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The Role of the State Attorney General, UMinn Law School, Spring, 2021

Prof. Keith Ellision

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Prof James Tierney

James E. Tierney is the former Attorney General of Maine and a Lecturer at Harvard Law School where he teaches courses on the role of state attorneys general while directing the Harvard Attorney General clinic. https://hls.harvard.edu/faculty/directory/10888/Tierney

For thirteen years Tierney was the Director of the National State Attorneys General Program at Columbia Law School, and he has also taught courses at Yale Law School, Boston College Law School, Northeastern Law School and the University of Maine School of Law.

Mr. Tierney served as the Attorney General of Maine from 1980 until 1990. During his ten years as Attorney General of Maine and served as a Special Prosecutor in Florida, Pennsylvania, Minnesota and Vermont.

Since 1982 Mr. Tierney has instructed newly elected state Attorneys General on the effective performance of their office and he continues to consult for incumbent attorneys general and their staffs on a wide variety of matters. Tierney is married to author Elizabeth Strout.  He has five children and eight grandchildren.

Introduction

 

The roots of the Office of State Attorney General run deep in American jurisprudence. All 13 American colonies had an Attorney General and today all 50 States and the District of Columbia have opted to provide legal services through an Office of State Attorney General.

Each office possesses broad jurisdiction and to varying degrees is independent from the executive and the legislative branch of state government. Attorneys General in 43 states are elected statewide on a partisan basis. The combination of sweeping jurisdiction and constitutional independence has given rise to a unique American legal institution of growing importance.

The course will cover the day-to-day challenges faced by Attorneys General and their staffs in delivering the legal advice that will guide state government in a constitutional and ethical manner. The course will also cover the relationship of Attorneys General with Governors, state legislatures and agencies, the federal government, the private bar, and a myriad of advocacy organizations. It will focus both day to day responsibilities as well as on some of the most controversial legal issues affecting society today. Although Attorneys General are often in the news litigating both in favor and in opposition to Presidential policies,the focus of this class is not on suing or defending the President.

Although each State is unique, the course will demonstrate the remarkable congruence that exists among State Attorneys General when addressing similar challenges and issues. The course is weighted toward those decisions by Attorneys General that reflect their independent status, which is most often revealed when Governors, legislatures, other elected officials, state agencies or the federal government exceed their constitutional or statutory authority. The course considers also the unique ethics issues that Attorneys General and their staff must confront.

This Syllabus contains federal and state statutes and case law, law review and descriptive articles from a variety of sources, and hypotheticals that describe the nature and function of the Office of State Attorney General. The numerous hypotheticals are drawn from actual cases which, because of their nature, have not been studied or, in most cases, ever made public. All materials have been collected from over 35 years of studying and participating in the decision making of Attorneys General and their staffs.

Students are evaluated based upon either a final take-home examination or, if approved by the instructors, a paper. Given the dearth of academic writing on State Attorneys General in particular, and on state issues in general, we encourage students in this class to consider writing a paper as attorneys general present fertile ground for academic research. For the readings that are marked “supplemental reading,” these are optional readings to enable you to take a deeper dive into that week’s topic.

Additionally, students can improve their grades based upon class participation and all students are expected to participate in some fashion each week in class. Because many, if not most, of the decisions of Attorneys General and their staff are based upon judgment, and thus are not obviously right nor wrong, the class will create an atmosphere students of differing political perspectives will feel comfortable contributing diverse viewpoints to the class discussion.

In anticipation of the first class, all students are required to watch Prof. Tierney in this video (https://www.youtube.com/watch?v=oeNZ6_Vzy7I&feature=emb_title): A Brief Introduction to the World of State Attorneys General