martin, 578 So.2d 113 (La. 1991). There is no requirement that the petition contain a list of legal theories supported by the facts plead. “The court must accept the well pleaded allegations of fact as true, and the issue at the trial of the exception [of no cause of action] is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought.” Montalvo, 637 So.2d at 131.

[9] MSA, supra note 7, at § II(pp)(2).

[10] Preamble, La. Const. (1974).

[11] E.g., Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 600, 102 S.Ct. 3260, 3265 (1982),

[12] The doctrinal labels used to support States’ actions on behalf of their citizenry vary. Sometimes no doctrinal labels are used. E.g., Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S. Ct. 379 (1967) (cause of action for costs of cleanup). Sometimes the State’s action is framed as one brought by the trustee of property for the benefit of the public. State v. City of Bowling Green, 38 Ohio St. 2d 281, 313 N.E.2d 409 (Ohio 1974) (cause of action for damages to environment). Sometimes cases to protect the public are labeled actions brought under the State’s power as parens patriae. E.g., Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 102 S. Ct. 3260 (1982) (cause of action to protect economic interests of a class of workers); Maine v. M/V Tamano, 357 F. Supp. 1097 (D. Me. 1973) (cause of action for damages to environment).

[13] “[J]udicial relief sometimes may be granted to a quasi sovereign state under circumstances which would not justify relief if the suit were between private parties . . ..” State of Florida v. Mellon, 273 U.S. 12, 16 (1927). But, in general, the cases involve misbehavior by defendants that likely would give rise to liability under some nuisance or other tort theory. And it “must appear that the state has suffered a wrong furnishing ground for judicial redress or is asserting a right susceptible of judicial enforcement.” Id. at 16-17.

[14] E.g., State v. Bordens, Inc., 684 So.2d 1024, 1026 (La. App.4th Cir. 1996), writ denied, 690 So.2d 42 (1997) (citing Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 102 S.Ct.3260 (1982)).

[15] 458 U.S. 592, 600, 102 S.Ct. 3260, 3265 (1982).

[16] 458 U.S. at 597-99.

[17] Id. at 601 (emphasis added).

[18] The Court recognized a second sovereign interest of less relevance here--the demand for recognition from other sovereigns, which usually involves the maintenance and recognition of borders.

[19] 458 U.S. at 601-02.

[20] Id. at 602.

[21] Id.

[22] 176 U.S. 1 (1900).

[23] Id. at 19.

[24] Missouri v. Illinois, 180 U.S. 38 (1901); Wyoming v. Colorado, 259 U.S. 419 (1922).

[25] North Dakota v. Minnesota, 263 U.S. 365 (1923).

[26] New York v. New Jersey, 256 U.S. 296 (1921).

[27] Kansas v. Colorado, 36 U.S. 46 (1907); Kansas v. Colorado, 185 U.S. 125 (1902).

[28] Georgia v. Tennessee Copper Co., 36 U.S. 230 (1907).

[29] 180 U.S. 38 (1901).

[30] Id. at 241.

[31] 36 U.S. 230 (1907).

[32] Id. at 237.

[33] 458 U.S. at 607 (emphasis added).

[34] Id. at 605.

[35] 262 U.S. 553 (1923).

[36] Id. at 592.

[37] 324 U.S. 439 (1945).

[38] Id. at 450.

[39] Id. at 450-451.

[40] 36 U.S. 230 (1907).

[41] Id. at 238-39 (emphasis added).

[42] Maine v. M/V Tamano, 357 F. Supp. 1097 (D. Me. 1973); Maryland v. Amerada Hess Corp., 350 F. Supp. 1060 (D. Md. 1972); Department of Environmental Protection v. Jersey Central Power and Light Co., 336 A.2d 750 (Super. Ct. N.J. 1975), rev’d on other grounds, 351 A.2d 337 (N.J. 1976).

[43] Missouri v. Illinois, 180 U.S. 38 (1901); New York v. New Jersey, 256 U.S. 296 (1921).

[44] Kansas v. Colorado, 36 U.S. 46 (1907).

[45] North Dakota v. Minnesota, 263 U.S. 365 (1923).

[46] Nebraska v. Central Interstate Low-Level Radioactive Waste Commission, 834 F. Supp. 135, 1210-1211 (D. Neb. 1993), aff’d, 26 F.3d 77 (8th Cir.), cert. denied, 513 U.S. 987 (1994).

[47] People v. Mid Hudson Medical Group, P.C., 877 F. Supp. 143, 147-148 (S.D.N.Y. 1995).

[48] E.g., Alaska v. First National Bank of Anchorage, 660 P.2d 406, 421 (Alaska 1982) (collecting cases).

