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124 Yale L. J. 2100 (2014-2015)
Fifty States, Fifty Attorneys General, and Fifty Approaches to the Duty to Defend

handle is hein.journals/ylr124 and id is 2154 raw text is: NEAL DEVINS & SAIKRISHNA BANGALORE PRAKASH
Fifty States, Fifty Attorneys General, and Fifty
Approaches to the Duty To Defend
A B S T R A C T. Whether a state attorney general has a duty to defend the validity of state law is
a complicated question, one that cannot be decided by reference either to the oath state officers
must take to support the federal Constitution or the supremacy of federal law. Instead, whether a
state attorney general must defend state law turns on her own state's laws. Each state has its own
constitution, statutes, bar rules, and traditions, and not surprisingly, the duties of attorneys gen-
eral vary across the states. To simplify somewhat, we believe that there are three types of duties.
One set of attorneys general has a duty to defend state law against state and federal challenges,
while a second group has no duty to defend state law in such scenarios. A third cohort of attor-
neys general has a power (and in some cases a duty) to attack state statutes of dubious validity.
They may (or must) proactively file suit to obtain judicial resolution of constitutional questions.
Given that these duties vary across the states, politicians (including attorneys general) who
blithely conclude that all state attorneys general must defend all state laws or, conversely, that all
may refuse to defend whenever they believe a state law is unconstitutional evince a lamentable
indifference to the power of states to craft an office that suits their particular needs. As the same-
sex marriage debate reveals, categorical statements about whether state attorneys general must
(or must not) defend bars on same-sex marriage are usually little more than self-serving sound
bites from elected, politically ambitious attorneys general, intended for constituents focused on
policy outcomes rather than legal questions. With Democrats and Republicans squarely divided
on issues like same-sex marriage, gun control, and campaign finance, we predict that attorneys
general will increasingly seek political advantage by refusing to defend (or insisting on the de-
fense of) laws that divide the parties. We also foresee that failures to defend will be especially
likely to occur in states where the attorney general is of a different political party than the gover-
nor, legislature, or the preceding attorney general.
A U T H O R S. Neal Devins is Goodrich Professor of Law and Professor of Government, College
of William and Mary. Saikrishna Bangalore Prakash is James Monroe Distinguished Professor of
Law & Horace W. Goldsmith Research Professor, University of Virginia Law School. Thanks to
Adam Adler, Emily Barnet, Rachel Bayefsky, John Harrison, Jonathan Mitchell, Kevin Newsom,
and Kate Shaw for helpful comments and conversations. Thanks to the student participants in
the Yale Law Journal's Contemporary Legal Scholarship Reading Group. Thanks to Jared Kelsen,
Kevin MacWhorter, and Alexander Viana for research assistance. Thanks to the wonderful re-
search librarians at the University of Virginia Law School & Paul Hellyer at the William and
Mary Law School. We are grateful for summer research grants that funded work on this piece.


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