Content uploaded by Banks Miller
Author content
All content in this area was uploaded by Banks Miller on Jun 02, 2016
Content may be subject to copyright.
238 JUDICATURE Volume 93, Number 6 May-June 2010
It is well-established that the U.S. Solicitor General is
among the most successful of the parties that appear
before the U.S. Supreme Court.1However, scholars
have paid little attention to
the recent development of
state-level analogues, the
state solicitors. In fact, with
one exception,2there is no
scholarly exploration of
these actors who are cur-
rently established in 32
states. This article describes
the reasons why the states have created solicitor’s offices—
a process that began in earnest in the late 1980s—and
sheds some light on the ways in which these offices oper-
ate. Besides being important to the states in their litigation
efforts, understanding the state solicitors will also allow us
to better grasp the extent to which the success of the Solic-
itor General is uniquely determined by the court in which
the solicitor advocates and the resources available to his or
her office.
The article first provides a detailed description of the
state solicitors’ offices based on interviews with former
state solicitors and the scant literature that exists on them.
Second, it analyzes the characteristics of states that led the
effort to create state solicitors offices in the early 1990s in
an effort to understand what leads a state to establish
these offices. In doing so it utilizes the State Supreme
Court Data Project, which contains data on virtually every
case heard by the state supreme courts between 1995 and
1998.3The article then discusses how solicitors may aid a
state’s litigation efforts and proposes an agenda for future
research of these little-known actors.
Describing the solicitors
State solicitors are defined here as the state’s chief appel-
late attorney with, at the very least, the authority to super-
vise some civil appeals by the state to the state supreme
court, although in reality solicitors will also focus some of
their energies on the federal appellate courts and the U.
S. Supreme Court. For the most part, states bifurcate the
appellate process between civil and criminal cases—and
in most states the attorney general has created a position
that is in charge of overseeing criminal appeals that is
separate from the office of
a state solicitor.4
The need for state solici-
tors is also the result of the
internal organization of
most attorneys’ general
(AG’s) offices. In most
states, the AG has only
appellate authority in crim-
inal cases, and is not responsible for trying cases at the
trial level, a responsibility usually delegated to a district
attorney. On the civil side, the AG has much broader
authority over the litigation process, being in charge of
most civil cases in which the state is a party from the trial
stage all the way up to the state supreme court. As Layton
notes, the greater complexity on the civil side means that
responsibilities are often divided along substantive lines,
with individual chiefs in charge of particular appellate
areas such as tax law or child support enforcement. This
means that there is a greater need for the coordination of
arguments on the civil side than there is on the criminal
side, since, for instance, the appellate chief in the tax divi-
sion may make an argument that makes victory more
Describing the
State Solicitors
General
by Banks Miller
The author would like to thank Larry Baum, Elliot Slotnick and Jan Box-
Steffensmeier for their helpful comments and Dan Schweitzer and six anony-
mous former state solicitors for insight and information into the operation
of solicitors’ offices.
1. See, for instance, Lincoln Caplan, THE TENTH JUSTICE: THE SOLICITOR
GENERAL AND THE RULE OF LAW (New York: Alfred A. Knopf, 1987); Rebecca
Mae Salokar, THE SOLICITOR GENERAL: THE POLITICS OF LAW (Philadelphia,
PA: Temple University Press, 1992); James Spriggs and Paul Wahlbeck, Ami-
cus Curiae and the Role of Information at the Supreme Court, 50 AM. J. POL. SCI.
365 (1997); Kevin McGuire, Explaining Executive Success in the U.S. Supreme
Court, 51 POL. RES. Q. 505 (1998).
2. James Layton, The Evolving Role of the State Solicitor: Toward the Federal
Model? 3 J. OF APPELLATE PRAC. 533 (2001).
3. The State Supreme Court Data Project is available at
http://www.ruf.rice.edu/~pbrace/statecourt/. The data set contains almost
all state supreme court decisions from every state supreme court between
1995 and 1998. The single limitation is that the investigators stopped coding
cases after they had coded 200 cases in a given state in a given year.
4. Supra n. 2.
Thirty-two states now have solicitors
general, but little attention has been
paid to these justice system actors. Why
were solicitor’s offices created and what
do the state solicitors do?
likely in the case at hand or in tax
cases in general but that makes it
more difficult for the state in other
areas of law.
Given these organizational needs,
one of the few consistencies among
states with respect to the office of a
solicitor is that they are primarily
involved in civil cases. The term
“state solicitor” is one that I borrow
from Layton,5who notes that states
use a variety of names for the office
of a chief appellate attorney ranging
from state solicitor general to chief
of the civil division; thus, state solici-
tor is an omnibus term meant to
refer to all of these offices.
Most state solicitors have a back-
ground that suggests that they are or
will become elite members of the
legal profession.6Many are former
federal appellate clerks, several have
been former Supreme Court clerks,
and several have served as clerks on
state supreme courts. Further, many
move on to important positions, as
several are now federal appellate
court judges, state supreme court jus-
tices, or occupy other high-level
elected positions such as state attor-
ney general.
