Parens Patriae and The States’ Historic Police Power

Class actions have long been contracting as procedural vehicles in mass tort litigation. At the same time, parens patriae actions brought by state attorneys general for injuries to their state’s citizenry have been expanding. This form of public dispute has emerged as a full-fledged alternative form of aggregate litigation in mass torts. The use of this public alternative is already widespread in consumer, antitrust, environmental, and health law cases. Despite the widespread use of parens patriae litigation by states, the source of the power to sue in this way is vague and ill-defined. Courts have struggled to articulate and explain the source and scope of the state’s power to bring mass tort suits for injuries to the state’s populace, sometimes reaching seemingly contradictory results. Although the use of parens patriae power in mass tort litigation has been both praised and criticized by complex litigation scholars, commentators have largely overlooked the historical and constitutional functional role of parens patriae litigation. This Article fills that gap by examining the states’ parens patriae power from the Framing to the modern era in order to excavate the doctrine’s historical roots and purpose in our constitutional structure. It debunks the false history used by modern courts to justify the doctrine’s existence, suggesting courts have relied on a faulty foundation to expand the doctrine. In so doing, this Article makes space for a new foundation for parens patriae litigation rooted in the historic police powers of the states. The Article argues that the historic police powers of the states are inextricable from parens patriae power. Modern mass tort litigation brought by states is thus deeply connected to federalism in a way that traditional class actions are not.