• In California, we’re still awaiting word on Democratic Attorney General Jerry Brown’s plans (although, the hit he took from the Supreme Court on his “novel” Proposition 8 argument had to have been a bump for declared gubernatorial Gavin Newsom).

• In New York, The New York Times reports on Democratic Attorney General Andrew Cuomo’s possible gubernatorial run (so, the waffling really does run in the family, oy) — and the several folks at the ready to run for A.G. should he finally decide to take on Paterson.

• In Michigan, though, we have an A.G. — Republican Mike Cox — who has decided to take the plunge and announce his run for governor:

“With Michigan at an economic crossroads, we have a choice to make. We can watch Michigan die a slow economic death or we can stand up and fight for Michigan’s future,” he said on his Web site. “I am ready to lead the fight for Michigan’s future.”

• Also, in Utah, A.G. Mark Shurtleff has announced, accidentally at first via Twitter, that he will challenge Sen. Bob Bennett in the Republican Party primary next Spring for the U.S. Senate.

• Finally, in Florida, Republican A.G. Bill McCollum has announced his run for higher office and, per The Miami Herald, “immediately became the Republican frontrunner for governor in 2010 when he officially launched his campaign Monday in Orlando with the support of his party’s establishment.”

So, what’s the problem with the Democrats?  Attorneys General Brown and Cuomo, it’s your turn.  What do you say?

To ensure that executive departments and agencies include statements of preemption in regulations only when such statements have a sufficient legal basis:

1. Heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law through the regulation except where preemption provisions are also included in the codified regulation.

2. Heads of departments and agencies should not include preemption provisions in codified regulations except where such provisions would be justified under legal principles governing preemption, including the principles outlined in Executive Order 13132.

3. Heads of departments and agencies should review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption. Where the head of a department or agency determines that a regulatory statement of preemption or codified regulatory provision cannot be so justified, the head of that department or agency should initiate appropriate action, which may include amendment of the relevant regulation.

As the liberal Center for Pressive Reform (a group, you might recall, who raised big questions about Cass Sunstein’s nomination to head up OIRA) put it:

On Wednesday, by the stroke of a pen, President Obama reversed a major Bush administration policy, striking another blow for good government. For eight years the Bush administration sought to accomplish tort reform by stealth and indirection with several agencies proclaiming in preambles to regulations that the regulations preempted state tort law.

In a November 2008 White Paper, CPR Member Scholars called for the President to amend or strengthen the existing Executive Order on Federalism to reverse this Bush policy and to re-establish the presumption that federal regulations protecting health, safety, and the environment do not preempt state tort law. The President has now done this.

This is an important and welcome reversal of the commonplace Bush Administration practice of attempting to limit states’ creative experiments for dealing with regulatory quandries.

[UPDATE: The Republican laissez-faire response is, unsurprisingly, that "Obama Regulatory Review Could Spur Product Lawsuits."]

Then-New Hampshire Attorney General David Souter. (AP via WSJ)

Why stop at the level of governor?  It would seem to me that there could likely be some great possibilities from the ranks of state attorneys general.  Granholm, of course, is the former attorney general of Michigan.  And Justice Souter is the former attorney general of New Hampshire.

[Setting aside legal knowledge itself, for which we have several other methods of ascertaining a nominee's qualifications, a state attorney general brings to the table several additional skills, including experience with politics and political systems, a background that will include familiarity with aspects of both criminal and civil law, a closeness to the people that comes through those previously mentioned elements (whether through campaigning, enforcing consumer protection laws, etc., or both), and the more nuanced understanding of federalism and separation of powers issues that comes with sitting in a state AG's seat.]

Here are some names for thought: Richard Blumenthal (CT), Jerry Brown (CA), Martha Coakley (MA), Richard Cordray (OH), Andrew Cuomo (NY), Drew Edmondson (OK), Doug Gansler (MD), Terry Goddard (AZ), Lisa Madigan (IL), Tom Miller (IA) and William Sorrell (VT).

Unfortunately, Blumenthal, Brown, Edmondson, Goddard, Miller and Sorrell are likely too old to find themselves seriously able to be considered for a nomination.  Cordray is less than six months into his tenure as attorney general in Ohio, which leaves Coakley, Cuomo, Gansler and Madigan.

Given the value Obama has stated he will place on outstanding credentials, I turned to law school.  Coakley attended Boston University School of Law, Cuomo attended Albany Law School, Gansler attended the University of Virginia Law School, and Madigan attended Loyola University Chicago School of Law.  Regardless of all the great things that Attorneys General Cuomo and Madigan are doing in their jobs, I can’t see Obama nominating someone who didn’t attend a top-tier law school.

That leaves Coakley, age 55, and Gansler, age 46 or 47, as possible nominees, with an edge to Coakley because the focus from most corners of analysis is so clearly on possible women nominees.