[49] Pennsylvania v. West Virginia, 262 U.S. 553 (1923).

[50] Memorandum Opinion and Order re Defendants’ Motions to Dismiss Counts 1-3 and Counts 4-17 of the State’s Second Amended Complaint, Sept. 8 1997, at 5, The State of Texas vs. The American Tobacco Co. et al., No. 5-96CV-91, E.D. Tex., Texarkana Div. [hereinafter Texas Order].

[51] Id.

[52] Id.

[53] Id. 5-6.

[54] 199 La. 846, 7 So.2d 161 (1942).

[55] 199 La. at 850-51, 7 So.2d at 162.

[56] State v. Bordens, Inc., 684 So.2d 1024 (La. App. 4th Cir. 1996), writ denied, 690 So.2d 42 (1997); State v. Classic Soft Trim, Inc., 663 So.2d 835 (La. App. 5th Cir. 1995), writ denied, 666 So.2d 669 (1996); State v. Time, Inc., 249 So.2d 328 (La.App. 1st Cir. 1971), writ denied, 252 So.2d 456 (1971) (recognizing validity of parens patriae actions but finding no cause of action for defamation).

[57] 684 So.2d 1024 (La. App. 4th Cir. 1996), writ denied, 690 So.2d 42 (1997).

[58] Id. at 1026.

[59] 663 So.2d 835 (La. App. 5th Cir. 1995), writ denied, 666 So.2d 669 (1996).

[60] 684 So.2d at 836 (rejecting defendants’ argument that “the State does not have interest in this litigation as parens patriae”).

[61] 249 So.2d 328 (La. App. 1st Cir. 1971), writ denied, 252 So.2d 456 (1971).

[62] Id. at 328.

[63] Id. at 333 (quoting trial court opinion).

[64] Id.

[65] 417 N.W.2d 102 (Minn. App. 1987), review denied (1988).

[66] Id. at 112.

[67] 568 F. Supp. 556 (D. Minn. 1983).

[68] 417 N.W.2d at 112.

[69] 221 Cal. App.3d 1601, 1616, 271 Cal. Rptr. 596, 605 (Cal. App. 1990), review denied (1990).

[70] 221 Cal. App.3d at 1617, 271 Cal. Rptr. at 605.

[71] 336 A.2d 750 (Super. Ct. N.J. 1975), rev’d on other grounds, 351 A.2d 337 (N.J. 1976).

[72] 336 A.2d at 391.

[73] Georgia v. Tennessee Copper Co., 36 U.S. 230, 237 (1907).

[74] Oklahoma v. Cook , 304 U.S. 387, 396 (1938).

[75] It was also in issue in other states. In February 1996, one month before Louisiana’s filing, Mississippi Governor Kirk Fordice sued Mississippi Attorney General Mike Moore to stop the Mississippi suit. The action was not resolved in Attorney General Moore’s favor until March 13, 1997. In West Virginia, one of the four other states to precede Louisiana in filing, Governor W. Gaston Caperton sued West Virginia Attorney General Darrell McGraw to stop that state’s suit. TIME MAGAZINE, March 11, 1996.

[76] Memorandum in Support of Exception of No Right of Action, April 18, 1997. This exception was rejected. Ruling of Judge Wilford D. Carter, Jan. 10, 1997. An interlocutory appeal of the matter was pending at the time of the MSA. Louisiana had prevailed on a similar issue in its action based on costs of asbestos abatement in public buildings. Ieyoub ex rel. Louisiana v. W.R. Grace & Co.- Conn., et al., No. 95-3722 (Dist. Ct., Calcasieu Parish May 12, 1997), writ denied.

[77] 221 Cal. App.3d at 1618, 271 Cal. Rptr. at 606.

[78] Cf. Article XII, § 13, La. Constit. of 1974 (prohibiting prescription against the State unless express exceptions exist).

[79] E.g., Green v. Mansour, 474 U.S. 64, 68 (1985); Dellmuth v. Muth, 491 U.S. 223, 228 (1989).

[80] Atascadero State Hospital v. Scanlon, 473 U.S. 234, 239-240 (1985) (quoting earlier cases). Twice in recent years the Supreme Court has overruled precedents that allowed actions to go forward against States. Seminole Tribe of Florida v. Florida, 116 S.Ct.1114 (1996) (overruling Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989); Welch v. Texas Department of Highways & Public Transport., 483 U.S. 468 (1987) (overruling Parden v. Terminal Railway, 377 U.S. 184 (1964)). Welch expressly based its holding on the absence of a clear statement from Congress to abrogate traditional state authority.

