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Actions Speak Louder Than Words: The Supreme Court Of Georgia Textualizes “Action” In The Georgia Constitution, Abigail C. Letts

Mercer Law Review

It comes as no surprise to those tuned into Georgia jurisprudence—textualism has taken root in the Supreme Court of Georgia. Since a series of holdings in the late twenty-tens including Olevik v. State, Georgia courts have produced a steady stream of decisions committed to pointing legal interpretation back to the intent of the framers. At first glance, the court’s proclamation in State v. SASS Group, LLC that “action” as it is used in Article I, Section II, Paragraph V(b) of the Georgia Constitution refers to an entire lawsuit appears simply to be another instance of the court’s staunch commitment …

I Hope This Email Finds You Well: The Eleventh Circuit Addresses The Standard Of Review For Incarcerated Persons’ Outgoing Emails, Olivia Greenblatt

Mercer Law Review

An unfortunate and inevitable aspect of incarceration is separation from the outside world. The various constraints on communication exemplify one of the many ways through which incarceration creates this divide. Maintaining the connections that incarcerated people have with their loved ones and communities is essential for fostering a vital support system, facilitating the exchange of information, aiding in successful reintegration, and reducing recidivism upon release. Unfortunately, instead of encouraging and safeguarding this communication, prisons often curtail it through restrictive methods: visitation is limited, phone calls are costly, physical mail involves a time-consuming and intrusive process, and now, email is being …

State Constitutional Law:Standing To Litigate Public Rights In Georgia Courts, Randy Beck

Mercer Law Review

State courts interpreting state constitutions face the recurring issue of how much weight to afford Supreme Court of the United States precedent addressing comparable questions under the United States Constitution. At one end of the spectrum, many state courts routinely engage in what federal Judge Jeffrey Sutton calls “lockstepping,” importing federal doctrine wholesale into state decisional law. For a court engaged in lockstepping, concepts like freedom of speech or equal protection of the laws under a state constitution mean whatever the U.S. Supreme Court interprets them to mean under the federal Constitution, even if the state provision differs in potentially …

Mama Knows Best: Raffensperger V. Jackson Ushers In A New Framework For Professional Licensing Challenges And Recognizes A Right To Work For Lactation Providers Under The Georgia Constitution’S Due Process Clause, A. Tyler Kelly

Mercer Law Review

“State constitutionalism . . . is . . . vital yet underdeveloped[.]” The right to pursue one’s chosen profession free from unreasonable government interference is inherent in the Georgia Constitution’s Due Process Clause, and a recognition of such economic liberty reappears throughout the jurisprudence of the Supreme Court of Georgia. With the passage of the Patient Protection and Affordable Care Act (ACA) in 2010, the federal government delegated to the states the responsibility of navigating new policy which led insurance companies to reimburse a host of medical services from licensed professionals. At the time of the ACA’s passage, Georgia faced …

Principles Of Georgia Constitutional Interpretation, Nels S.D. Peterson

Mercer Law Review

The Supreme Court of Georgia routinely emphasizes the importance of interpreting the Georgia Constitution on its own terms, and not merely importing federal interpretations of the federal Constitution. That makes sense, “[r]eal federalism means that state constitutions are not mere shadows cast by their federal counterparts, always subject to change at the hand of a federal court’s new interpretation of the federal Constitution." But independent interpretation of the Georgia Constitution is often easier to talk about than to do.

The Party Respectfully Requests A Jury Trial On All Issues So Triable: What Issues Are Triable To A Jury And What Issues Should Be Triable To A Jury? A Comment On The Right To A Jury Trial, With A Focus On Civil Trials, And When The Right Exists, Michael Downing

Mercer Law Review

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . .” But what about civil prosecutions? What about prosecutions under state law, not federal? What does the universally expected “right to a jury trial” really mean or afford the parties to a trial?

Under federal law and the United States Constitution, by the time the Bill of Rights was drafted, the ideal of an accused’s right to a jury trial was already deeply rooted within …

Religion And Local Power, Brian M. Miller

Mercer Law Review

In December of 2017, hundreds of protestors descended on Washington, D.C., from all over the United States. The crowds converged on the blocks surrounding the Supreme Court of the United States, where onlookers might have spotted signs reading “It’s Not About the Cake,” and “Open to All,” rising from one side of the crowd, and signs reading “Serves All People, But Can’t Create All Art,” and “Justice for Jack” rising from the other side. That morning the Supreme Court heard a case about a Colorado cake shop owner who, because of his religious convictions, refused to create a cake that …