Interestingly, women have been
particularly successful securing posi-
tions as state solicitors—positions
that have catapulted them onto state
supreme courts in at least two
instances: Virginia Linder in Ore-
gon and Victoria Graffeo in New
York. Indeed, Layton7notes that dur-
ing the 1996 Supreme Court term
women argued 14 percent of the
cases before the Court, but that
women argued 44 percent of the
cases in which state attorney general
www.ajs.org JUDICATURE 239
5. Supra n. 2.
6. Tony Mauro, Solicitous Behavior, The Ameri-
can Lawyer, August, 1, 2003, at 1.
7. Supra n. 2.
State solicitors are the
state’s chief appellate
attorney with the
authority to supervise
some civil appeals to
the state supreme
court, as well as federal
appellate courts and
the U.S. Supreme Court.
240 JUDICATURE Volume 93, Number 6 May-June 2010
offices were involved.
Partially, the invisibility of the
state solicitors in the academic and
professional literatures is a result of
the fact that these offices are recent
creations resulting from two rela-
tively recent trends. First, the states
have seen the number of civil
appeals increase steadily since the
1970s, particularly as Congress
devolved authority over many pro-
grams to the states.8This devolution
of authority in turn led the states to
begin their own regulatory regimes
or sue the federal government to
force it to keep its commitments.9
However, as Layton10 stresses, the
need for an appellate specialist in
the AG’s office is not only a result of
increasing numbers of lawsuits and
regulatory action, it is also a by-prod-
uct of the increasing complexity of
civil appeals in the state courts. Par-
tially this is because the states them-
selves turned away from federal
courts that they perceived as hostile
to their interests and began to look
toward their own state courts to help
them with their new regulatory
responsibilities, and partially this is
because non-governmental litigants
turned to the state courts to enforce
their rights.11 To summarize: “The
recent development of state solici-
tors whose work more closely paral-
lels that of the Solicitor General
was…prompted by the increase in
appellate workload, the increased
complexity of cases on appeal, and
the increasing risk of loss.”12
The relationship between a state
AG and a state solicitor differs from
the relationship between the Solici-
tor General and the Attorney Gen-
eral at the federal level. Whereas the
Solicitor General typically owes his
allegiance to the president who
appointed him or her,13 in the states
it is the AGs who decide if there will
be a solicitor14 and who that person
will be. Thus, there is a close rela-
tionship between most state solici-
tors and the attorney general who
appoints them. The closeness of this
relationship is reflected in the state-
ments of several former solicitors
indicating that they, where possible,
attempt to advance the agenda of the
AG and that support from the AG is
critical to the success of the office.15
Similarly, the Solicitor General is
frequently found to be in policy con-
gruence with his or her appointing
president, except in cases in which
the Solicitor General is invited to
participate before the Court, in
statutory cases, and in cases in which
the Solicitor General is tasked with
defending the enforcement powers
of the federal government.16 Most of
the cases studied here, being cases in
which the state participates as a party
to litigation, are cases in which the
state solicitor will find him or herself
defending the enforcement powers
of the state government.
I have also examined cases in
which states with solicitors have par-
ticipated as amici before their state
supreme courts in an attempt to bet-
ter understand how similar their
relationship to their state supreme
courts is to the Solicitor General’s
relationship to the Supreme Court.
In general two things are readily
apparent. First, state solicitors
between 1995 and 1998 participated
significantly less frequently as amicus
than did their federal counterpart.
No state filed in more than 11 per-
cent of the available cases on a state
supreme court’s docket and the aver-
age rate of filing was just under 3
percent. Compare this with a rate of
over 20 percent of Supreme Court
cases for the Solicitor General dur-
ing the Clinton presidency (the most
comparable era of study).17 Second,
and similar to their participation as
parties, the solicitors, and the states
in general, are most frequently con-
cerned with protecting their regula-
tory and enforcement powers and
less with the so-called “agenda cases”
used by the Solicitor General to
advance presidential policy.18
In general it is fair to say that state
solicitors have less independence
than does the Solicitor General.19 It is
true that at the state level, as with the
relationship between the AG and the
Solicitor General at the federal level,
the state solicitor is more likely to be
a highly qualified lawyer first and a
politician second. In many cases the
reverse is true of the state AGs, most
of whom must win statewide elections
to become the AG and are not gifted
appellate advocates.20
Size and centralization
The state solicitors’ offices them-
selves can be divided along two dif-
ferent axes: size and degree of
centralization. In the bigger offices,
the state solicitor’s office is closely
analogous to the Solicitor General’s,
with many assistants and broad par-
ticipation in most of the cases in
which the state is a litigant.21 Exam-
ples of states with this type of office
include Illinois and New York. In the
Reexamining the Role of the Solicitor General in Filing
Amici, 89 JUDICATURE 317 (2006). It is difficult to
know the extent to which the state supreme
courts invite the participation of the state solici-
tors in cases, particularly given that I am working
only with cases in which the state’s participation
is required as a party. Three-quarters of the cases
that the states with solicitors participate in as
amicus are either criminal cases, cases involving
the general regulatory power of another govern-
ment (like a municipality), tort cases, or contract
cases.
17. Rebecca Deen, Joseph Ignagni, and James
Meernik, The Solicitor General as Amicus, 1953-
2000: How Influential? 87 JUDICATURE 60 (2003).
