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Publication Date

2012

Abstract

State attorneys general (SAGs) have been individually
and collectively active on many legal and regulatory fronts
in recent years. One of those activities has been the filing
of amicus curiae briefs in the United States Supreme

Court, especially in cases impacting the states and
federalism doctrine. Frequently SAGs will join in one
amicus brief, and briefs signed by forty or more states are
not uncommon. This phenomenon has been the subject of
attention by legal scholars and political scientists, but the
normative jurisprudential significance of such briefs has
not. In their opinions, the Justices vary in how much legal
weight, if any, they give such briefs. The issue is
particularly acute in cases where significant numbers of
states take a position by amicus brief against the apparent
state interest and in favor of the federal or national
interest. For example, in 2009 the Court held in
McDonald v. City of Chicago that the Second
Amendment's individual right to bear arms applied to the
states. Thirty-eight states filed an amicus brief supporting
that application, which was noted and appeared to be
given significance by the majority opinion. A dissent,
though, declined to give weight to that brief and expressed
puzzlement that SAGs would ask the Court to limit the
regulatory options available to states.
This Article addresses the jurisprudential weight SAG
amicus briefs should be given by the Court. It first
considers formalism and functionalism as paradigms for
federalism doctrine and discusses whether amicus briefs
by SAGs are relevant at all under either viewpoint. It next
focuses on those briefs that take a position against the
apparent state interest and addresses whether and to what
extent that expressed position should be relied upon by the
Court. The Article concludes by arguing that such amici
should play a role, albeit a limited one, in the development
of federalism doctrine by the Court.

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