Digital Commons Network^™

Testing The Limits Of Virtual Compliance: Website Accessibility, "Tester" Plaintiffs, And Article Iii Standing Under The Ada, Ashlyn Dewberry

Georgia Law Review

Federal courts have split in determining whether “tester” plaintiffs bringing suit under the ADA assert the requisite injury in fact necessary for Article III standing. These “website accessibility testers” allege that defendants’ websites do not make certain information available to disabled persons in violation of Title III of the ADA and one of its implementing regulations. This split presents an excellent opportunity to clarify which informational and stigmatic harms qualify as injuries in fact for Article III standing purposes. This Note argues that ADA website accessibility testers cannot obtain standing under current law. Neither the text of the ADA nor …

The Problem Of Extravagant Inferences, Cass Sunstein

Georgia Law Review

Judges and lawyers sometimes act as if a constitutional or statutory term must, as a matter of semantics, be understood to have a particular meaning, when it could easily be understood to have another meaning, or several other meanings. When judges and lawyers act as if a legal term has a unique semantic meaning, even though it does not, they should be seen to be drawing extravagant inferences. Some constitutional provisions are treated this way; consider the idea that the vesting of executive power in a President of the United States necessarily includes the power to remove, at will, a …

Constitutional Text, Founding Era History, And The Independent-State-Legislature Theory, Dan T. Coenen

Georgia Law Review

One question raised by proponents of the so-called independent-state-legislature theory concerns the extent to which state courts can apply state constitutional requirements to invalidate state laws that concern federal elections. According to one proposed application of the theory, state courts can never subject such laws to state-constitution-based judicial review. According to another application, federal courts can broadly, though not invariably, foreclose state courts from drawing on state constitutions to invalidate federal-election-related state legislation. This article evaluates whether either of these positions comports with the original meaning of the Constitution. Given the article’s focus on the originalist methodology, it directs attention …

A Fourteenth Century Solution To A Twenty-First Century Problem: Using Qui Tam Legislation To Limit Executive War Power, Nicholas R. Lewis

Georgia Law Review

The United States was founded on the principle that Congress alone has the power to take the nation to war. This founding principle has failed. In its place now stands the modern principle that the Executive holds the power to initiate, wage, and conclude warfare. This modern principle, which is irreconcilable with the intent of America’s Founders, is a problem that must be remedied. And while this problem may be most pronounced in the twenty-first century, a possible solution comes from the most unlikely of places: fourteenth century England. In the 1300s, England developed qui tam legislation, a novel legal …

Hiv No Longer A Death Sentence But Still A Life Sentence: The Constitutionality Of Hiv Criminalization Under The Eighth Amendment, Lauren Taylor

Georgia Law Review

When the HIV/AIDS epidemic began in the 1980s in the United States, there was mass confusion and hysteria regarding HIV transmission and prevention, leading many states to enact HIV criminalization statutes to prosecute persons living with HIV who either exposed another person to HIV or put someone in danger of being exposed to HIV. Yet, almost forty years later, these statutes are still used to criminalize and control the behaviors of people living with HIV, and in some cases, impose lengthy prison sentences hinging on the possibility of exposure. These HIV criminalization statutes and subsequent criminal cases often do not …

The Gig Economy’S Short Reach: An Analysis Of The Scope Of The Federal Arbitration Act’S “Transportation Worker” Exemption, Emina Sadic Herzberger

Georgia Law Review

The Federal Arbitration Act (FAA) governs arbitration agreements in the United States. Section 1 of the FAA provides an exemption from arbitration for “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” In a 2001 decision, Circuit City Stores, Inc. v. Adams, the U.S. Supreme Court held that the residual phrase “any other class of workers engaged in foreign or interstate commerce” includes transportation workers. But, such language is ambiguous, and the Supreme Court did not expound upon what it means to be a transportation worker or to be engaged …