18. Richard Pacelle, Jr., BETWEEN LAW AND POLI-
TICS: THE SOLICITOR GENERAL AND THE STRUCTUR-
ING OF RACE, GENDER, AND REPRODUCTIVE RIGHTS
LITIGATION (College Station, TX: Texas A & M
Univ., 2003); see particularly chapter 5. As Pacelle
notes, supra n. 16, the agenda cases tend to cluster
in civil liberties and non-criminal civil rights cases,
but as Table 2 illustrates the states are simply not
involved in many of these kinds of cases, at least as
parties.
19. Supra n. 6.
20. Supra n. 15.
21. Supra n. 15.
8. Timothy Conlan, And the Beat Goes On: Inter-
governmental Mandates and Preemption in an Era of
Deregulation, 27 PUBLIUS: THE J. OF FEDERALISM 129
(1992).
9. Cornell Clayton, Law, Politics and the New Fed-
eralism: State Attorneys General as National Policymak-
ers, 56 REV. OF POL. 525 (1994).
10. Supra n. 2.
11. Paul Chen, The Institutional Sources of State
Success in Federalism Litigation Before the U.S.
Supreme Court, 25 LAW. & POL’Y455 (2003).
12. Supra n. 2, at 537.
13. Salokar, supra n. 1.
14. In some states the solicitor is authorized by
statute, like the Solicitor General, but in other
states there is no authorizing statute and the posi-
tion exists at the discretion of the attorney gen-
eral. In some states the position will come into
existence and then disappear when a new AG is
elected, though this pattern is relatively rare. See
Mauro, supra n. 6.
15. Marcia Coyle, Justices Listen to a Key Voice:
State Solicitors General Get More Time in High Court,
National Law Journal, April 7, 2008, at 1.
16. For a good discussion of the congruence
between the president’s policy positions and
those of the Solicitor General, see Richard
Pacelle, Jr., Amicus Curiae or Amicus Praesidentis?
www.ajs.org JUDICATURE 241
smaller offices, the solicitor acts as
something closer to a traditional
appellate chief—these offices have
fewer assistants and tend to play a
more advisory role in most cases,
although they will handle the most
important appeals themselves. In the
smaller offices, the focus is clearly on
the three courts most important to
any state: the Supreme Court, the
applicable federal circuit court, and
the state supreme court. Cases that
may be important to the state in the
federal district courts or in the inter-
mediate state appellate courts are
often left to others.22 An example of
a state with this smaller type of office
is Alabama.
There are two basic models with
respect to the degree of control over
the appellate process.23 In central-
ized offices a separate appellate
office under the direction of the
solicitor performs all the appellate
work. In the decentralized model,
which predominates among the
states, the solicitor and her deputies
edit briefs authored by other attor-
neys in the AG’s office and set up
training programs to improve the
state’s work product. Offices that are
centralized will also tend to be big.
There are also two career tracks
within state solicitor’s offices. Solici-
tors themselves, tied as they are to
the electoral fortunes of an AG, typ-
ically stay only for four-to-eight
years. Similarly, some of the assis-
tants in a solicitor’s office will be
short-term employees, spending
three-to-five years gaining valuable
experience practicing before appel-
late courts before moving on to
more lucrative opportunities in pri-
vate practice. On the other the end
of the spectrum, many assistants in a
solicitor’s office will make a career
of it. High-quality lawyers are willing
to work in state solicitors’ offices for
less than the market will bear for
their services because of the docket
typically handled by the office: it is
varied, interesting, and important.24
Who has SG offices?
Table 1 lists the states that are
known to have established solicitor-
like offices, the years those offices
were established, and, where possi-
ble, the authority possessed by a
state’s solicitor. It is important to
note that the authority is not always
clearly defined.
It is exceedingly difficult to deter-
mine the exact dates of establish-
ment for two reasons. First, many
solicitors are not authorized by any
statute but are instead creations of
the attorney general and so can
come into and out of being with a
particular AG. Though this type of
fluctuation has decreased, it never-
theless makes establishing dates of
Table 1. Descriptive information
on the state solicitors
Year Supervise
State Title of position established all appeals
Alabama Solicitor General 2003+ No
Alaska Unknown 2003+ Unknown
Arizona Solicitor General 1994 Yes
California Solicitor General 2003 Unknown
Colorado Solicitor General 1974 Yes
Connecticut Unknown 2003+ Unknown
Delaware State Solicitor 1969† Unknown
Florida Solicitor General 1999 Yes
Hawaii Unknown 2007 Yes
Illinois Solicitor General 1987 Yes
Indiana Solicitor General 2005 Unknown
Kansas Solicitor General 1999 Yes
Maine State Solicitor 1997 Unknown
Maryland Solicitor General 2002 No
Michigan Solicitor General 1939 Yes
Minnesota Solicitor General 1992 (disappears No
after 1998 until 2009)
Missouri Appellate Counsel/ 1994 Yes
Solicitor General
Nebraska Solicitor General 2003+ Yes
Nevada Solicitor General 2008 Unknown
New Jersey Unknown 1999 Unknown
New York Solicitor General 1981 Yes
North Carolina Solicitor General 2004 Unknown
North Dakota Chief, Civil 2003 Unknown
Litigation Division
Ohio Solicitor General 1994 Yes
Oregon Solicitor General 1970 Yes
Pennsylvania Chief, Appellate Unknown (pre-1994) Yes
Litigation
South Dakota Deputy AG In Charge 1994 Yes
of Appeals
Tennessee Solicitor General 1990 Yes
Texas Solicitor General 1999 Yes
Utah Solicitor General 1992 No
Vermont Civil Division Chief 1994 Yes
Virginia Solicitor General 2000 Yes
Washington Solicitor General 1994 Yes
Information comes from James Layton,
The Evolving Role of the State Solicitor: Toward the Federal Model?