I’m not saying that Coakley or Gansler should be nominated, but I am saying that in the interest of “expanding the field,” Attorneys General Coakley and Gansler are two names that should not be left out of consideration.

[UPDATE:  Upon re-reading this, I added in the above bracketed paragraph to explain why, rather than just a similar line on the resume, the state attorney general's position might lend itself to a person having several of the attributes the President suggested were important to him for a SCOTUS nominee.]

I’ll be looking to see what results from the meeting.

As everyone tweets and writes today about how Twitter is just a fad, a move by a top Facebook executive shows — at least in his mind — that Facebook is far beyond fad status at this point.  According to this AP report, Chris Kelly, the chief privacy officer for Facebook, has opened an exploratory committee to consider running for attorney general in California.  He cites his Facebook work as one of his qualifications:

He said that as Facebook’s chief privacy officer for the last four years, he had worked with attorneys general across the country to make the Internet “safer for consumers of all ages, particularly young people.”

It’s true that Facebook and Kelly, specifically, have worked with state attorneys general (including in Ohio) over the past couple of years to make the site safer, but I’m not sure how far that’s going to get him if running to become attorney general of California.  (I mean, the current officeholder is a former governor!)

Regardless, it doesn’t look like things will be easy going for Kelly, should he decide to run:

Kelly announced the formation of his exploratory committee on the same day that an announced candidate for attorney general, San Francisco District Attorney Kamala Harris, said she had been endorsed by three Silicon Valley officials — Assemblywoman Elaine Alquist, D-San Jose, and San Jose City Council members Madison Nguyen and Ash Kalra.

Harris is getting all the early support for the race that I’ve seen, so I would think this is a very uphill race for Kelly.  One other potential opponent in the primary, Bobby Shriver, already has opted out of the race, per the LA Times.

[UPDATE: Here is Kelly's Web site.  Here is Harris's bio on the San Fran City Attorney's Web site.]

• A high-school student is suing the State of South Carolina, trying to get it to accept stimulus funds and use them on education.  Attorney General Henry McMasters says he’s fine with the case being heard but thinks the lawsuit has several procedural hurdles that it can’t overcome. [The State]
• Mom-slash-teacher takes four kids, one her own and three other students, to a gay dance club (Masque, for those of you in the Dayton area).  Kids drink, allegedly from drinks given to them by older friends at the club.  Teacher resigns.  Hmmm.  This sounds like she did something wrong, but assuming she just meant for the girls to be able to dance (especially since she was the mother of one), why is this an offense worthy of resignation?  Is this a drinking thing, a bar thing, or a gay thing? [The Advocate]
• The Center for Progressive Reform soft pedals on the formal nomination of Cass Sunstein to head OIRA.  CPR President Rena Steinzor said: “[W]ill Professor Sunstein put his years of study of the issue and his prodigious intellect to the all-important task of repairing the tattered framework of the nation’s regulations?” [CPRBlog]
• With all the focus on Judge Bybee these days, the LA Times backs up to look at the state of the Ninth Circuit more generally. [LA Times]
• Gavin Newsom is running for Governor of California:

[youtube=http://www.youtube.com/watch?v=BH0jnyuJ1Tg]

• Discussion in Massachusetts about the AG’s Office stepping aside from the defense of state Treasurer Timothy Cahill in pay-to-play accusations because of potential conflicts of interest.  This move from the AG’s Office isn’t all that unusual, but what I did find interesting is that the outside counsel being authorized to represent Cahill are from Proskauer Rose LLP and Mintz Levin, including Proskauer senior counsel Scott Harshbarger — the former attorney general of Massachusetts! [Boston Globe]
• Maryland Democrats taking money out of the state’s Fair Campaign Financing Fund, which can be used by gubernatorial candidates seeking public financing in the state, to replace voting machines.  “Maryland Republicans are fuming over a plan to divert up to $2 million from a public campaign fund that could be tapped by a challenger to [Democratic] Gov. Martin O’Malley next year.”  Intersting to election law folks, the move would “pay for new optical-scan voting machines, which allow for a manual recount and which will replace the state’s much-criticized touch-screen system.” [Baltimore Sun]
• The release by the Obama Administration of nearly a quarter-million pages of Reagan-era documents kept under wraps by the second Bush Administration. [AllGov]
• Richard Epstein hand-wringing about the Obama Administration’s FDA. [Forbes.com]
• The Wall Street Journal’s coverage of the Oregon lawsuit against OppenheimerFunds discussed Monday at Law Dork. [WSJ]

Oregon is suing OppenheimerFunds, Inc., the manager of the state’s college savings plan, today in Marion County Court seeking repayment of at least $36.2 million participants have lost in the plan.