Finding Original Public Meaning, James Macleod

Georgia Law Review

Textualists seek to interpret statutes consistent with their “original public meaning” (OPM). To find it, they ask an avowedly empirical question: how would ordinary readers have understood the statute’s terms at the time of their enactment? But as the Supreme Court’s decision in Bostock v. Clayton County highlights, merely asking an empirical question doesn’t preclude interpretive controversy. In considering how Title VII applies to LGBT people, the Bostock majority and dissents vehemently disagreed over the statute’s bar on discrimination “because of sex”—each side claiming that OPM clearly supported its interpretation. So who, if anyone, was right? And how can textualists’ …

Squaring A Circle: Advice And Consent, Faithful Execution, And The Vacancies Reform Act, Ronald J. Krotoszynski, Atticus Deprospo

Georgia Law Review

Successive presidents have interpreted the Federal
Vacancies Reform Act of 1998 to authorize the appointment of
principal officers on a temporary basis. Despite serving in a
mere “acting” capacity and without the Senate’s approval, these
acting principal officers nevertheless wield the full powers of
the office. The best argument in favor of this constitutionally
dubious practice is that an acting principal officer is not really
a “principal officer” under the U.S. Constitution because she
only serves for a limited period. Although not facially specious,
this claim elides the most important legal fact: an acting
principal officer may exercise the full …

Some Objections To Strict Liability For Constitutional Torts, Michael L. Wells

Georgia Law Review

Qualified immunity protects officials from damages for
constitutional violations unless they have violated “clearly
established” rights. Local governments enjoy no immunity, but
they may not be sued on a vicarious liability theory for
constitutional violations committed by their employees. Critics
of the current regime would overturn these rules in order to
vindicate constitutional rights and deter violations. This
Article argues that across-the-board abolition of these limits on
liability would be unwise as the costs would outweigh the
benefits. In some contexts, however, exceptions may be justified.
Much of the recent controversy surrounding qualified
immunity involves suits in which police officers …

The Inherent And Supervisory Power, Jeffrey C. Dobbins

Georgia Law Review

Parties to litigation expect courts to operate both
predictably and fairly. A core part of this expectation is
the presence of codified rules of procedure, which ensure
fairness while constraining, and making more
predictable, the ebb and flow of litigation.
Within the courts of this country, however, there is a
font of authority over procedure that courts often turn to
in circumstances when they claim that there is no
written guidance. This authority, referred to as the
“inherent” or “supervisory” power of courts, is an almost
pure expression of a court’s exercise of discretion in that
it gives courts the …

Public Rights, Private Privileges, And Article Iii, John Harrison

Georgia Law Review

PUBLIC RIGHTS, PRIVATE PRIVILEGES, AND ARTICLE III John Harrison* This Article addresses the constitutional justification for adjudication by executive agencies that rests on the presence of a public right. The public rights rationale originated in the nineteenth century and was for many decades the dominant explanation for the performance of adjudicative functions by executive agencies. The U.S. Supreme Court most recently relied on that rationale in Oil States Energy Services v. Greene’s Energy Group in 2018. In light of the Court’s interest in the nineteenth century system, this Article explores that system in depth and seeks to identify the ways …

Intergovernmental Federalism Disputes, Lochlan F. Shelfer

Georgia Law Review

Constitutional litigation is increasingly being waged
between governments, in both suits between a state and
the United States, and suits between two or more states.
The jurisdictionof the Federalcourts to hear such suits,
however, is disputed. The Supreme Court's cases are
famously difficult to reconcile, with some denying
jurisdiction and other seemingly identical cases
addressing the merits without discussing jurisdiction.
Some scholars have argued that intergovernmental
disputes over political jurisdiction historically are not
justiciableand that it is constitutionally illegitimate for
the Court to hear them. Recently, some scholars have
argued that the Court should hear such cases, but have
assumed …

Constitutional Preservation And The Judicial Review Of Partisan Gerrymanders, Edward B. Foley

