Law Commons^™

Neuropsychological Malingering Determination: The Illusion Of Scientific Lie Detection, Chunlin Leonhard, Christoph Leonhard

Georgia Law Review

Humans believe that other humans lie, especially when stakes are high. Stakes can be very high in a courtroom, from substantial amounts of monetary damages in civil litigation to liberty or life in criminal cases. One of the most frequently disputed issues in U.S. courts is whether litigants are malingering when they allege physical or mental conditions for which they are seeking damages or which would allow them to avoid criminal punishment. Understandably, creating a scientific method to detect lies is very appealing to all persons engaged in lie detection. Neuropsychologists claim that they can use neuropsychological assessment tests (Malingering …

Boom Or Bust: Ensuring The Georgia State-Wide Business Court Fulfills Its Constitutional Promise, Roya Naghepour

Georgia Law Review

The United States judiciary includes specialized court systems within its baseline civil and criminal justice structure that provide more efficient and expert adjudication in a wide variety of areas. Since the creation of the Delaware Court of Chancery in 1792, many states have established specialized business courts with jurisdiction over commercial and corporate disputes. Today, many states have business court models, all choosing to employ some version of a specialized forum for corporate and commercial issues for the sake of judicial efficiency. The Georgia State-wide Business Court was established in 2019 with limited jurisdiction over narrow categories of commercial disputes. …

Assumed Facts And Blatant Contradictions In Qualified-Immunity Appeals, Bryan Lammon

Georgia Law Review

When a district court denies qualified immunity at summary
judgment, defendants have a limited right to immediately
appeal that decision. In Johnson v. Jones, the U.S. Supreme
Court held that courts hearing these appeals have jurisdiction
to address only whether the facts the district court took as true
in denying immunity amount to a clearly established violation
of federal law. They lack jurisdiction to look behind the facts
that the district court assumed were true to see whether the
evidence supports those facts. Despite this seemingly clear rule,
defendants regularly flout Johnson’s jurisdictional limits,
taking improper appeals that create extra …

Pretrial Detention Of Indigents: A Standard Analysis Of Due Process And Equal Protection Claims, Robert William G. Wright

Georgia Law Review

Over the past several years, criminal justice activists
have sought to reform misdemeanor bail policies that
condition pretrial release on an arrestee’s ability to pay
a predetermined cash bond. Activists have challenged
such bail polices by filing lawsuits on behalf on indigent
persons who have been exposed to such policies. Often,
these lawsuits allege that bail policies violate both the
Due Process and Equal Protection Clauses of the
Fourteenth Amendment. While due process and equal
protection analyses are generally well-defined, U.S.
Supreme Court precedent does not offer a clear analysis
for courts to apply to due process and equal protection …

Free Speech And Off-Label Rights, Amy J. Sepinwall

Georgia Law Review

When a litigant invokes a constitutional right to
protect interests different from the ones underpinning
the right, he engages in what this Article calls an
off-label rights exercise. The Free Speech Clause has
recently become an especially prominent, and troubling,
site of off-label rights exercises. Two of the most
prominent cases in the Supreme Court’s last term
involved litigants who invoked their constitutional
rights to free speech to protect interests unrelated to
speech or expression. In Janus v. American Federation
of State, County, & Municipal Employees, a state
employee argued that forcing him to pay for the union’s
bargaining activities …

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 …

The Meaning Of A Misdemeanor In A Post-Ferguson World: Evaluating The Reliability Of Prior Conviction Evidence, John D. King

Georgia Law Review

Despite evidence that America’s low-level courts are
overburdened, unreliable, and structurally biased,
sentencing judges continue to uncritically consider a
defendant’s criminal history in fashioning an
appropriate punishment. Misdemeanor courts lack
many of the procedural safeguards that are thought to
ensure accuracy and reliability. As with other stages of
the criminal justice system, people of color and poor
people are disproportionately burdened with the
inaccuracies of the misdemeanor system.
This Article examines instances in which sentencing
courts have looked behind the mere fact of a prior
conviction and assessed whether that prior conviction
offered any meaningful insight for the subsequent
sentence. …

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 …

Bailing On Bail: The Unconstitutionality Of Fixed, Monetary Bail Systems And Their Continued Use Throughout The United States, Margaret E. Margaret

Georgia Law Review

Incarceratingdefendants prior to trial was designed to be
the exception, not the norm. Many state and local
jurisdictionsthroughout the United States, however, employ
fixed, monetary bail systems that result in the systematic pre-
trial incarceration of indigent defendants solely because of
their inability to pay for their release. Not only do such bail
systems violate indigent defendants' constitutional rights,
they also contribute to the billions spent by local governments
each year on maintainingovercrowded jails and have lasting
effects on those indigent defendants wrongfully detained.
This Note explores the constitutionalityof fixed, monetary
bail systems through the lens of a recent Georgiacase, …