3 J. OF
APPELLATE PRAC. 533 (2001) , Dan Schweitzer, State SGs, <dschweitzer@NAGG.org>, July 19, 2007.Pr ivate email
message to author, and searches on Lexis/Nexis.
In the “Year Established” column, 2003+ indicates the office was established sometime after 2003.Year established
counts time since the continuous presence of a state solicitor’s office (see text for a definition).
† According to Layton, as of 2001 Delaware did not have a solicitor although searches indicate the continuous
presence of one as early as 1969.
22. Supra n. 15.
23. Dan Schweitzer, State SGs,
dschweitzer@NAGG.org, July 19, 2007. Private
email message to author.
24. Supra n. 6.
242 JUDICATURE Volume 93, Number 6 May-June 2010
existence difficult. Many of these
offices were established several
times. For instance, this appears to
have been the case in both North
Dakota and Washington, which had
earlier iterations of the office. There
are also instances in which the office
appears briefly and then disappears.
For example, it appears that in
Arkansas there was a state solicitor
between 1987 and 1990, and then
the office disappeared and is yet to
return.
The dates of establishment in the
table are based on the following cri-
terion: whether or not a solicitor’s
office, once in existence, appeared
in a case at least once every five
years.25 This is a relatively loose stan-
dard that should tend toward the
over-counting of solicitor’s offices,
since one would expect at least this
minimal amount of activity in any
state where a solicitor’s office has
been created and is active. This table
should be considered tentative
because of the difficulty inherent in
determining the presence of an
office that exists at the whim of the
attorney general in most states.
Second, in some states attorneys
called solicitors existed in the early
twentieth century but they did not
have the duties and responsibilities
that we currently associate with a
solicitor general-like actor.26 Thus,
the table presents information that is
current and accurate as best as can
be gathered from existing publica-
tions, discussions with former solici-
tors, and searches in the Lexis/Nexis
database. Furthermore, determining
the extent of authority for a solicitor
can also be difficult because just as
the existence of the office can fluctu-
ate, so too can the authority of that
office. The norm, however, appears
to be to give state solicitors broad
authority over the appellate practice
within states.
Three waves
A good place to begin trying to
understand the importance of state
solicitors is to discern the reasons
why states create these offices. It
should be noted that part of the
explanation is probably not system-
atic. Some state attorneys general
simply felt a need for better state
level advocacy and took the initiative
in creating a position to help the
state perform more adequately on
appeal in both the state and federal
courts.27
A pattern emerging from Table 1
is that solicitor’s offices were estab-
lished in three distinct waves. States
that were early adopters created the
offices before 1995, several states cre-
ated offices in the late 1990s and in
2000, with a final large group moving
to create the offices after 2003.
There are 16 states that were early
establishers and exploring how they
compare to the others sheds some
light on the motivation for the cre-
ation of these offices.28
It is important to explore relevant
differences at both the state and case
level when trying to understand the
establishment of solicitor’s offices.
First, it may be that only certain
states possess the requisite resources
necessary to establish such an office.
Second, it is plausible that the early
adopter states must handle cases that
are qualitatively different than those
in states that lagged in the creation
of these offices. Though establishing
state and case level factors that
caused a state to create a solicitors
office in the first place is difficult,
given the data that follows the cre-
ation of the office in early adopter
states, a comparison of the two types
of states is nevertheless suggestive.
Because it is necessary to collect
both state and case level data to
understand the solicitors I have
turned to the State Supreme Court
Data Project (SSCDP).29 Further,
because there are over 4000 civil
cases in which the state is involved as
a litigant in the states between 1995
and 1998 and because I had to read
each case to gather the relevant
attorney data, I sampled the cases.30
The initial sample consisted of 900
cases, which was narrowed to 845
after instances in which the state was
on both sides of the case were elimi-
nated. Most importantly, the sample
of cases is substantially similar to the
population with the exception that I
purposely sampled more cases from
states that were early adopters and
more cases involving amicus partici-
pation in general. To the data set I
have added a number of state level
variables that may affect the likeli-
hood of creating a state solicitor’s
office.31 Table 2 provides a basic out-
line of the differences between states
that established solicitors by 1994
and those that did not.
in order to generate the measure it was necessary
to count appearances backwards for each attorney
in each case for five years. Experience is coded as
the number of previous appearances by the most
experienced attorney on a litigation team in the
state supreme court in the five years prior to the
case being coded. Though the most experienced
attorney is usually the measure used in political
science others are plausible. I tested the relation-
ship using the mean number of appearances for
each side as well as the total number of appear-
ances for each side and the relationship described
in the article does not change.