Georgia Law Review

This Essay makes three contributions to the debate
over whether the Constitution contains a judicially
enforceable constrain on gerrymanders. First,it directly
tackles the Chief Justice'sfear of thejudiciaryappearing
partisan,observing that the same fear would exist if the
Constitution explicitly banned gerrymanders and
explaining why an implicit ban should be no less
judicially enforceable than an explicit ban under
Marbury v. Madison. Second, invoking the idea of
"institutional forbearance" in the important new book
How Democracies Die, the Essay shows how the
Elections Clause can be construed to protect
congressional districting from abuses of legislative
discretion committed by state legislatures. Together,
these …

You Have The Right To Free Speech: Retaliatory Arrests And The Pretext Of Probable Cause, Katherine G. Howard

Georgia Law Review

An important question about an individual's First
Amendment freedoms arises when a citizen or journalist is
arrested while verbally challenging, filming, or writing
about police actions. Did the police officer have legitimate
law enforcement reasons for the arrest, or was the arrest in
retaliationfor engaging in First Amendment activities the
officer did not like? Courts have grappled with the best
way to resolve this question, often importing the Fourth
Amendment's bright-line rule about probable cause into
analyses of FirstAmendment retaliatoryarrest claims and
barringthose claims were the officer had probable cause to
arrest. This Note argues that when retaliatory arrest
claims …

The Original Meaning Of "Emoluments" In The Constitution, Robert G. Natelson

Georgia Law Review

THE ORIGINAL MEANING OF
"EMOLUMENTS" IN THE CONSTITUTION
Robert G. Natelson*
This Article explores the original meaning of the
word "Emolument(s)" in the Constitution. It identifies
four common definitions in founding-era political
discourse. It places the constitutional use within its
context as part of a larger reform movement in Britain
and America and as driven by other historical events.
The Article examines how the word was employed in
contemporaneous reform measures, in official
congressional and state documents, in the
constitutional debates, and in the constitutional text.
The author concludes that the three appearances of
"emoluments" in the Constitution had a …

Judging Congressional Elections, Lisa M. Manheim

Georgia Law Review

A pivotal clause of our Constitution suffers from
uncertainty and neglect. The result has scrambled the law
of contested congressional elections. These high-stakes
disputes turn on questions of procedure, and in particular
on questions of forum. Yet across the country, an
unpredictable and ad hoc set of regimes governs these
fundamental questions. The culprit behind the confusion
is Article I, Section 5 of the United States Constitution,
which states that "Each House shall be the Judge of the
Elections ... of its own Members." This command may
seem straightforward, if a bit unsettling-it allows
Congress to decide who has won …

Originalism And Level Of Generality, Peter J. Smith

Georgia Law Review

Even if one concedes that the meaning of the
Constitution today is its original meaning, at what level of
generality should one seek that meaning? In considering
whether bans on same-sex marriageviolate the Fourteenth
Amendment, for example, should we seek to determine how
the framers of the Amendment would have answered that
question, or should we instead seek to discern the broad
principle-perhaps "equality" or "no caste-like
discrimination"-that the Amendment objectively
incorporated, even if application of that principle today
might produce results that the framers would not have
anticipated? The level of generality at which we ask the
question almost …

Trans-Lating The Eighth Amendment Standard: The First Circuit's Denial Of A Transgender Prisoner's Constitutional Right To Medical Treatment, Bethany L. Edmondson

Georgia Law Review

In December of 2014, the First Circuit Court of Appeals
held, en banc, that the Massachusetts Department of
Corrections was not constitutionally obligated to provide
Michelle Kosilek, a transgender prisoner, with sexual
reassignment surgery. Kosilek sued the prison, arguing
that her Eighth Amendment rights against cruel and
unusual punishment were violated. The First Circuit held
that Kosilek did not have a serious medical need, due to
the prison's alternative treatment, and that the prison was
not deliberately indifferent to that need. This Note argues
that the First Circuit erred in applying the "serious
medical need" prong of the cruel and …

