Tierney Blog


The Role of State AGs in Redistricting in 2020

Virginia AG Mark Herring recently lost his motion to take his state's redistricting out of the hands of elected officials. He and his Governor had asked a federal judge to appoint an independent "map drawer." Despite the loss, Herring’s effort underscores the role that attorneys general have long played in drawing district lines.

Last spring, Professor Justin Levitt and I wrote a memo summarizing the history and the potential of attorney general involvement in the redistricting process. For those interested in legislative and federal redistricting, it’s worth a read.

State Action vs. National Norms in Developing Tech Policy

A recent article in Forbes, How state attorneys general are driving tech policy, accurately notes an increased interest on the part of state attorneys general in tech policy. It argues that, while there are times when state action makes sense, the nature of the Internet requires that state action be preempted and national norms be imposed.

Attorneys general push back on this conclusion citing the inability of the federal government to meaningfully address tech policy issues. And state legislatures are likewise taking matters into their own hands, as California's passage of a net neutrality law last week shows. 

As this debate continues, the "AG Tech Forum" at the Berkman Klein Center for Internet and Society at Harvard Law School is working to "bring insights from academic and other constituencies to ensure that all sides benefit from dialogue on neutral ground" on these issues.  

The challenges of formulating tech policy will only grow in the years ahead, and the role of attorneys general has yet to be fully developed, making this an issue to watch.

 

Bipartisan State Efforts to Control Prescription Drug Costs

At the top of the agenda for the 800 state health policymakers who crowded into this year's annual conference of the National Academy for State Health Policy were bipartisan state efforts to control the costs of prescription drugs.  24 states have passed legislation designed to hold back price increases and almost all of them have been challenged by drug companies in lawsuits that will be defended by state attorneys general.

This is an issue that is only going to loom larger for all attorneys general, their legislatures, and their administrative agencies in the months ahead.

A Valuable Study of State AG Actions on Behalf of Immigrants

In a recent post on ACS Blog, Jonathan Miller, Chief of the Public Protection and Advocacy Bureau in the Office of the MA Attorney General, provides a thoughtful study of the ways in which some state attorneys general are responding on behalf of immigrants to new federal immigration policies.  

Reviewing the range of litigation, Miller points out that lawsuits tell "only a piece of the story of the work by State AGs and many of their counterparts at the local level in support of immigrant communities." His post then looks at other ways in which AGs are responding, including enforcement actions protecting immigrants against abuses from landlords, employers, and others, and connecting with groups that serve as trusted partners for immigrants.

I learned from reading Jon's post, and I think you will, too.

State AGs Taking on "No Poach" Agreements

Washington Attorney General Bob Ferguson and his staff have secured agreements with eight fast food chains to stop using “no poach” or “no hire” agreements. No-poach clauses prevent workers from switching jobs within the same chain, limiting workers’ ability to advance and depressing their wages and bargaining power.

In addition, in July, ten state attorneys general and D.C. initiated a separate inquiry into a number of fast food companies for this same practice. Since then, three additional states have joined that multi-state effort.

 

AGs Acting at the State-Level to Protect the Environment

There is more to protecting the environment than opposing the policies of the current federal administration, as Vermont Attorney General T. J. Donovan has been demonstrating. His office, working with his state agency, recently resolved two issues arising from violations of solid waste disposal.

Other states also continue to be active at the state level.

With all the furor over environmental actions taken by the federal government, it is wise to remember that AG's are carrying out their environmental protection responsibilities at home.

For an excellent compendium of state environmental action matters, see the Sabin Center's database of State Attorneys General Environmental Actions and also check out the Environment Policy Area page on our website.

Peter Brann on Kavanaugh: We’ve seen this movie before

My teaching colleague Peter Brann, former Solicitor General of Maine, has written a blog post for the American Constitution Society that is getting some serious attention. As the U.S. Senate weighs Judge Kavanaugh's assertions on precedence, Brann argues that:

“We’ve seen this movie before.… While Judge Gorsuch told Congress during his confirmation that ’precedent is the anchor of the law, ’ Justice Gorsuch had no problem immediately unmooring precedents dating back over 50 years….”