[81] In some tobacco cases filed by states, courts have relied on state Medicaid statutes to limit causes of action to recover Medicaid costs. Iowa ex rel. Miller v. Philip Morris Inc., 577 N.W.2d 401 (Iowa 1998); State of Maryland v. Phillip Morris Inc., 1997WL540913, No.9612317/CL211487 (Circ. Ct., Baltimore Cty. May 21, 1997); McGraw et al. v. American Tobacco Company, et al., Civil Action No. 94-C-1707 (letter ruling of February 13, 1997) (West Virginia case). Unlike the Texas and Louisiana cases, these tobacco cases did not expressly put in issue the state’s common law right of action based on its quasi-sovereign interest in the health, safety, and welfare of its people. Only the Texas case expressly discusses such an interest.

[82] Texas Order, supra note 50, at 6.

[83] Id. at 6-7.

[84] Id. at 7.

[85] Id. at 9-10.

[86] Maine v. M/V Tamano, 357 F. Supp. 1097 (D. Me. 1973); Maryland v. Amerada Hess Corp., 350 F. Supp. 1060 (D. Md. 1972). Maine v. M/V Tamano was cited with apparent approval by the Fifth Circuit in United States v. Dixie Carriers, Inc., 736 F.2d 180, 186 n.11 (5th Cir. 1984).

[87] Hawaii v. Standard Oil Co. of California, 301 F. Supp. 982, 987 (D. Hawaii 1969), rev’d on other grounds, 431 F.2d 1282 (9th Cir. 1970), aff’d, 405 U.S. 251 (1972); Selma Pressure Treating Co., Inc. v. Osmose Wood Preserving Co. of America, Inc., 221 Cal. App.3d 1601, 1617, 271 Cal. Rptr. 596, 606 (Cal. App. 1990) (“Where confronted with the issue, the courts have accorded the State the right to seek money damages based upon such interest.”).

[88] North Dakota v. Minnesota, 263 U.S. 365, 374-76 (1923).

[89] Texas Order, supra note 50, at 17-18. Doubts about the availability of damages in parens patriae actions have arisen in cases in which the parens patriae action seeks monetary recovery not from an injury to the people of the state but only from specific injuries to specific individuals. Bachynsky v. State, 747 S.W.2d 868, 870 n.8 (Texas App. 1988), writ denied (1988).

[90] Part II.C supra .

[91] Though several state tobacco suits contain viable UDAP claims. See Minnesota ex rel. Humphrey v. Philip Morris, Inc., 551 N.W.2d 490 (Minn. 1996) (granting Blue Cross standing to sue tobacco defendants under consumer protection theories). But see Texas Order, supra note 50, at 22- 23.

[92] The industry’s aggressive defense tactics against Attorneys General discouraged Colorado from filing at the time. Joan Beck, Deadly Defense: Tobacco Firms Ponder New Legal Strategy, DALLAS MORNING NEWS, Feb. 11, 1996. Wisconsin’s Attorney General stated that he would wait to see how the other states did before filing suit. Paul Norton, Doyle: Wait, See on Tobacco Suit, THE CAPITAL TIMES, Feb. 26, 1996. He stated:

So we’ve made the decision to wait and see if these cases get through the preliminary stages, and to see how they develop before we really come to terms with a decision on whether or not we're going to invest this kind of money [in the litigation].

New Hampshire’s Attorney General may have spoken for many of them when he said that New Hampshire could just sit it out and sign on when and if the states win. Norma Love, Associated Press Political Service, Democrats: New Hampshire Should Sue Tobacco Companies, Apr. 2, 1996, 1996WL 5375466. New Hampshire held off “because the other states are taking the lead.” According to that state’s Attorney General, “It isn't necessary to bring an action today. There's no reason to spend our resources when it's being competently handled by others.” Id. Ohio’s Attorney General volunteered, “Many of the legal theories being used in the lawsuits are untested and unproven.” Bob Van Voris, AGs’ Claims Mere Smoke? NAT’L L.J., Apr. 28, 1997, p. A1. In an 88 page report completed in October 1996, the Alabama Attorney General’s task force concluded that the legal arguments advanced by the state attorneys general are “at best weak and at worst bizarre.” William H. Pryor, Jr. et al., Report of the Task Force on Tobacco Litigation 5, Montgomery, Ala. (Oct. 2, 1996).

[93] Dec. 15, 1998, p. B4.

[94] E.g., The Louisiana Unfair Trade Practices and Consumer Protection Law (“LUTPA”),La. R.S. 51:1401 et seq. (“LUTPA”).

[95] 458 U.S. at 602.

[96] Note 13 supra.

[97] The states’ tobacco litigation complaints generally contain several allegations of breach

of legal duties.