Attorneys general and prosecutors scramble to figure out what comes next if Roe falls

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“Former Maine Attorney General James Tierney knows a thing or two about the job. He has been a go-to adviser for state attorneys general and teaches a class on them at Harvard Law School.…

Tierney says attorneys general have immense discretion. They can choose to challenge a restrictive abortion law in court – or defend it.

’It’s always important who sits in the attorney general’s office. Always. Not just political party but what they argue, how they argue,’ Tierney says. ‘Does who sits in the AG’s office end the story? And the answer is clearly no.’

In many states, abortion could carry criminal penalties. What attorneys general typically can’t do is decide whether or not to enforce them.”

Sam Gringlas, “Attorneys general and prosecutors scramble to figure out what comes next if Roe falls,” All Things Considered, NPR, May 16, 2022.

How State AGs Became a Check on the President

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“The instinct to sue the federal government became habitual under Trump. Democratic AGs sued his administration more than 130 times, double the total under Obama or Bush. Current lawsuits against Biden are part of that same pattern, says Tierney, a former Democratic attorney general of Maine.

’It’s totally consistent with the pattern starting with the few cases in the George W. Bush years and then increasing seriously in the Obama years and the Trump years,’ he says.”

Alan Greenblatt, “How State AGs Became a Check on the President,” Governing, September 30, 2021.

Biden DOJ Speedily Raises SCOTUS' ACA Ruling in Another Fight With Republican AGs

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“James Tierney, the former attorney general of Maine and a lecturer on state attorneys general at Harvard Law School, said he views the court’s ruling as good for attorneys general because it may dissuade them from bringing lawsuits that are more political in nature, if they can’t strongly prove they have suffered due to the federal policy they want to challenge.

He said while lawyers in an attorney general’s office might know they can’t bring a lawsuit without standing, they might feel pressure from political actors in the state government to bring suit.

’We’re talking Clarence Thomas to Elena Kagan, all lined up singing ‘Kumbaya,’’ Tierney said. ‘If you’re going to come into our court, you better have a real case and controversy. You shouldn’t have something that’s manufactured. Don’t bring your politics into our court, that’s not what we’re here for.’”

Marcia Coyle and Jacqueline Thomsen, “Biden DOJ Speedily Raises SCOTUS' ACA Ruling in Another Fight With Republican AGs,” National Law Journal, June 18, 2021.

GOP eyes the playbook California used to stymie Trump

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“‘It is something that bothered President Trump a great deal,’ said James Tierney, the former Democratic attorney general of Maine and a lecturer at Harvard. ‘I have no doubt it will bother President Biden a great deal. One judge can shut down the whole country.’”

Evan Halpers, “GOP eyes the playbook California used to stymie Trump,” Los Angeles Times, Feb. 16, 2021.

Did Implicit Bias Lead to Breach of U.S. Capitol?

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Harvard Law School’s James Tierney says police would have treated Black Lives Matter protesters differently.

“‘[T]he cause of this disaster arose long before the Capitol building was breached.

’Bluntly, if the Capitol Police knew a Black Lives Matter march of thousands of protesters were marching down Pennsylvania avenue, their implicit biases would have resulted in a very different kind of preparation. They would have pushed the fences back and been waiting in full riot gear. Their batons would have been at the ready and they would have had plenty of back up. Their predisposition to a Black Live Matter march would undoubtedly have led to assertive and physical responses at the slightest provocation.’”
— James Tierney

Jeff Neal, “Did implicit bias lead to breach of U.S. Capitol?,” Harvard Law Today, January 8, 2021.

A quiet ceremony, propelled by a proud history

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“While Maine’s four electors ... waited to cast their three votes ..., [James] Tierney, fulfilling the role of Electoral College historian, offered those gathered in Augusta and those watching online from home words of reassurance at a time when nothing feels assured.”

Bill Nemitz: “A quiet ceremony, propelled by a proud history: The gathering of Maine's four electors brought much-needed tranquility to a turbulent moment in history,” Portland Press Herald at CentralMaine.com, December 20, 2020.

The full address is available to stream in the Archived Hearings and Meetings section of the Maine State Legislature website: Maine House Chamber, Electoral College, Monday, Dec 14, 2020. Professor Tierney’s remarks begin approximately 10 minutes into the proceedings.

Reduce intergovernmental lawsuits with a return to the RULE OF LAW

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An open letter to President-elect Joe Biden:

“The hyperpartisan climate that engulfed the past two administrations led to hundreds of lawsuits filed by state attorneys general against our own federal government. As two former attorneys general from different political parties, we believe there is a better way.”

Greg Zoeller, a Republican, served as Indiana attorney general (2009-17) and is chairman of the World Trade Center of Indianapolis. Jim Tierney, a Democrat, served as Maine attorney general (1980-90) and is a lecturer at Harvard Law School. They wrote this for The Journal Gazette.

Greg Zoeller and Jim Tierney, “Reduce intergovernmental lawsuits with a return to the RULE OF LAW,” The Journal Gazette, December 06, 2020.

State AGs have sued Trump's administration 138 times — nearly double those of Obama and Bush

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“James Tierney, a Democratic former attorney general of Maine who is now a lecturer at Harvard Law School, said Trump has largely himself to blame for the flurry of lawsuits after he used executive orders and other directives to push his agenda, often bypassing Congress and administrative laws.

‘Depending on what President Biden does — and more importantly, how he does it — GOP AGs can be expected to sue,’ Tierney said. ‘How often and to what degree of success will depend on what President Biden actually does.’”