The suit claims Oppenheimer violated Oregon securities law, breached its contract and fiduciary duty and misrepresented the savings plan in a negligent manner, state Treasurer Ben Westlund and Attorney General John Kroger announced this morning.

The key distinction, per the Complaint (pdf), between this fund and many other investment funds is that “the state alleges that in late 2007 and early 2008, OppenheimerFunds began selling credit default swaps and other high risk derivatives to Wall Street firms.”  Well, that is an interesting development.

Although other funds might have invested in companies whose investment portfolio included credit default swaps, this actual CDS sale element seems quite unusual — at least for a public, state-initiated savings vehicle — and much more likely to lead to the type of lawsuit brought today by Oregon A.G. Kroger.

Per the Complaint:

Over time, however, and without discussion with the Board, the Core Bond Fund underwent a radical transformation.  By late 2007 or early 2008, the Core Bond Fund was no longer a plain bond fund that sought to protect principal, obtain income and minimal growth through corporate and government debt securities.  It had become a hedge-fund like investment fund that took extreme risks in a search for speculative large returns.

Compl. at para. 5.  These “extreme risks” included selling credit default swaps to Wall Street.  As late as October 2008, OppenheimerFunds, Inc., was “reassur[ing]” the state and “advis[ing] it to remain invested in the Core Bond Fund.”  Compl., at para. 8.

The fund also, per the Complaint, “began to take unnecessary risks by significantly increasing its use of leverage.”  Compl. at para. 54.  Shockingly, the Complaint alleges that the Fund:

sometimes actually sold protection on the issuers of bonds that it also owned in the Fund, thereby doubling or tripling its bet with respect to the credit-worthiness of those issuers.  For example, as of June 30, 2008, the Core Bond Fund held bonds issued by AIG, Lehman Brothers, Merrill Lynch, Citigroup, General Motors, and Ford Motors.  At the same time, the Core Bond Fund was selling protection, credit default swaps, on bonds by these very issuers.

Compl. at para. 60.  The Complaint alleges violations of Oregon securities law, breach of contract, breach of fiduciary duty, negligence and negligent misrepresentation.  The AG’s news release can be found here.

[UPDATE: Bloomberg covers the suit here and adds:

Illinois, Maine, New Mexico and Texas are investigating OppenheimerFunds over college-savings plan investments. Illinois investors lost $85 million last year in accounts managed by OppenheimerFunds, according to the office of State Treasurer Alexi Giannoulias. The other three states have not published estimates of their losses.

Oregon, Illinois and Texas have pulled college-savings money from OppenheimerFunds.

Sorta makes you wonder why Maine and New Mexico haven't pulled their money yet.

Also, I clarified in the headline that the college investment fund's manager was sued, not the college investment fund itself.]

Tensions tightened after Goddard balked at the governor’s request that he file an amicus brief with the high court, outlining the state’s support for a 2006 state law on funding programs to help students learn English.

I’ve discussed this question previously in “When Governors and AGs Disagree.”  In that post, though, I focused on whether the Attorney General could, through his legal role, slow down or stop the Governor’s policy decision in Michigan.  In this Arizona dispute, however, it sounds more like Gov. Brewer just wanted to insert her policy preference on Attorney General Terry Goddard’s decision in a pending case.  Of course, Brewer argues that Goddard was more deferential to the governor’s policy preference when Napolitano, a Democrat, was in the role.

Unfortunately for Brewer, Goddard — as the state’s chief legal officer — has the constitutional legal right to do just that.  Whether it will turn out to be a palatable political decision as well remains to be seen.  But, legally, he seems to be on safe ground.

• Some procurement reform advice. [Administrative Law Prof Blog]
• In the wake of the Supreme Court decision in Entergy Corp. v. Riverkeeper, Inc., Prof Michael Dorf talks about cost-benefit analysis and best-practices and performance standards in the new Administration. [FindLaw]
• State Rep. Julie Hamos (D-Evanston, Ill.) wants to run for Attorney General . . . if Illinois A.G. Lisa Madigan decides she wants to run for something else.  Anyone heard of Madigan looking to run against Sen. Burris or Gov. Quinn? [The News-Gazette.com]
• Anne Gust, who married California A.G. Jerry Brown, was general counsel at Gap, Inc., previously, and now “is an unpaid special counsel in the state Justice Department. She is summoned to resolve complex legal wranglings and advise her husband on policy.“  Thoughts? [San Jose Mercury News]
• D.C. drama . . . in city government . . . out of the Dick Cheney playbook.  WaPo: “Two D.C. Council probes into allegations of wrongdoing at city agencies were blocked yesterday when Attorney General Peter Nickles advised officials not to testify.” [The Washington Post]
• Finally, Good As You asks, “How can ‘not out’ = ‘Out’?” [Good As You]