Introduction

The question of how a state attorney general should defend the administrative and legislative decisions of other state decision makers is a recurring one that has generated substantial litigation and some academic review. The general rule is that AGs are given great leeway in making defense decisions as long as they do not foreclose the ability of other state actors to intervene.

Largely beginning with the litigation over same-sex marriage, the issue of a duty to defend by the AG has taken on greater prominence. The Shaw law review article discusses the theories behind an AG's refusal to defend a state statute or constitutional provision. The then-AGs of CO and IN argue that AGs should defend such statutes and provisions - even when they disagree with them on the merits - except in the rarest of circumstances. The OH AG took yet another approach in the Supreme Court, namely, filing briefs on both sides of an issue. [Half of the class will be assigned the Shaw article and the other half will be assigned the Zoeller article.]

The remaining examples show that AGs on both sides of the political spectrum are willing to refuse to defend the state in various circumstances.