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Constitutional Restraints On Intrastate Distribution Of Taxing Authority, Walter Hellerstein

Scholarly Works

No abstract provided.

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 …

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 Right To Trial By Jury Shall Remain Inviolate: Jury Trials In Civil Actions In Georgia’S Courts, David E. Shipley

Scholarly Works

Trials, though rare, “shape almost every aspect of procedure,” and the jury trial is a distinctive feature of civil litigation in the United States. The Seventh Amendment of the U.S. Constitution ‘preserves’ the right to jury trial “[i]n suits at common law, where the value in controversy shall exceed twenty dollars.” Even though this amendment does not apply to the states, courts in the states “honor the right to the extent it is created in their constitutions or local statutes.”

The Georgia Constitution provides that “[t]he right to trial by jury shall remain inviolate,” and Georgia’s appellate courts have shown …

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 …

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 …

The Case For The Current Free Exercise Regime, Nathan Chapman

Scholarly Works

How the Supreme Court ought to implement the Free Exercise
Clause has been one of the most controversial issues in U.S. rights discourse
of the past fifty years. In Fulton v. City of Philadelphia, a majority of the
justices expressed dissatisfaction with the standard articulated in
Employment Division v. Smith, but they could not agree on what ought to
replace it. This Essay argues that focusing on whether to overrule Smith is a
distraction from the sensitive task of implementing the Free Exercise Clause.
This is not because Smith was “right,” but because (1) the history and
tradition are both …

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

Scholarly Works

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 …

American Religious Liberty Without (Much) Theory: A Review Of Religion And The American Constitutional Experiment, 5th Edition, Nathan S. Chapman

Scholarly Works

Book review of Religion and the American Constitutional Experiment, 5th ed. By John Witte Jr., Joel A. Nichols, and Richard W. Garnett. Oxford: Oxford University Press, 2022. Pp. 464. $150.00 (cloth); $39.95 (paper); $26.99 (digital). ISBN: 9780197587614.

National Federation Of Independent Business V. Sebelius, 567 U.S. 519 (2012), Elizabeth Weeks, Mary Ann Chirba, Alice A. Noble

Scholarly Works

In National Federation of Independent Business v. Sebelius, decided in 2012, twenty-six states as well as private individuals and an organization of independent businesses challenged the constitutionality of two key components of the Affordable Care Act. The Court upheld the individual mandate but converted the Medicaid eligibility expansion from mandatory to optional for states. Elizabeth Weeks’ feminist rewrite breaks down the public law-private law distinction to get beyond the traditional view of health insurance as a commercial product providing individual financial protection against risk and instead to view it as effecting a risk pool premised on cross-subsidization of the health-care …

Presuming Trustworthiness, Ronnell Anderson Jones, Sonja R. West

Scholarly Works

A half-century ago, the U.S. Supreme Court often praised speakers performing the press function. While the Justices acknowledged that press reports are sometimes inaccurate and that media motivations are at times less than public-serving, their laudatory statements nonetheless embraced a baseline presumption of the value and trustworthiness of press speech in general. Speech in the exercise of the press function, they told us, is vitally important to public discourse in a democracy and therefore worthy of protection even when it falls short of the ideal in a given instance. Those days are over. Our study of every reference to the …

Absolute Official Immunity In Constitutional Litigation, Michael L. Wells

Scholarly Works

Absolute official immunity blocks recovery for constitutional violations that occur in the course of legislative, judicial, prosecutorial, and testimonial functions, no matter how egregiously the officer has acted. The basic policy underlying the doctrine is that constitutional litigation will produce unacceptable social costs, mainly by discouraging officials from acting boldly and effectively in the public interest. It may be necessary to sacrifice the vindication of constitutional rights and deterrence of violations in some circumstances, but the Court’s broad function-based limits give too much weight to the costs of constitutional remedies and pays too little attention to the vindication and deterrence …

"The Arc Of The Moral Universe": Christian Eschatology And U.S. Constitutionalism, Nathan Chapman

Scholarly Works

At the heart of American constitutionalism is an irony. The United States is constitutionally committed to religious neutrality; the government may not take sides in religious disputes. Yet many features of constitutional law are inexplicable without their intellectual and cultural origins in religious beliefs, practices, and movements. The process of constitutionalization has been one of secularization. The most obvious example is perhaps also the most ideal of liberty of conscience that fueled religious disestablishment, free exercise, and equality was born of a Protestant view of the individual’s responsibility before God.

This Essay explores another overlooked instance of constitutional secularization. Many …

Tax Incentives In Three Common Markets, Sarah Khaled Alsultan

Georgia Journal of International & Comparative Law

There are three approaches to dealing with tax incentives within common markets: permit them, limit them, or harmonize them. Broadly speaking, the United States (U.S.) follows the first approach, the European Union (EU) adopts the second, and the Gulf Cooperation Council (GCC) pursues the third by harmonizing some tax incentives, particularly those offered to the industrial sector. Unlike the U.S. and EU common markets, where incentives have gained significant scholarly attention, no academic literature exists on the legal framework of tax incentives in GCC common market. This work attempts to compensate for this insufficiency in scholarship and compares the three …

Constitutionalism In The Land Of The Peaceful Thunder Dragon: The Kingdom Of Bhutan's Marbury Moment, Markus G. Puder, Ngawang Choden

Georgia Journal of International & Comparative Law

No abstract provided.