31. Many of the state level characteristics
appearing in the table are self-explanatory. The
entries for reappointment, retention election,
non-partisan election, partisan election and life
tenure represent the percentage of states in each
category using that type of system to retain jus-
tices on the bench once they have served an initial
term. Divided government measures those states
in which the legislature is controlled by one party
and the executive is controlled by another. Court
resources is a principal component factor score of
the salary paid to state supreme court justices, the
number of law clerks assigned to each justice and
the number of staff attorneys employed by a state
supreme court. This data was gathered from Carol
Flango and David Rottman, APPELLATE COURT
PROCEDURES (Williamsburg, VA: National Center
for State Courts, 1998). Higher scores indicate
greater resources. All of the other state level char-
acteristics are self-explanatory.
25. Continuous operation means that the solic-
itor’s office makes an appearance at least every
five years from the date listed in the table. This
standard is an attempt to get around difficulties
noted in the text surrounding the ephemeral
nature of these offices for much of the 20th cen-
tury. Appearances in any court, be it a state level
trial court or the relevant federal circuit court or
the state supreme court, were canvassed for
appearances.
26. Supra n. 2.
27. Interviews with state solicitors in these early
adopter states did not indicate that success in one
particular court motivated the creation of these
offices. That is, the state solicitors interviewed did
not tend to believe that they were hired to focus
exclusively on the state supreme court or the fed-
eral appellate courts.
28. States counted as having established solici-
tor’s offices before 1995 (using the continuous
operation standard) include Arizona, Colorado,
Delaware, Illinois, Michigan, Minnesota, Missouri,
New York, Ohio, Oregon, Pennsylvania, South
Dakota, Tennessee, Utah, Vermont, and Washing-
ton. Including Minnesota in this group is ques-
tionable given the relative inactivity of that office,
but the results described in this paper are robust
to the exclusion of Minnesota as a state having
established a solicitor’s office before 1995.
29. Supra n. 3.
30. The counts for attorney experience (both
state and opponent) are based on a sample of 845
cases. Sampling these cases was required because
www.ajs.org JUDICATURE 243
The most apparent difference
between early adopters and other
states is that the early adopters have
more resources devoted to both
their state supreme courts (as meas-
ured by court resources) and their
own litigation efforts (as measured
by the AG’s budget and number of
attorneys in the AG’s office). Fur-
thermore, the early adopter states
have considerably larger popula-
tions, which may explain their ability
to commit significantly more
resources to litigation. Other than
size and resources the states with
solicitors and those without are sub-
stantially similar in terms of state
level characteristics. Indeed, none of
the state level differences is statisti-
cally significant.
Several factors stand out at the
case level.32 Early adopter states are
significantly more likely to have
cases challenging elections in their
state supreme courts. Furthermore,
the early adopter states are more
likely to be dealing with contentious
state supreme courts as indicated by
the number of cases that are decided
non-unanimously.
Perhaps not surprisingly given
that solicitor’s offices are designed
to capture inherent experience
advantages accruing to the state,
those states that were early adopters
have litigation teams that are signifi-
cantly more experienced than their
opponents, an advantage that disap-
pears if the experience of solicitors is
not included in the calculation.
Therefore, in these early adopting
states the solicitors appear to be ful-
filling the goal of states to have more
experienced litigation teams. This
experience advantage is also note-
worthy given the findings of several
political scientists with respect to the
importance of experience in litiga-
tion.33
To summarize, the early adopting
states tend to have larger popula-
tions, more resources devoted to liti-
gation, more contentious courts, and
more experienced attorneys. They
also have dockets that are slightly dif-
ferent than states that adopted the
solicitor model later or have not yet
adopted that model, given that they
handle more cases involving chal-
lenges to election laws and election
administration, although it is possi-
ble that the very creation of a solici-
tor’s office will have affected these
case-level characteristics.
Winning in court
The ultimate question is whether
solicitors help their state govern-
of previous appearances for each of those attor-
neys before the state supreme court over the pre-
vious five years. The entries represent the
experience of the most experienced attorney for
each side, a practice that accords with the work of
others who have studied attorney experience (see
McGuire, supra n. 1).
33. Kevin McGuire, Repeat Players in the Supreme
Court: The Role of Experienced Lawyers in Litigation
Success, 57 J. OF POL. 187 (1995); McGuire, supra n.
1; Andrea McAtee and Kevin McGuire, Lawyers,
Justices, and Issue Salience: When and How Do Legal
Arguments Affect the U.S. Supreme Court? 41 LAW &
SOC’YREV. 259 (2007). But see Maxwell Mak,
“Repeat Players: A Reexamination of Litigator
Experience at the Supreme Court,” paper pre-
sented at the 2006 Midwest Political Science Asso-
ciation Annual Conference.