Black And White Make Gray: Common Cause V. Kemp, What's The Trigger For Purging Voters?, Caitlin Wise

Mercer Law Review

Imagine showing up to the voting poll, eager to vote and to show support for a candidate, and waiting in a long line, possibly in the cold. Then imagine handing your identification over only to be told you were not on the voter registration roll. This is what happened to 100,000 voters in the 2016 presidential primary election when they were purged from the voter registration rolls. Because of the voter purging, they were unable to cast their vote in a controversial and close election. ABC News reported many voters who were removed from voting registration rolls were from low-income …

A Constitutional Counterpunch To Georgia's Anti-Slapp Statute, Nick Phillips, Ryan Pumpian

Mercer Law Review

A "Strategic Lawsuit Against Public Participation"-commonly referred to as a "SLAPP-is a lawsuit intended to chill free speech and healthy public debate and to otherwise intimidate people from speaking out on issues of public concern. True SLAPP suits strike at the heart of the United States and Georgia Constitutions, specifically the rights to free speech and to petition the government enshrined therein. In recent years, state legislatures, including the Georgia General Assembly, have attempted to ward off SLAPP suits through legislation-commonly referred to as "anti-SLAPP" statutes-aimed at the early dismissal of SLAPPs and the award of attorney's fees and costs …

Baby Ninth Amendments And Unenumerated Individual Rights In State Constitutions Before The Civil War, Anthony B. Sanders

Mercer Law Review

Perhaps the greatest questions of modern constitutional law are "Does the Constitution protect unenumerated rights, and, if so, what are those rights?" The United States Supreme Court has repeatedly, yet haphazardly and often reluctantly, answered "yes" to the first question, and essentially "it depends" to the second.' The Court has proceeded with basically the same approach concerning the Constitution's unenumerated protections against both the federal government and the states. ...

This Article makes a small step toward demonstrating that at least most state constitutions protect unenumerated rights by focusing on Baby Ninth Amendments. Calabresi and Vickery recently demonstrated some of …

Diversity, Democracy & Pluralism: Confronting The Reality Of Our Inequality, Stacy Hawkins

Mercer Law Review

African-Americans were inspired by the election of Barack Obama as the first African-American President of the United States. Women were energized by even the prospect of electing the first female President of the United States. Latinos expressed pride in the confirmation of Justice Sonia Sotomayor to the United States Supreme Court. And a movie was made immortalizing Harvey Milk, the first openly gay politician elected to public office in the United States. This list of celebrated "firsts" goes on and on. All too often in the twenty-first century, we have either celebrated diversity among our civic leaders as a novelty, …

The Constitution, Desegregation, And Public Opinion: Swan V. Charlotte-Mechlenburg Board Of Education, James L. Hunt

Articles

The first three words of the preamble to the Constitution are "We the People." Yet the vast majority of constitutional scholarship is limited to the opinions of judges, lawyers, law professors, and other political and economic elites. This article takes a different approach to constitutional understanding. It describes the legal thoughts of the citizens for whom the Constitution exists. It does so through an analysis of the public's reaction to the federal court decisions in Swann v. Charlotte-Mecklenburg Board of Education, a desegregation case. The lead attorney for the Swann plaintiffs was Julius LeVonne Chambers, an alumnus and future …

Constitutional Criminal Procedure, Charles E. Cox Jr.

Mercer Law Review

Each year the United States Supreme Court and the United States Court of Appeals for the Eleventh Circuit issue numerous decisions concerning the rights afforded to criminal defendants by the United States Constitution. This Article surveys selected Eleventh Circuit and Supreme Court decisions issued in 2013 that will likely be of interest to criminal law practitioners.

Saving Their Own Souls: How Rluipa Failed To Deliver On Its Promises, Sarah Gerwig-Moore

Articles

In the summer of 2001, as a graduate student in law and theology, I began work on a master’s thesis that examined the predicament of men of faith on San Quentin’s Condemned Row. I was working in the California Appellate Project—mostly assisting with direct appeals and state habeas petitions on behalf of men under a death sentence—when a colleague guided me into theological conversations with some of our clients. On Condemned Row, they waited—up to five years to be assigned a court-appointed appellate attorney, on judges’ rulings, and to find whether the legal system would ultimately exact the penalty it …

The Democratic Aspect Of The Establishment Clause: A Refutation Of The Argument That The Clause Serves To Protect Religious Or Nonreligious Minorities, Patrick M. Garry

