Last month, I made a few videos describing the basic operations of offices of state attorneys general and posted them on the Columbia Law School Website under the AG Library.  (http://www.stateag.org).   In investigating how to post them on other video sites, I came across an interview that I did about the tobacco cases on The Charlie Rose Show on February 16, 1999.

Shortly into the interview - that I scarcely remember - a much younger Jim Tierney says "I think that law suits are a lousy way to make public policy...."   Although my positions have changed on many things in the last decade, my views on that score remain the same.  "Policy ought to be made by elected officials," I said, and litigation should only be filed as a last resort. 

I believe that the tobacco cases were correct because they were a last resort.   Congress had not acted - and indeed has still not acted to regulate tobacco - and that the AG's at the time were courageous in their efforts to bring the truth in their fight to reduce youth smoking.  Smoking rates continue to fall and millions of lives have been saved. 

In the years since, I believe that the AG's continue to be correct to litigate national issues - again as a last resort - when the federal government fails in its duty to protect our citizens from whomever would commit fraud.

Our candidates for President talk about change.  If part of that change is to restore vital federal agencies - such as the FDA, the FTC, the CPSC and the DOJ - to their traditional roles as protectors of the American people, then the AG's will no longer be forced to carry out national litigation.  The AG's will be better able to focus on the problems they are facing at home - crime, immigration, charity regulation, prison reform, education and all of the rest.

I am optimistic that Sen. McCain - who carried the water for the AG's on tobacco - and either of the two Democratic candidates can bring about that change.  When they do, the AG's can reset their priorities back home.   If Washington does not change, then the state AG's will continue to do what they have to do and litigate national issues.

A defense lawyer named Brian Anderson has written an article in this week's Legal Times entitled, "When State Officials Attack."    http://www.law.com/jsp/ihc/PubArticleIHC.jsp?id=1203866386444&pos=ataglance

Mr Anderson is certainly entitled to his views on state attorneys general and his perspective on the history of the office.  After all, the First Amendment protects all of us to rant which is how Bill O'Reilly makes his living.  (Come to think of it, Mr.O"Reilly should consider inviting Mr Anderson on his show as a guest.) 

The reason I am mentioning this silly article at all is that Mr Anderson purports to give advice to private parties as to how to defend against an investigation or lawsuit by an attorney general or group of attorneys general.   In my humble opinion, Anderson's advice borders on both legal and strategic malpractice.

I hope that no corporation takes his approach seriously (because it will be unnecessarily hurt) and that no attorney general or assistant attorney general hold the article against some of the very gifted lawyers in the O'Melveny firm.  Every family has a weird cousin.

You can read the article yourself in the Legal Times or in today's http://www.law.com

 

The U.S. Supreme Court went with the U.S. business community three times yesterday and, in doing so, continued its march toward preempting state laws.   In announcing one of the cases from the bench, Justice Antonin Scalia said the day's decisions made it clear that "we consider it part of our business" to sort out the balance between federal and state law.

There are many other places to debate whether this Court is indeed creating a "balance" (defined in one dictionary as "a state of equilibrium or parity characterized by cancellation of all forces by equal opposing forces") or whether it is, as Justice Ginsburg wrote yesterday, enacting a "radical curtailment" of state law remedies that Congress did not intend.

While this debate continues, the reality is that the Court is consistently rewriting federalism in a way that minimizes a state's ability to regulate any business other than a local shoe repair store. The reality is further that none of the candidates for President, and none of the leaders in Congress in either party, are talking about changing this trend.

Whether AG's like it or not, it is time for them and their allies to understand the full scope of the transformation.

Fl Attorney General Bill McCollum has met with state and national Islamic leaders and wisely agreed to establish an on-going Muslim community advisory group. McCollum met with representatives of the Council on American-Islamic Relations (CAIR), the Muslim Public Affairs Council (MPAC), the ACLU of Florida, leaders from Florida's Christian and Jewish communities and the Florida Muslim Bar Association.  McCollum's office will soon be offering educational programs on Islam and Muslims to his own staff and engaging the Muslim community in order to carry out his law enforcement priorities.

Rabbi Steven Jacobs, who took part in the meeting, nailed the issue when we said, "we ought to be obsessed with the truth, not distortions that lead to demonization and hatred of any group."