Brann's incisive catalog of Gorsuch writings speaks volumes as he urges the Senate, “[i]n evaluating Judge Kavanaugh, … [not to] be satisfied with empty platitudes about respect for precedent.” 

A Sophisticated Platform for Anti-Fraud Efforts in the Nonprofit Sphere

Media across the country have carried the story of how all 50 state attorneys general and the Federal Trade Commission came together to crack down on organizations perpetrating fraud against our veterans. This well-coordinated effort, Operation Donate with Honor, is not only a success in and of itself. It also reveals an expanding and sophisticated platform for future anti-fraud efforts in the nonprofit sphere.

The result of years of painstaking work by career prosecutors on both the state and federal level, this initiative highlights the efforts of the National Association of State Charity Officials (NASCO).  A regular visit to NASCO's improved website is in order for anyone interested in nonprofit fraud prosecutions

NJ AG Gurbir Grewal on Faith and the Law

New Jersey Attorney General Gurbir Grewal, who was recently the target of racial taunting by local radio hosts, usually (and wisely) avoids most of the interview requests he receives. But from time-to-time, he opens up, as he does in this thoughtful piece. It is worth reading.

New Civil Rights Unit at the New Hampshire AGO

Congratulations are in order to NH AG Gordon MacDonald and NH Governor Chris Sununu for creating a Civil Rights Unit in the Office of Attorney General. Pledging not only to enforce existing anti-discrimination laws, the new unit will also work closely with local communities to prevent bias and discrimination. This is exactly the right decision for these increasingly troubled times.

CA and MA Taking On the Scourge of Wage-Theft

The wage-theft saga continues, as evidenced by these recent actions brought by California Attorney General Xavier Becerra and Massachusetts Attorney General Maura Healey.

In a May 2017 report, the Economic Policy Institute found that in 10 states (California, Florida, Georgia, Illinois, Michigan, New York, North Carolina, Ohio, Pennsylvania, and Texas) 2.4 million workers lose approximately $8 billion annually as a result of receiving an effective hourly rate less than the states' mandated minimum wage. These findings suggest that nationally, employers are pocketing $15 billion in employee wages! This scourge overwhelmingly impacts low-wage industries, where immigrant and other vulnerable, marginalized communities predominate the labor force.

These cases will generally not garner the national spotlight. But they are just as important as the actions that have generated far greater national attention. They have immediate real-life impact on affected communities and send a clear signal that some state attorneys general remain on the labor law enforcement beat.

EPI ReportEmployers steal $15 billion a year from workers by paying less than the minimum wageEconomic Policy Institute, May 10, 2017.

California Case:  Attorney General Becerra Files Suit Against Janitorial Subcontracting Company for Wage Theft and Violating Tax LawsHighland Community News,  Nov 30, 2017.

Massachusetts Case: Sean Philip Cotter, AG: Cohasset hotel didn’t pay workers enough, The Patriot Ledger, Dec 1, 2017.

 

Traditional AG Work Continues

Ma. AG Maura Healey is opposing efforts by a small museum in western part of her state from selling off two Norman Rockwell paintings. I post this as a reminder that for all of the national attention to the opioid epidemic, pharmaceutical price fixing, and either suing the Trump administration or filling the enforcement void left by federal retrenchment, attorneys general are still back home doing their in-state jobs. And we are talking Norman Rockwell here! 

 

Generic Drug Antitrust Lawsuit Expands

It is no secret that for two years Ct. Attorney General George Jepsen and his experienced antitrust division have been investigating and litigating against generic drug manufacturers. The case exploded this week with the announcement that 46 other attorneys general officially joined the case and asked a federal court to expand both the number of companies from six to eighteen and the number of drugs from two to fifteen. The potential liability to the generics companies is staggering, and the combined strength of 47 state attorneys general makes this one of the major cases pending in the country today.