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Legal Ethics, Roy M. Sobelson

Mercer Law Review

This Article covers the rules, cases, ethics opinions, and other matters decided by the Georgia Supreme Court, the Georgia Court of Appeals, and a federal district court between June 1, 1998, and May 31, 1999, that have most affected, or may affect, Georgia lawyers. Many eyepopping headlines about lawyers and their profession filled the survey period. Although very few of the underlying cases made or changed any substantive law, they may well have substantially altered the landscape of lawyering, creating or illuminating various pitfalls and land mines.

One Georgia lawyer, disbarred for murdering his landlord, avoided the death penalty only …

Evidence, Marc T. Treadwell

Mercer Law Review

The survey period saw a number of cases raising significant evidentiary issues. Most notable is the continuing evolution of the necessity exception to the rule against hearsay. During the survey period, the Supreme Court added a third prong to the test for the admission of evidence pursuant to the necessity exception, and thus seemingly narrowed the scope of the exception. However, the court also expanded the circumstances that constitute the "unavailability" of a witness. The net effect seems to be an expansion of the necessity exception.

Local Government Law, R. Perry Sentell Jr.

Mercer Law Review

The City Attorney served (in those days) simultaneously as Judge of the Recorder's Court. On convening that court one Monday morning, he was shocked to see one of the community's most prominent citizens before him, charged with "drunk and disorderly."

I inquired as to the type of plea he wished to enter. Evidently having heard of "nolo contendere" but not remembering the exact nature or pronunciation of the plea, the citizen responded: "I would like to plead low profile."

The "law" of local government, both decisional and statutory, frequently fosters a similar sentiment.

Criminal Law, Franklin J. Hogue, Laura D. Hogue

Mercer Law Review

The Georgia Court of Appeals and Supreme Court produce a prodigious number of opinions in criminal cases every year. We reviewed 940 cases for this reporting period. We refrained from straying outside the reporting period, even though one recent case of significance tempted us greatly. Look for it in next year's review. We are trial lawyers, so we organized this article in roughly the order in which issues may arise in the average case. If no opinions of note came out of the appellate courts in a given area of law, such as in the area of bonds and pretrial …

Real Property, T. Daniel Brannan, William J. Sheppard

Mercer Law Review

This Article surveys case law and legislative developments in the area of real property law in Georgia during the period from June 1, 1998, to May 31, 1999. As in past surveys, the authors do not attempt to chronicle each case and statute that affects real property law. Rather, the authors selected the decisions and statutes discussed in this Article for their significance and interest to participants in the everyday practice of real estate law in this state. Several cases decided during the survey period present issues on which the appellate courts were sharply divided and provide lively discussions of …

Federal Sentencing Guidelines, James T. Skuthan, Rosemary T. Cakmis

Mercer Law Review

The Eleventh Circuit decided several cases this past year covering a broad range of United States Sentencing Guidelines ("U.S.S.G.") issues. Two areas of particular concern were firearms and departures.

Due to the 1995 Supreme Court decision in Bailey v. United States, several defendants had their firearm convictions vacated and were resentenced. Thus, the Eleventh Circuit in 1998 was faced with reviewing these resentencings to determine the applicability of guideline enhancements for firearms.

The court also decided several cases relating to downward departures based on cultural differences, a defendant's impulse control disorder, the over-representation of a career offender's prior record, …

Constitutional Criminal Procedure: A Two Year Survey, James P. Fleissner, Jeffrey R. Harris

Mercer Law Review

This Article surveys significant constitutional criminal procedure decisions of the United States Court of Appeals for the Eleventh Circuit issued during 1997 and 1998. The "constitutional" branch of criminal procedure focuses on the interpretation of the Fourth, Fifth, and Sixth Amendments to the United States Constitution. In selecting "significant" decisions, we emphasized questions of first impression, other noteworthy cases, and issues likely to interest attorneys practicing in the courts of the Eleventh Circuit. We have endeavored to summarize the selected decisions and provide commentary that, hopefully, will illuminate the issues and assist the reader in understanding the importance and implications …

Appellate Practice And Procedure, William M. Droze, Andrea L. Siedlecki

Mercer Law Review

Appellate practice and procedure often dictates the resolution of cases presented for review. Although procedural rules are not implemented in a vacuum, and the particular facts and legal questions raised by each case necessarily determine their application, an analysis of appellate practice provides a valuable tool in assessing judicial trends by portraying the judicial character in a manner that transcends the peculiar circumstances of a given case.

An evaluation of recent appellate practice reveals an increased emphasis on judicial economy and efficiency. During 1998, the Eleventh Circuit appeared aware of the necessity of providing practitioners, parties, and lower courts with …

A Panel Discussion On A Proposed Code Of Ethics For Legal Commentators

Mercer Law Review

Featuring:

• Raymond M. Brown
• Paul Butler
• Erwin Chemerinsky
• Johnnie L. Cochran, Jr.
• Laurie L. Levenson
• John H. McElhaney
• Barry C. Scheck
• Mary Tillotson

Moderator: Professor James P. Fleissner

Gebser V. Lago Vista Independent School District: School District Remains Afloat In Title Ix Litigation Floodwater, Richard A. Weller

Mercer Law Review

In Gebser v. Lago Vista Independent School District, the United States Supreme Court held that a school district could not be held liable under Title IX for a teacher's sexual harassment of a student without actual notice and deliberate indifference. In a five to four decision, the Court affirmed summary judgment in favor of the school district.'

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.

Symposium Introduction, Jennifer L. Motos, Jacob E. Daly

Mercer Law Review

No abstract provided.

The Ethics Of Being A Commentator Iii, Erwin Chemerinsky, Laurie Levenson

Mercer Law Review

The use of lawyers and law professors as commentators continues to increase. Although reporters have long used experts to explain and evaluate, in the last decade legal commentators have become a fixture in news stories about legal proceedings. A decade ago, when the McMartin Preschool case filled the news in Los Angeles, scarcely a commentator was used. A few years later, when the officers who beat Rodney King were tried in state court, daily legal commentary was absent. In sharp contrast, commentators were used on a regular basis during the federal prosecution of those officers. The subsequent trial of two …

The Calling Of Criminal Defense, Abbe Smith, William Montross

Mercer Law Review

INTRODUCTION: A HOSTILE CLIMATE FOR CRIMINAL DEFENSE LAWYERS AND OUR CLIENTS

Criminal defense work is an increasingly difficult undertaking in these harsh times. Blame is a favorite pastime. Vengeance follows close behind. Compassion for those who commit wrongdoing out of misfortune seems either nostalgic or naive. Instead, there is a universal call for individual accountability; wrongdoers ought to be held strictly responsible for their actions, no matter the circumstance.

Along with blame and vengeance comes a lust for punishment. The public cannot seem to get enough of it. The United States is building prisons at a record pace. If the …

Blackmail From A To Z: A Reply To Joseph Isenbergh's "Blackmail From A To C", Walker Block, Robert W. Mcgee

Mercer Law Review

The long and the short of blackmail is that it consists of two acts, each of which, were they to occur alone, would be considered legal by everyone. Yet somehow, when these elements occur together, virtually all commentators who have ever written on the subject consider the complex act consisting of both elements to be unlawful. There is only a corporal's guard that demurs. Is the mainstream view due perhaps to some sort of alchemy? How else can two legal "rights" be rendered a "wrong" when they take place in tandem?

Let us consider the specifics. Which two acts together …