Litigating the Public Interest in the Gilded Age: Common Law Business Regulation by Nineteenth-Century State Attorneys General

Paul Nolette, Marquette University

Accepted Version. Polity, Vol. 44, No. 3 (2012) 373-399. DOI: 10.1057/pol.2012.8. © 2012 Palgrave Macmillan. Used with permission.


Heeding recent calls to explore the contributions of creative political actors other than federal judges to the process of American legal development, this article examines the role of state attorneys general (SAGs) during the period of rapid industrialization of the late nineteenth and early twentieth centuries. Consistent with recent revisionist accounts concerning the extent of government power during this era of supposed "laissez-faire," I find that SAGs during this period actively and creatively employed ancient common law legal theories in new ways to address the emerging corporate order during this time. Relying on a review of state court cases and newspaper accounts from the period, I examine how SAGs pursued the "public interest" by seeking injunctions against businesses and even corporate dissolution through their use of public nuisance and quo warranto theories. This litigation served as a form of regulation through litigation at a time in which administrative solutions were lacking and also influenced statutory developments during the period.