Table 2. State and case characteristics
from states considered early
adopters (pre-1995) of the
solicitor model
Characteristic With solicitors Without solicitors
State level
Reappointment 0.25 0.24
Retention election 0.44 0.33
Non-partisan election 0.31 0.24
Partisan election 0.06 0.18
Life tenure 0.00 0.09
AG elected 0.94 0.82
Divided government 0.50 0.58
Attorneys per capita (per thousand) 2.90 2.80
AG budget (in millions) 4.47 3.99
Attorneys in AG’s office 195 133
Court resources 0.11 –0.15
Population (in millions) 6.33 4.97
Case level
State is petitioner 0.36 0.35
Economic regulation 0.57 0.56
Agency action 0.41 0.39
Elections 0.07 0.03*
Privacy 0.04 0.05
First Amendment 0.02 0.03
Amicus brief filed 0.22 0.18
Constitutional issue 0.12 0.12
Number of issues per case 1.35 1.48^
Non-unanimous decisions 0.43 0.26*
State attorney experience 27.75 8.52^
State attorney experience
(Solicitors not included) 9.02 8.52
Opponent attorney experience 2.79 2.82
* difference is significant at p<0.05 (2test); ^ difference is significant at p<0.05 (t-test)
32. Several of the case level characteristics
require explanation. The economic regulation
entry represents the percentage of time in which
the state found itself litigating cases in which
some type of economic regulation (such as deter-
mining the applicability of a corporate tax) was
involved. The agency action entry represents cases
in which action taken by a state administrative
agency (such as a public utilities commission) is at
issue). The constitutional issue entry records the
percentage of the time that the state found itself
facing either a federal or state constitutional chal-
lenge. Dissent rate measures the number of times
that at least one justice on the state supreme court
dissented from the majority holding in a case.
Finally, the attorney experience entries are calcu-
lated by noting the names of each of the attorneys
in a case for each side and counting the number
244 JUDICATURE Volume 93, Number 6 May-June 2010
ments win more frequently. Using
the SSCDP it is possible to answer
the question. States that were early
adopters of the solicitor model won
about 59 percent of their cases
between 1995 and 1998. States that
had not adopted the model by 1995
won approximately 63 percent of
their cases, a difference that is not
statistically significant. One might
suspect that the creation of solicitors
offices has improved state’s litigation
efforts, but it is difficult to draw
inferences from these statistics given
that in the early adopter states solici-
tors could be raising win rates toward
the overall mean level or a simple
regression to the mean could be driv-
ing movement toward the mean. In
other words, it may be that we would
observe movement toward the mean
win rate solely by chance, which
means that attributing change to the
solicitors is simply guess work with
this data. Furthermore, we cannot
discern whether low win rates moti-
vated the establishment of these
offices to begin with without data on
success from before the creation of
these offices. Therefore, it is neces-
sary to understand what win rates
look like before a state adopts the
solicitor model.
Fortunately, six states—Florida,
Kansas, Maine, New Jersey, Texas and
Virginia—established solicitors’
offices immediately after the early
adopters, creating offices in 1997,
1999, or 2000. Unfortunately, in look-
ing at these states no clear pattern
emerges: the states that adopted solic-
itor’s offices between 1997 and 2000
won 67 percent of their cases com-
pared to 62 percent for states that had
not yet adopted the solicitor model—
a difference that is statistically indis-
tinguishable from no difference.
If the states are not motivated to
adopt the solicitor model because it
allows them to win more frequently
in their own state supreme courts,
then it may be that the policy diffu-
sion literature helps to explain the
spread of these offices. Though a
full-blown analysis of the diffusion of
the solicitor innovation is beyond the
scope of this article, one explanation
prominent in the policy diffusion lit-
erature is promising: the theory of
social learning. Scholars have
posited that diffusion is the result of
policy leaders’, in this case state
attorneys general, search to solve
policy problems.34 As noted above,
the policy problem that seemed to
motivate the creation of solicitor’s
offices were the increasing complica-
tion and stakes of state litigation in
the 1980s and 1990s.
A potential forum in which social
learning may have lead to the spread
of the solicitor model are the annual
meetings of state attorneys general
hosted by the National Association of
Attorneys General (NAAG) and in
particular NAAG’s attempts to better
the advocacy of states before the U.S.
Supreme Court through the
Supreme Court initiative.35 Further,
there is evidence that the state AGs
were particularly innovative policy
leaders in the states in the 1990s, as
suggested by their role in state litiga-
tion against the tobacco industry; lit-
igation that ultimately led to a $206
billion settlement in 1998.36
Better legal arguments
How can solicitors help the state per-
form better in court? Interviews and
correspondence with solicitors indi-
cated a surprisingly consistent mes-
sage: sound and consistent legal
argument with an eye toward the pol-
icy implications of decisions and
establishing a long-term relationship
with the state supreme court. As one
solicitor put it: “You are trying to
establish a brand and the key to
establishing a brand is having a uni-
fied message and our brand was hon-
esty and truth.”37
According to a document coau-
thored by several then-serving state
solicitors, there were three major
goals in establishing the office of
state solicitor.38 First, decision mak-
ing needs to be centralized. Central-
ization allows for greater consistency
in advancing the attorney general’s
position in an area of law and in gen-
eral. Second, product control—con-
trol of the quality of briefs and
arguments before a court—is critical
because it allows the state to build a
reputation and relationship with the
court. Third, solicitors are uniquely
positioned to provide training to the
attorneys in the AG’s office on the
special skills necessary for appellate
advocacy.
One striking feature of conversa-
tions with several state solicitors was
their reference to the state as a
repeat player, usually in the context
of the ability of the state to establish
particularly favorable precedents
over time—an opportunity that
exists for states most prominently in
their own courts. Ted Cruz, the for-
mer solicitor of Texas, notes:
You’re going to be up there [the state
supreme court] over and over again.
We have been quite successful in our
state Supreme Court on the issue of
sovereign immunity. Going back to
1999, the office very systematically
looked for good cases to take there and
to build the doctrine to protect the
state interest.39
These types of efforts will cascade
throughout the state’s docket before
a supreme court, as doctrines like
sovereign immunity will serve to pro-
tect the state in multiple legal issue
areas and will make victory easier.
