Pennsylvania attorney general Kathleen Kane dropped a longstanding corruption “sting” probe that had snagged several Philly officials. The Philadelphia Inquirer raised questions about her decision in its reporting, which contributed to a public outcry over the episode. Then Attorney General Kane brought a prominent libel litigator with her to a meeting with the Inquirer editors, and that lawyer announced that Kane was exploring her options of suing the paper and others that had reported on the matter, and that he was going to do the talking for her.
On Sunday the paper continued to cover the sting story here and here. Ed Krayewski comments at Reason. Longtime Overlawyered readers may recognize the name of Kane’s attorney Richard Sprague.
Caleb Brown interviews me for this new Cato podcast on a knotty question: when should a state attorney general decline to argue in court in defense of a law he thinks unconstitutional? On the one hand, the legal profession’s norms strongly favor giving every client and cause its day in court, and practical dysfunction might result were cases routinely handed over to others to defend or dropped entirely. On the other hand, attorneys general like other officials take an oath of office to the constitution, which calls in doubt whether they should (or even may) use their skills on behalf of unconstitutional measures. Complicating matters: how should unconstitutionality be assessed, by way of the AG’s own judgment, by way of predicting how the highest relevant court would rule, or by some other method? What kind of difference should it make whether the assessment appears certain, very probable, or more ambiguous than that?
In recent weeks about a half-dozen Democratic AGs around the country have declined to defend their states’ bans on same-sex marriage, on the grounds that they are inconsistent with the Supreme Court’s Windsor decision of last year, while other AGs both Republican and Democratic have argued in defense of those laws. (Today, Kentucky’s attorney general announced that he will not appeal a federal court ruling requiring the state to recognize out-of-state marriages, although the state’s governor is stepping in to do so.) Finding either liberals or conservatives who have preserved entirely consistent positions on the issue, though, is not always easy. Former attorney general Ken Cuccinelli, a strong conservative, declined to defend a state education reform law last year, while in 2011 Wisconsin Gov. Scott Walker and Attorney General J.B. Van Hollen declined to defend a state domestic partnership registry they deemed unconstitutional. In a case like the latter it was liberals who tended to criticize the refusal to defend a law, and conservatives who applauded — patterns that to some extent have been reversed this time around.
Now this is bound to end well: Mississippi lawmakers vote to give Attorney General Jim Hood, a frequent mentionee in this space, his own strike forces [Radley Balko, AP]
“Lawyers are pitching state attorneys general in 16 states with a radical idea: make the food industry pay for soaring obesity-related health care costs. … So far none have agreed to sign on.” One hope: the theory popularized by former FDA chief David Kessler that bacon, brownies and buttered popcorn should be seen as “addictive.” Paul McDonald, a Chicago lawyer who is organizing the campaign, is described as a former “senior counsel at Kraft Foods.” [Helena Bottemiller Evich, Politico]
A buzzed-about scheme for state AGs (of all people) to wade into the patent troll controversy might have hit a snag in Nebraska. [John Steele/Legal Ethics Forum, earlier]
Because you thought he was some kind of big privacy advocate or something? “Attorney General Eric Schneiderman subpoenaed the data as part of an investigation into the website stemming from a 2010 law that makes it illegal to use such sites to rent out your own apartment.” He says he’s after the 15,000 or so customers who used the service to let guests stay on their premises for a fee. Next: Craigslist? [New York Daily News, Matt Welch/Reason]
Funny thing, though: its state members aren’t exactly financially impartial about the matter. [Daniel Fisher, Forbes]
Jack Shafer has a few thoughts:
Schneiderman mustn’t neglect the product endorsement industry. Do those celebrity endorsers really love the product or service as much as they say they do? … Fake reviews on Yelp, properly considered, are Yelp’s problem, not the state of New York’s. Let the Yelp people clean up the sewer. And the attorney general? Aren’t there any genuine crimes in the state for him to investigate?