You've Got Legal Mail: Applying Constitutional Protections To Attorney-Inmate E-Mail Communications, Gregory R. Steele

Georgia Law Review

Several U.S. Attorney's offices have begun to read e-mails between defense attorneys and their inmate-clients sent through the Bureau of Prisons TRULINCS system. District courts have been split on how they address the issue. This Note argues that the practice of reading attorney-inmate e- mails violates the Sixth Amendment. It specifically argues that the legal mail doctrine should be applied to invalidate this practice. It then argues the Bureau of Prisons should promulgate new regulations for legal e-mail that ensure compliance with the constitutional requirements of the newly applied legal e-mail doctrine.

Outsourcing, Data Insourcing, And The Irrelevant Constitution, Kimberly N. Brown

Georgia Law Review

Long before revelations of the National Security Agency's data collection programs grabbed headlines, scholars and the press decried the burgeoning harms to privacy that metadata mining and new surveillance technologies present. Through publicly accessible social media sites, web-tracking technologies, private data mining consolidators, and its own databases, the government is just a mouse click away from a wealth of intimate personal information that was virtually inaccessible only a decade ago. At the heart of the conundrum is the government's ability to source an unprecedented amount of personal data from private third parties. This trail of digital information is being insourced …

Our Constitutional Commons, Brigham Daniels, Blake Hudson

Georgia Law Review

While much has been written about the U.S. Constitution, very little if anything at all, has been said about the ways in which the Constitution shares attributes with the commons. This Article examines the Constitution and the efforts to influence the shape and scope of its application through the lenses developed by scholars for assessing both common good and public good resources. Focusing on these interrelated lenses provides a unique perspective on both the U.S. Constitution and those attempting to influence its text and its interpretation. The synergy and interaction between the common good and public good dimensions of the …

Originalism And History, Justice John P. Stevens (Ret.)

Georgia Law Review

The notion that a jurisprudence of "original intent" will constrain the discretion of judges who seek to impose their own policy preferences on the law has often been attributed to a speech delivered by Edwin Meese, then-Attorney General of the United States, to an American Bar Association audience on July 9, 1985. In that speech the Attorney General was particularly critical of Supreme Court opinions relying on the Due Process Clause of the Fourteenth Amendment as a basis for requiring the states to adhere to specific provisions of the Bill of Rights. "[N]owhere else [he said,] has the principle of …

Defeating A Wolf Clad As A Wolf: Formalism And Functionalism In Separation-Of-Powers Suits Against The Consumer Financial Protection Bureau, Lee A. Deneen

Georgia Law Review

In 2010, the Court decided Free Enterprise Fund, engaging in a substantially formalist analysis of the President's removal power. That same year, Congress authorized creation of the Consumer Financial Protection Bureau, a federal agency with significant regulatory and enforcement power over the consumer finance industry. Within three years of that legislation, two lawsuits have challenged the CFPB's structure. This Note evaluates the arguments of the CFPB's opponents against the backdrop of Free Enterprise Fund and the Roberts Court's other formalist decisions. Although one might expect complaints against the CFPB to be lodged solely in formalist terms, the CFPB's opponents have …

When Silence Ought To Be Golden: Why The Supreme Court Should Uphold The Selective Silence Doctrine In The Wake Of Salinas V. Texas, Evelyn A. French

Georgia Law Review

At the Supreme Court recently resolved in Salinas v. Texas, a person who voluntarily agrees to be interviewed by the police and remains silent to a particular question, but does not invoke his Fifth Amendment right to remain silent, cannot rely on his Fifth Amendment right to protect his silence from being used as evidence of his guilt at trial. A question left open by the Court, however, is whether a defendant in a post-Miranda interrogation can rely on his right to remain silent by refusing to answer certain questions and not fear these refusals will be used as evidence …

Beyond A Reasonable Doubt: The Constitutionality Of Georgia's Burden Of Proof In Executing The Mentally Retarded, Veronica M. O'Grady