Mercer Law Review

A survey of Establishment Clause doctrines and commentary reveals that the Clause is often interpreted as a minority rights provision, protecting religious and nonreligious minorities from being exposed in certain ways to society's dominant religions. This Article argues against such an interpretation. It portrays the Establishment Clause as a structural provision of the Constitution, concerned with democratic processes and limited government, much like the doctrines of federalism and separation of powers. This Article also asserts that democratic values and concern for majority rule constitute core values of the Establishment Clause. Whereas the Free Exercise Clause protects minority rights, the Establishment …

Of Metaphor, Metonymy, And Corporate Money: Rhetorical Choices In Supreme Court Decisions On Campaign Finance Regulation, Linda L. Berger

Mercer Law Review

When a corporation participates in the public sphere, its participation often takes the form of money. Corporate money must be given to someone to bring corporate participation into being-money to spend on public relations, advertising, or lobbying, or money to spend in a political campaign. Though the form is the same, the Supreme Court has treated these modes of corporate participation very differently. On the one hand, corporate money is seen as speech when it is the means used for corporations to sell products or state positions on issues. On the other, a majority of the Rehnquist-O'Connor Court perceived corporate …

Constitutional Civil Rights, John Sanchez

Mercer Law Review

The 2000 survey period was an active year for constitutional civil rights litigation in the Eleventh Circuit. All eighteen cases examine thorny issues arising under the First Amendment. Thirteen cases address free speech issues while five cases touch on religion. Two cases deal with zoning ordinances that regulate adult businesses. Two cases address the constitutionality of zoning ordinances that regulate nude dancing. Two apply the test in Central Hudson Gas & Electric Corp. v. Public Service Commission ("Central Hudson") for regulating commercial speech. Two cases analyze the law of prior restraints when it comes to licensing access to traditional public …

Constitutional Criminal Procedure, James P. Fleissner, Sarah B. Mabery, Jeanne L. Wiggins

Mercer Law Review

This Article surveys noteworthy 2000 decisions of the United States Court of Appeals for the Eleventh Circuit in the field commonly known as Constitutional Criminal Procedure. As in past years, the survey focuses on significant decisions concerning the Fourth Amendment's protection against unreasonable searches and seizures; the Fifth Amendment's privilege against self-incrimination, prohibition against double jeopardy, and guarantees of due process and grand jury screening; and the Sixth Amendment's procedural protections, including the right to counsel and the right of confrontation. Of course, most of these rights, with few exceptions, such as the right to have charges approved by a …

National Endowment For The Arts V. Finley: First Amendment Free Speech No Longer Guaranteed For The Arts, Andrea Mccoy

Mercer Law Review

In National Endowment for the Arts v. Finley, the United States Supreme Court confronted the decency and respect criteria of the 1990 Amendment ("Amendment") to the National Foundation on the Arts and Humanities Act of 1965. At issue was whether the Amendment violated the First and Fifth Amendments of the United States Constitution by impermissibly discriminating based on viewpoint and being void for vagueness. The Supreme Court upheld the Amendment as facially valid.

Arkansas Educational Television Commission V. Forbes: Ending Debate On Political Debates, Daniel B. Greenfield

Mercer Law Review

In Arkansas Educational Television Commission v. Forbes, the Supreme Court of the United States addressed whether, and under what circumstances, a public television network may exclude a so-called "minor" candidate from its televised debate. The Court, voting six to three, reversed the decision of the United States Court of Appeals for the Eighth Circuit and upheld the right of the Arkansas Educational Television Commission to exclude the candidate. The Court held that the debate was a nonpublic forum and that a broadcaster could limit debate participants in the reasonable exercise of its journalistic discretion so long as the candidate …

Raines V. Byrd: A Death Knell For The Congressional Suit?, Adam L. Blank

Mercer Law Review

In Raines v. Byrd, the Supreme Court of the United States denied standing to six members of Congress who challenged the constitutionality of the Line Item Veto Act. In its first consideration of congressional standing in nearly two decades, the Court held that a perceived diminution in institutional voting strength did not create a sufficiently particularized injury in fact to satisfy the Article III "case or controversy" requirement.