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 …

Las Medidas De “Acomodación” De La Religión En El Derecho Estadounidense [Accommodation Of Religion In U.S. Law], Michael W. Mcconnell, Nathan Chapman

Scholarly Works

En este trabajo se analizan las medidas de acomodación de la religión, que gozan de una gran tradición en el derecho constitucional de los Estados Unidos, así como los debates que han generado desde el punto de vista de su conformidad con las cláusulas de la Primera Enmienda de la Constitución de los Estados Unidos: la cláusula de no establecimiento de una religión oficial y la cláusula de libre ejercicio de la religión. A lo largo del trabajo se analiza la principal jurisprudencia recaída sobre las medidas de acomodación y los test que se han construido para enjuiciarlas.

[This paper …

Popular Enforcement Of Controversial Legislation, Randy Beck

Scholarly Works

Texas opted for popular enforcement of Senate Bill 8 (S.B. 8), prohibiting abortion once a fetal heartbeat can be detected. In an effort to prevent pre-enforcement judicial review, the legislature precluded enforcement of the statute by government officials. Instead, any member of the public may sue for statutory damages of at least $10,000 from any person who (1) performs an abortion violating the statute, (2) knowingly aids or abets such an abortion, or (3) “intends” to perform or aid and abet such an abortion.

The cause of action authorized by S.B. 8 is a “popular action,” a once common method …

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 …

How Chevron Deference Fits Into Article Iii, Kent H. Barnett

Scholarly Works

U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch, along with Professor Philip Hamburger, assert that Chevron deference-under which courts defer to reasonable agency statutory interpretations-violates Article III. Chevron does so because, they argue, it either permits agencies, not courts, "to say what the law is" or requires judges to forgo independent judgment by favoring the government's position. If they are correct, Congress could not require courts to accept reasonable agency statutory interpretations under any circumstances. This Article does what these critics, perhaps surprisingly, do not do-situates challenges to Chevron within the broad landscape of the Court's current Article III …

Fundamental Rights Or Hand-Me-Down Restrictions: The Specter Of Sumptuary Law In Clothing Expression Doctrines Of The U.K., The U.S., & Canada, Taran Harmon-Walker

Georgia Journal of International & Comparative Law

No abstract provided.

Invoke Your Right To Remain Silent After You Confess: Self-Reporting Regulations And Potential Conflicts With International Law Prohibiting Compulsory Self-Incrimination, Patrick Testa

Georgia Journal of International & Comparative Law

No abstract provided.

Bird's-Eye View: A Comparative Examination Of Drone Regulation Through The Lens Of Privacy Protection, Allison Mcgregor

Georgia Journal of International & Comparative Law

No abstract provided.

Catalytic Courts And Enforcement Of Constitutional Education Funding Provisions, Hugh Spitzer, Andy Omara

Georgia Journal of International & Comparative Law

It is well-recognized that it is easier for judges to enforce constitutional “negative rights” provisions than positive social and economic rights. This article focuses on the challenges of enforcing one specific positive right: the constitutional right of children to attend adequately funded schools. Our article tests on-the-ground judicial implementation of education funding provisions against the general theoretical framework of judicial interaction with the political branches developed by Katharine Young. We analyze how, in multi-year, multi-decision litigation, constitutional court judges in the three jurisdictions we studied actively experimented with the challenging task of forcing, or enticing, reluctant legislative and executive branches …

Some Objections To Strict Liability For Constitutional Torts, Michael Wells

Scholarly Works

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 …

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 …

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 …

Constitutional Foundations For Public Health Practice: Key Terms And Principles, Fazal Khan, Marice Ashe

Scholarly Works

This chapter introduces the structure of the government in the United States and the concept of “separation of powers" among the federal, state, and local governments. It introduces core legal principles from the U.S. Constitution that frame the authority of the government to enact and enforce laws to protect and promote the public's health. These Constitutional principles are essential for the health advocate and leader to understand because every federal, state, and local law must comply with them. The core principles include the enumerated powers of the federal government and the broad plenary powers of state and local governments—which we …

Originalism From The Soft Southern Strategy To The New Right: The Constitutional Politics Of Sam Ervin Jr, Logan E. Sawyer Iii

Scholarly Works

Although originalism’s emergence as an important theory of constitutional interpretation is usually attributed to efforts by the Reagan administration, the role the theory played in the South’s determined resistance to civil rights legislation in the 1960s actually helped create the Reagan coalition in the first place. North Carolina Senator Sam Ervin Jr., the constitutional theorist of the Southern Caucus, developed and deployed originalism because he saw its potential to stymie civil rights legislation and stabilize a Democratic coalition under significant stress. Ervin failed in those efforts, but his turn to originalism had lasting effects. The theory helped Ervin and other …