Other AG's should be looking to McCollum guidance on this issue and not just regarding Muslim-Americans.  His leadership reflects an understanding that the demographics of the United States are changing dramatically faster than the personnel in AG offices that remain overwhelmingly filled with caucasion baby boomers - who would do well to remember an anthem of their own youth, "The Times They Are a Changing,"

While Attorney General of Maine in the 1980's, my office prosecuted all homicides.  In doing so, we sentenced a number of individuals - mostly in their twenties - to a lifetime in prison.  These men are now approaching the age of 50 and, because of the rapid aging of imprisoned individuals, are now characterized in prison parlance as "geriatric." 

I wonder about them as they age.   These men must now be beginning to suffer from diabetes, congestive heart failure, cancer, high blood pressure and chronic obstructive pulmonary disease.  Some are likely to be confused and disoriented leaving them more likely to be victimized by other inmates.   For most the fragile family structures that might have existed years ago must now have all but disappeared.

My thoughts are not simply those of an aging prosecutor gone soft - although to some degree I would plead guilty to that charge - but of someone concerned as to the implications of the statistics that show that inmates 50 and older are the fastest-growing segment of the U.S. prison population.  The costs - both financial and moral - for the care of aging prisoners will soon be crashing down on the shoulders of state correctional and prosecutorial personnel.

Is anyone paying attention?

A couple of days ago the U.S. Court of Appeals in D.C. agreed with 14 AG's and struck down another U.S. EPA policy as having insufficient basis in law.   This ulta vires effort by the Administration's anti-enviromnental administrators at the EPA  illegally exempted power plants from the law.  The Court decision barred the EPA from implementing its so-called "Clean Air Mercury Rule" that enabled dirty coal and oil-fired plants to trade the right to emit certain amounts of mercury. I am sure that the free market types at the EPA actually believe that their idea is a good one, so before they return to private industry at the end of the year, they decided to just make their idea the rule even though it lacked basis in law.  There are now so many of these cases - same plaintiffs, same EPA, same Courts, same results - that I almost didn't bother to blog the obvious.  But when it becomes routine for a government agency to ignore the law, it seems that we all ought to stand up and just say "enough" in hopes that someone will notice.

I have just finished a new book published by the National Association of Attorneys General entitled: "State Attorneys General Powers and Responsibilities."  It is edited by long time NAAG Counsel Emily Myers and by Former NAAG Exec Director Lynne Ross.  It is an excellent compendium of the entire sweep of duties facing all state attorneys general.  The book does not purport to engage in any of the debates that swirl around the office, but it is the best place to start.

Emily Myers also drafted five of the twenty three chapters and deserves special credit for bringing into existence this much needed revision of the First Edition that came out over twenty years ago.  Any serious student of the Office of State Attorney General should purchase this new copy directly from NAAG.

New Attorney General Mukasey   more »

Two dear friends who are supporting Sen. Clinton sent me notes yesterday that began with the words "I am afraid..." and "I have a worry..." Two weeks ago, a Clinton leaning, "Meet the Press" pundit, when asked at a private event to give advice to young people, said "I have two words: Patience and Forbearance." These dark observations, that tracked Sen. Clinton's fear laden pre-Iowa campaign, kept me tossing during the night.

Their fears are heartfelt and reflect those of the Rev. Kit Ketcham who yesterday blogged:

"....I came to the startling realization that I am afraid to hope, in this election. I would never have thought of myself as a person who is afraid to hope. I want with all my heart to buy into the dream that is Barack Obama as President. I realized that what was holding me back is the fear that the dream will be destroyed."

Now in my own sixth decade of living, I fully understand the fears. I know how life experience can drive us to seeing the world in dystopian terms.

But I reject that dark view. Like Sen. Obama, I am a "hopemonger." I see no reason why we cannot overcome the past and reach for a better world.

Almost forty years ago, Graham Nash wrote in the final stanza of his loving generational song, that our then young generation must "Teach your parents well, and feed them on your dreams, The one they picks the one you'll know by."

Forty years later, we are the parents, and our kids have this one right.

We all should listen to them and chose hope.

 

 

 

For my son's thoughtful take on the generational implications of Super Tuesday, go to his blog at http://www.revtierneyeliot.net/?p=98