Constitutional Civil Law, Albert Sidney Johnson

Mercer Law Review

The 1996 survey period was a reasonably quiet year for the United States Court of Appeals for the Eleventh Circuit in terms of dramatic developments in civil constitutional law. The most significant labor of the court of appeals was directed toward accommodation of developing law in the United States Supreme Court surrounding the application of evidentiary sufficiency standards to qualified immunity inquiries. The Eleventh Circuit continued its resolve against exercising pendent appellate jurisdiction in the aftermath of the Supreme Court's directive in Swint v. Chamber County Commission. The court of appeals had occasion to consider, in three separate contexts, …

Constitutional Criminal Procedure, James P. Fleissner

Mercer Law Review

The Fourth, Fifth, and Sixth Amendments of the United States Constitution are the three pillars of the American system of criminal justice. The three amendments make procedural guarantees using enigmatic terms that are given meaning by those with the power of interpretation. The Fourth Amendment protects us from "unreasonable searches and seizures." The Fifth Amendment includes a guarantee of "due process of law." The Sixth Amendment guarantees a "speedy" trial. In the years since 1791, when these provisions were enshrined in the Bill of Rights, the courts have played the leading role in shaping the scope of these broad pronouncements. …

44 Liquormart, Inc. V. Rhode Island: The Supreme Court Overturns A Ban On Liquor Price Advertising, Laura Harrison

Mercer Law Review

In 44 Liquormart, Inc. v. Rhode Island, two licensed liquor retailers brought suit against the Rhode Island Liquor Control Administrator to challenge the First Amendment validity of state statutes that banned the price advertising of alcoholic beverages. In a unanimous decision, the United States Supreme Court overturned the ban, a judgment which may render similar restrictions unconstitutional.

Constitutional Civil Law, Albert Sidney Johnson

Mercer Law Review

During the 1995 survey period, the United States Court of Appeals for the Eleventh Circuit ("Eleventh Circuit" or "Court") was influenced by the Supreme Court of the United States (the "Supreme Court"), application of the effect of its earlier decisions, and a number of cases of first impression. The Court was required to modify its long-standing practices of pendent appellate jurisdiction and scope of review in cases involving qualified immunity defenses. The Supreme Court's refinement of the definition of "deliberate indifference' influenced several of the Court decisions relating to the Cruel and Unusual Punishments Clause of the Eighth Amendment. The …

Constitutional Criminal Procedure, James P. Fleissner

Mercer Law Review

This Article surveys significant 1995 decisions of the United States Court of Appeals for the Eleventh Circuit in the field commonly referred to as "Constitutional Criminal Procedure." The primary focus of this branch of criminal procedure is on the interpretation of the Fourth, Fifth, and Sixth Amendments to the Constitution. In selecting notable cases from 1995, the author looked for important interpretations of legal tests, rulings in cases of first impression, and opinions on close or controversial questions. I have endeavored to provide criminal practitioners with a useful "briefing" on recent significant developments in the Eleventh Circuit. Furthermore, I hope …

Paranoia, Patriotism, And The Citizen Militia Movement: Constitutional Right Or Criminal Conduct?, R.J. Larizza

Mercer Law Review

As this country rushes towards the twenty first century, a growing cloud of civil unrest has found its way into the hearts of many Americans. In a bold move to challenge the power of the federal government, a significant number of American citizens have sought refuge from perceived government injustice by forming citizen militias. These self styled militia groups fear that the liberties guaranteed by the United States Constitution are rapidly evaporating in the wake of a federal government that has grown too large and powerful. For example, while addressing the Senate Subcommittee on terrorism, Norman Olson (Commander of the …

Constitutional Civil Law, Albert Sidney Johnson

Mercer Law Review

During the 1994 survey period, the United States Court of Appeals for the Eleventh Circuit experienced a period of consolidation and clarification in constitutional civil law. The application of the clearly established law test in qualified immunity determinations has become more consistent, favoring a fact-specific, circuit-based precedent rather than the more generalized test sometime applied by individual panels.

Several cases with constitutional implications were revisited en banc during the survey period producing a variety of results. In public employment cases and land use cases involving state created property rights, the Eleventh Circuit has retrenched and virtually abandoned any recognition of …

Constitutional Criminal Procedure, Edward D. Lukemire, John Lynch

Mercer Law Review

This year's survey of Eleventh Circuit criminal cases is primarily a review of those decisions which involve significant constitutional issues. As in recent years, a substantial number of the court's decisions resulted from drug prosecutions. This is due to the increase in federal resources devoted to drug prosecutions and the substantially longer sentences which often result from a federal drug conviction as compared to a state conviction for the same offense. The court also decided a great many cases involving issued interpreting the Federal Sentencing Guidelines. Even though these cases do not usually involve constitutional issues, the authors decided to …

Constitutional Criminal Law, Peggy Natale

Mercer Law Review

This year, the Eleventh Circuit issued opinions on a variety of criminal constitutional law cases, including decisions granting writs of habeas corpus on several death row inmates, and in three cases addressing ineffective assistance of counsel. What follows is a summary of some of the most important criminal constitutional cases for 1992. No effort has been made to make an exhaustive review of. all of the court's criminal cases for the year.