Georgia Law Review

In 2002, the Supreme Court in Atkins v. Virginia announced that executing mentally retarded defendants violates the Constitution. Georgia's standard for determining whether a criminal defendant is mentally retarded-and therefore ineligible for the death penalty- is the highest in the nation, requiring defendants to prove mental retardation to a jury, during the guilt and innocence phase, beyond a reasonable doubt. As in the case of Warren Lee Hill, Jr., this high burden necessarily results in Georgia executing defendants who are almost certainly mentally retarded,arguably violating the Atkins directive. Though once the first state to create a ban on executing the …

Justifying A Prudential Solution To The Williamson County Ripeness Puzzle, Katherine M. Crocker

Georgia Law Review

In the much-maligned 1985 case Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, the Supreme Court articulated a rule of "ripeness" requiring most Fifth Amendment regulatory- takings claimants to seek 'just compensation" in state court before attempting to litigate in federal court. Williamson County and its progeny have opened a Pandora's box of unforeseen complications, spawning many more questions than they purported to answer. At the forefront is what kind of requirement the rule is anyway. This Article contends that reading Williamson County as grounded in the Constitution (specifically, in Article III or the Fifth Amendment) runs …

Safe Haven No Longer: The Role Of Georgia Courts And Private Probation Companies In Sustaining A De Facto Debtors' Prison System, Sarah D. Bellacicco

Georgia Law Review

Georgia was specifically established as a colony for debtors-a haven where they could be safe from imprisonment. It is a haven no longer. Georgia courts are regularly imprisoning people for failing to pay debts, often through probation revocation of probationers who have failed to pay a fine or fee imposed as a condition of probation. Some of these probationers are on probation solely because they could not pay a fine on the day of sentencing, a practice which greatly increases the amount they owe due to the additional probation fees imposed. In Bearden v. Georgia, the Supreme Court held that …

Constructive Upheaval: Railway Labor Executives'ass'n V. Gibbons And The "Choice Of Clause" Challenge To Traditions Of Statutory Construction, Jordan C. Seal

Georgia Law Review

When confronted with constitutional challenges to
Congress's legislative authority, courts must build their
analyses on an interpretation of the statute's language.
Such cases implicate principles of statutory construction
that lay the groundwork for the rulings that follow.
Throughout American judicial history, courts have
favored flexible interpretation to protect Congress's
enactments from constitutional attack. The Supreme
Court's decision in Railway Labor Executives' Association
v. Gibbons dramatically departed from that tradition,
suggesting instead that legislation should be categorized
as a particular type of law to ensure that Congress does
not overstep the boundaries of its enumerated powers.
Although its shift in perspective …

Interagency Litigation And Article Iii, Joseph W. Mead

Georgia Law Review

Agencies of the United States often find themselves on
opposite sides of the "v. " in disputes ranging from alleged
unfair labor practices in federal agencies, to competing
statutory interpretations, to run-of-the mill squabbles over
money. Yet Article III's case-or-controversy requirement

includes--at a minimum-adverse parties and standing.
Courts have disagreed with one another over the extent to
which litigation between the sovereign and itself meets
Article III standards. Despite the volume of scholarship
on Article III standing, relatively little attention has been
paid to Article III's requirement of adverse parties in
general, or the justiciability of intrabranch litigation in
particular. …

Foreign States Are Foreign States: Why Foreign State-Owned Corporations Are Not Persons Under The Due Process Clause, Frederick W. Vaughan

Georgia Law Review

If foreign states are not "persons"under the Due Process
Clause, do foreign state-owned corporations still enjoy the
same protections as their privately owned counterparts?
This is an important question because state-owned entities
are a prevalent fixture in an increasingly global economy.
Courts confronted with the issue, however, have attempted
to resolve it by resorting to a policy-based analysis. In
doing so, they have distorted fundamental constitutional
principles.
This Note explains this distortion by discussing the
trend among leading courts of not recognizing states as
"persons" under the Due Process Clause and by examining
the meaning of "foreign state" under the …