This suggests one area for potentially
34. See, for example, Jack Walker, The Diffusion of
Innovations Among the American States, 63 AM. POL.
SCI. REV. 880 (1969); Christopher Mooney, Modeling
Regional Effects on State Policy Diffusion, 54 POL. RES.
Q. 103 (2001); Frederick Boehmke and Richard
Witmer, Disentangling Diffusion: The Effects of Social
Learning and Economic Competition on State Policy Inno-
vation and Expansion, 57 POL. RES. Q. 39 (2004).
35. I thank two anonymous reviewers for sug-
gesting this as potential explanation for the
expansion of the state solicitor model. For more
on NAAG and the Supreme Court initiative see
http://www.naag.org/supreme_court.php. It is
worth noting that the growth of the solicitor
model began in earnest in the 1980s, which corre-
sponds with the emergence of NAAG as an inde-
pendent group in 1980. Finally, there is a
suggestion that one former solicitor in particular,
Jeffrey Sutton of Ohio, began aggressive advocacy
on behalf of the states in the Supreme Court and
that his success may have gotten the attention of
other attorneys general (see supra n. 6).
36. David Widner and James LaPlant, State Law-
suits against “Big Tobacco”: A Test of Diffusion Theory,
32 ST. & LOCAL GOV. REV. 132 (2000).
37. There are several quotations that are unat-
tributed. These come from interviews with several
former state solicitors in which I promised
anonymity. I interviewed or corresponded with six
former state solicitors from five different states.
38. National Association of Attorneys General
(NAAG), NAAG MANAGEMENT SERIES: EFFECTIVE
MANAGEMENT FOR APPELLATE ADVOCACY (Washing-
ton, D.C.: National Association of Attorneys Gen-
eral, 1995).
39. Supra n. 15 (quoting Texas Solicitor Ted
Cruz).
www.ajs.org JUDICATURE 245
fruitful future research: do the states
increase their win rates over time as
state solicitors are able to build
strong lines of favorable precedent?
Aside from establishing strong
lines of favorable precedent, the
solicitors seem to focus heavily on
establishing a general norm of defer-
ence by the court to the state’s agen-
cies, particularly in their rulemaking
functions. One solicitor elaborated
on this point by mentioning that it is
the duty of the state supreme court
to help the state function—that the
reality is that state government must
have a special relationship with the
state supreme court because they are
all part of the enterprise of govern-
ing the state. He continued by not-
ing: “The judges understand that the
state has to operate. The [AG’s]
office’s view is basically that if the
state has a reasonable position then
it should win, because government
administration has to operate.”
There is some indication that the
solicitors may be especially effective
in more legally difficult or complex
cases. Several solicitors described the
job of being the state’s chief appellate
attorney in terms of simplifying statu-
torily complex areas of law, like tax
codes, and simplifying them in a way
that the state supreme court could
readily understand the consequences
for the state of ruling in one direction
or another. Another described the
process not as one of simplification,
but in terms of coherence and organ-
ization—ultimately coming back to
the notion that the state had to make
consistent legal arguments before the
state supreme court. It is interesting
to note that the data do suggest that
states without solicitors took slightly
less complex cases to their state
supreme courts.
Another way in which the state
solicitors appear to aid states in their
litigation efforts is by appealing cases
selectively. This is manifested in the
recognition that certain cases make
better law for the state than others.
But this selectivity has benefits
beyond only appealing cases in
which the state is likely to be able to
win; it also highlights the importance
of a case. “[S]tate solicitors play a
role much like that of the Solicitor
General: they use their position to
emphasize to the court before which
they are appearing the importance
of a particular case.”40 Thus, the
appearance of a solicitor in a case
might indicate that that case is par-
ticularly important to the AG and
perhaps the state as a whole, and this
alone may improve the chances of
the state in these cases before the
state supreme court. And, as noted
above, at least with respect to amicus
filings the state solicitors are more
selective than their federal counter-
parts—whether this selectivity in
amicus cases leads to greater success
must await further study. The states
are not frequent amicus participants,
largely because of their already over-
whelming workload.
This indication of salience will be
especially strong in cases in which
the state is appealing a ruling from
the lower court.41 This is because in
the overwhelming majority of cases
appealed to a state supreme court,
the state will be the respondent.
Thus, when the state chooses to
appeal it is in a position as a party
more similar to that of the Solicitor
General when he files an amicus
brief. States do not typically appeal
just because they are unhappy with
the outcome at the lower level but
because there is some broader policy
concern at stake.42 Not unexpectedly,
when the state solicitors are appel-
lants they are significantly more suc-
cessful than when they are appellees
(t-test = 1.46, p = 0.07) and, more
interestingly, the difference in suc-
cess as appellant versus appellee is
significant in states with solicitors but
not in states without solicitors. Put
differently, states with solicitors seem
to have a greater relative advantage
in being the appellant than do states
without solicitors, hinting at least
that the selectivity of the solicitors
may be a major factor in their abili-
ties to aid states in their litigation
efforts.
