Public litigation is being privatized as public entities turn to private actors to perform, and sometimes to pay for, litigation on behalf of the state and federal governments. Consider the following examples:

• The U.S. Department of Justice hires David Boies to lead antitrust litigation against the Microsoft Corporation.
• The National Credit Union Administration (NCUA) hires two private law firms to represent it in litigation against large banks concerning toxic mortgage securities. One of those firms boasts “long-standing and continuous representation of the NCUA in various matters.”
• Multiple states hire private attorneys to represent them in litigation against tobacco companies in exchange for a portion of the proceeds.
• After the state attorney general refuses to sue, the Nevada governor creates a “Constitution Defense Fund,” supported by private donations, to pay for costs associated with prosecuting the state’s challenge to the Affordable Care Act (ACA). Other states’ challenges to the ACA are handled, in part, by a private firm and financed by a private lobbying group.
• Private citizens, many from out of state, bankroll a special prosecutor’s efforts to target topless bars in Memphis.

Ben & Jerry’s ice cream company contributes $1 from every purchase at certain locations to support the defense of Vermont’s law requiring special labels for food containing genetically modified organisms. Ben & Jerry’s recently committed to using non GMO ingredients in its own products. . . .

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