As Covid cases soar, GOP state lawmakers keep fighting to limit governors' power to respond

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“‘As time has gone on, there’s been Covid fatigue, and that’s resulted in more legal challenges,’ said James Tierney, a Harvard Law School lecturer and director of its attorney general clinic. ‘Unfortunately, a lot of public health issues have become political and not scientific in the last three or four months.’”

Election and Supreme Court Fight Will Decide Trump’s Environmental Legacy

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“James E. Tierney, a former Maine attorney general who now teaches courses at Harvard Law School on the role of attorneys general, said that they are ‘institutionally designed to be independent watchdogs, independent brakes on power.’

Their relative independence from executive power, whether in their own state or the federal government, goes back to the thirteen original colonies, and, before that, English common law.

’If there’s a Democratic president, roll up your sleeves and wait for Texas to file lawsuits against President Biden,’ he said.”

Lisa Friedman and John Schwartz, “Election and Supreme Court Fight Will Decide Trump’s Environmental Legacy,” New York Times, Sept. 23, 2020

Flowers Case Shows How AGs Are Stepping Into The Spotlight

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“‘It is an increasing trend because of the increase in transparency on police misconduct, which is increasing public cynicism,’ according to James Tierney, a lecturer and director of the attorney general clinic at Harvard who served for 10 years as Maine’s attorney general starting in 1981.

But when an attorney general’s office takes over a case, it doesn’t necessarily reflect poorly on the local prosecutor, he said. Police officers often serve as witnesses in district attorneys’ cases. Attorneys general don’t need to maintain close working relationships with police officers, and, as a result, may seem more impartial, according to Tierney.
...

’This isn’t about being a good district attorney or a bad one,’ he said. ‘[A referral] lets us have someone else who has a little distance look at this.’
....

But Tierney insists that while there may be an uptick in attorneys general getting involved in police-involved prosecutions, ‘it’s been this way forever.’”

Cara Bayles, “Flowers Case Shows How AGs Are Stepping Into The Spotlight,” Law360, September 13, 2020.

Postal Service Suspends Changes After Outcry Over Delivery Slowdown

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“The states plan to pursue their lawsuit despite Mr. DeJoy’s announcement on Tuesday. James E. Tierney, a former attorney general of Maine and [Lecturer in Law] at Harvard Law School, said the lawsuit provided assurance to the attorneys general that the postmaster general would follow through on his promise.

’The attorneys general don’t trust the word of the Postal Service,’ Mr. Tierney said. ‘They feel more comfortable having this done in open court.’”

Emily Cochrane, Hailey Fuchs, Kenneth P. Vogel and Jessica Silver-Greenberg, “Postal Service Suspends Changes After Outcry Over Delivery Slowdown,” New York Times, August 18, 2020.

NRA Fraud Case Will Hurt But Won’t Kill Gun-Rights Behemoth

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“James Tierney, a lecturer at Harvard Law School who has taught courses on the role of state attorneys general, said the NRA’s suit is ‘foolish’ and that the New York case is an ‘appropriate’ response to the NRA’s refusal to cooperate.

’This case has been developed by highly sophisticated people who’ve been in the business of charities regulation since long before Tish James,’ said Tierney, who served as attorney general of Maine for a decade until 1990. ‘These people have gone through thousands of pages of documents and they’re accountants — they’ve tracked all the numbers over the years.’”

Erik Larson and Bob Van Voris, “NRA Fraud Case Will Hurt But Won’t Kill Gun-Rights Behemoth,” Bloomberg Quint, August 07, 2020.

Iowa governor has stopped AG from joining anti-Trump suits

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“Former Maine Attorney General James Tierney, who now lectures at Harvard Law School, said the bill passed by Iowa lawmakers would have shut Iowa out from any multistate settlements, potentially losing millions of dollars for the state. He said Reynolds was wise to veto the bill and that the deal with Miller was a good compromise.”

David Pitt, “Iowa governor has stopped AG from joining anti-Trump suits,” Martinsville Bulletin, August 3, 2020.

Facebook Ran Multi-Year Charm Offensive to Woo State Prosecutors

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“‘Attorneys general have massive jurisdiction over businesses and virtually everything they do,’ said James Tierney, who served as Maine’s attorney general for a decade. ‘Every major industry should develop an understanding of attorneys general and reach out to them.’”

Chief justice to step down from state’s high court to lead UMaine law school

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“‘Judicial decisions do not mark her tenure as a judge — district, superior, associate and chief,’ said former Maine Attorney General James Tierney, now a law professor at Harvard University. ‘Rather, her career has been marked by an unflagging commitment to common sense justice and a deep love of Maine.’”

‘A world of hurt’: 39 states to investigate Juul's marketing

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“The scope of the investigation by dozens of states leaves Juul with little choice but to change its marketing practices, said James Tierney, a former attorney general of Maine.

’When you see these kinds of numbers, it means they’re in a world of hurt,’ said Tierney, a lecturer at Harvard Law School. ‘They can’t seriously litigate this.’”

Taking states seriously: new frontiers of public law

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“What Tierney’s initiatives, propelled (as I can testify first-hand) by a remarkable lawyer with boundless energy, point to is a marriage between ambitious public law academics and their law school homes on one side of the aisle and seasoned AGs and other public officials who are committed to working within the domain of academic culture to fertilize this field of state public law.”

Letitia James is one of them now

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“‘She’s not a great litigator. She didn’t go to Harvard Law School. She didn’t work in a big law firm. So nobody really knew what to expect,’ said James Tierney, a former Maine attorney general and lecturer at Harvard Law School. But he said she’s done a great job, particularly when it comes to cooperating with other attorneys general on multistate litigation holding pharmaceutical companies accountable for deaths from opioid abuse and protecting access to birth control and abortion. ‘And that has been noticed and deeply appreciated,’ Tierney said.”