As political scientists have shown,43
the experience of the attorney repre-
senting a party can be a critical com-
ponent of success in appellate
courts. As the comparison of early
adopter states with other states in
Table 2 shows, the states with solici-
tors have significantly more experi-
enced attorneys representing them
than do the non-early adopting
states. It is intriguing to note that
though the early adopter states seem
to be represented by significantly
more experienced attorneys, they do
not seem to prevail in court any
more frequently than the non-early
adopting states.
Finally, the state solicitors are
likely to be able to establish a special
relationship with the justices on a
state supreme court because they
appear so frequently before that
court. Partially this is reflected in the
establishment of a brand before the
court. As one state supreme court
justice says, “The role of the state
solicitor is that, in the most impor-
tant cases, the attorney general is
providing to us a person who is famil-
iar with the way the court addresses
issues and provides reliable assis-
tance, especially if that person holds
the respect of the court.”44 This mir-
rors the comments of one solicitor
who says that the solicitor should be
40. Supra n. 2 at 542.
41. Supra n. 27.
42. Supra n. 27.
43. Supra n. 27.
44. Supra n. 15 (quoting Missouri Supreme
Court Justice Ray Price, Jr.).
There is some indication that
the solicitors may be especially
effective in more legally
difficult or complex cases.
246 JUDICATURE Volume 93, Number 6 May-June 2010
viewed as the authoritative voice of
the state before the supreme court
and that the justices should trust the
solicitor.
To summarize, the solicitors may
be able to help the state prevail in
state supreme courts for a number of
reasons, but among the most likely
are that they are able to make better
legal arguments,45 they help the state
build favorable precedent over time,
they provide information that justices
view as reliable, and their presence is
likely to indicate the importance of a
case to the state’s other elites, includ-
ing judges. Of course, there is one
category of advantage neglected to
this point: ideological explanations.
Policy agreement
Solicitors themselves are reluctant to
admit that success before the court is
a result of policy agreement between
the justices and the AG and/or exec-
utive or that the justices may react
strategically to the presence of the
state as a litigant.46 Instead, the solic-
itors tend to characterize deference
to the state in terms of sound legal
arguments and precedents. To be
sure, in certain circumstances, some
solicitors see that politics play a role
in the decision making of justices
and even in the arguments made by
the attorney general’s office. But
these instances are rare according to
the solicitors, occurring largely when
the AG files an amicus brief and, at
least in some states, primarily in
criminal cases. Of course, this does
not mean that policy agreement
between the position taken by the
AG and the policy preferences of jus-
tices does not play a role. Indeed,
some solicitors note that the cases in
which the state is a party are particu-
larly likely to involve issues of public
interest.47 And one solicitor memo-
rably described the state solicitor’s
office as a “fulcrum between law and
politics.”
Tentative conclusions
This preliminary description of the
state solicitors allows us to draw sev-
eral tentative conclusions. First, it
appears that, to a large extent, solici-
tors themselves believe that their
ability to aid the state in litigation is
premised on their skill in making
better legal arguments to the court
than state attorneys with less appel-
late experience. That state solicitors
are capable of capturing the inher-
ent experience advantages that
should accrue to states is apparent in
the fact that state solicitors boost the
average experience of attorneys rep-
resenting the state by over 300 per-
cent. The advantage of having a
solicitor to represent the state in liti-
gation is that his or her efforts
should build favorable lines of prece-
dent in areas of law like sovereign
immunity that will cascade through-
out the state’s docket.
Second, the states adopted the
solicitor model in three distinct
waves. By analyzing those states that
were early adopters of the model and
comparing them with states in the
other two waves of adoption we have
learned that the early adopting states
were larger, devoted greater resources
to their attorney general, and had
state supreme courts that were signifi-
cantly more contentious than their
later adopting counterparts.
Nevertheless, comparison between
first and second wave adopters fails
to demonstrate that states were moti-
vated to create the solicitors offices
because they were not faring well in
litigation. However, the policy diffu-
sion literature, and in particular a
social learning approach, may offer
useful explanations for the spread of
the solicitor innovation. Scholars will
need to focus on the role played by
state AGs and by the National Associ-
ation of Attorneys General in facili-
tating communication between AGs.
In order to better understand the
state solicitors considerably more
analysis will be necessary. Most
importantly, exploring how theories
of Solicitor General success in the
Supreme Court apply to the state
solicitors will allow us to better
understand both the uniqueness of
the Solicitor General’s advantages
and, just as importantly, to highlight
more precisely the ways in which the
state solicitors aid the states in their
litigation efforts. Another important
avenue of inquiry will be to collect
systematic data on the state solicitors
from each state and longitudinal data
on the states that created the solici-
tors offices to generate a more rigor-
ous understanding of the timing of
the creation of these offices. g
BANKS MILLER
is an Assistant Professor of Political
Science at The University of Texas at
Dallas. (millerbp@utdallas.edu)
45. To understand how state solicitors might
make better legal arguments than the average
attorney representing the state, recall the distinc-
tion between procedural and substantive experi-
ence. State solicitors are appellate procedure
experts as opposed to experts in a specific area of
law, such as tax law. In most appellate courts,
given that the facts of a case are well-established at
the trial court level, substantive issues will not be
as important as procedural and legal issues in the
determination of a case. All else equal, state solic-
itors should be in a better position to make strong
arguments to the court on behalf of the state.
46. But see supra n. 2.
47. Supra n. 23.