A Single Symbolic Dollar: How Nominal Damages Can Keep Lawsuits Alive, Megan E. Cambre

Georgia Law Review

The Eleventh Circuit's August 2017 opinion in
Flanigan's Enterprises v. City of Sandy Springs
deepened a circuit split regarding the role of
nominal damages in the justiciabilityanalysis. The
critical question is whether, in cases involving
constitutional violations, a claim for nominal
damages alone suffices to confer standing or to
defeat mootness when other forms of relief are
unavailable or moot. The Second, Fifth, and Ninth
Circuits have all held that nominal damages alone
are enough, but not without contention from
dissenting judges. The First, Third, Fourth,
Seventh, Eighth, and D.C. Circuitshave considered
the question-but have not conclusively decided its
answer. …

Cumulative Finality, Bryan Lammon

Georgia Law Review

A proper notice of appeal is a necessary first step in
most federal appeals. But federal litigants sometimes
file their notice of appeal early, before district court
proceedings have ended. When those proceedingsfinally
end and no new notice is filed, the law of cumulative
finality determines what effect-if any-the premature
notice has. Sometimes the notice is effective and the
appeal proceeds as normal. Sometimes it's not, and
litigants lose their right to appeal.
At least, that's how the law of cumulative finality looks
from a distance. Up close, the courts of appeals are
hopelessly divided on matters of cumulative finality. …

The Return Of The Unprovided-For Case, Michael S. Green

Georgia Law Review

The unprovided-for case is a puzzle that arises under
governmental interest analysis, the predominant choice-of-

law approach in the United States. As its name suggests,
in the unprovided-for case the law of no jurisdiction seems
to apply. There is a gap in the law. After its discovery by
Brainerd Currie in the 1950s, the unprovided-for case
proved to be an embarrassment for interest analysts and a
focal point for critics.
In 1989, however, Larry Kramer published an argument
that the unprovided-for case is a myth. There is no gap in
the law. Kramer's argument has been well-received, so
much so …

Protecting Access To The Great Writ: Equitable Tolling, Attorney Negligence, And Aedpa, Mandi R. Moroz

Georgia Law Review

Since the creation of the Antiterrorism and Effective
Death Penalty Act, attorneys have struggled to understand
and properly apply the Act's statute of limitations. As a
result, many attorneys have mistakenly filed federal
habeas petitions outside the Act's statute of limitations-
effectively barring their clients from federal court forever.
Attorneys who mistakenly misfile habeas petitions are left
with only one option: to request that the court equitably
toll the statute of limitations. While courts will not toll the
statute of limitations for mere negligence, courts are
divided on exactly what circumstances must exist before

allowing equitable tolling. Some courts require …

Spoliating The Adverse Inference Instruction: The Impact Of The 2015 Amendment To Federal Rule Of Civil Procedure 37(E), Alexandra M. Reynolds

Georgia Law Review

The discovery process relies heavily on the information
that we store on our electronic devices. The ease with
which we tap into the many capabilities of technology,
however, exposes litigants to a significant risk-spoliation
of evidence. Evidence may be spoliated accidentally or
intentionally, but when spoliation does occur, the party
seeking that evidence often seeks a remedy from the court.
The adverse inference instruction has functioned as one of
those remedies. Courts split on what level of culpability is
required to issue an adverse inference instruction. The
Rule 37(e) amendments attempt to address rising costs of
electronic discovery and resolve …

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.

From Ripe To Rotten: An Examination Of The Continued Utility Of The Ripeness Doctrine In Light Of The Modern Standing Doctrine, Michael A. Delgaudio

Georgia Law Review

First year law students are generally taught that the justiciability doctrines of standing and ripeness perform distinct functions that work together to help courts determine whether an Article III "case or controversy" exists in particular suits. The standing doctrine, it is said, assists courts in this inquiry by determining who can bring suit, whereas the ripeness doctrine assists them by determining when someone can bring suit. This theoretical distinction in the doctrines' functions is based on the original forms the standing and ripeness doctrines took. Over the course of the past century, however, the Supreme Court has altered the standing …

The Preliminary Injunction Standard In Diversity: A Typical Unguided Erie Choice, David E. Shipley

Georgia Law Review

The standard for granting preliminary injunctions in some states is not the same as the preliminary injunction standard that is followed in the federal district courts in the federal circuit where the state is located. For example, the interlocutory injunction standard in Georgia's superior courts is not as demanding as the preliminary injunction standard in Georgia's federal courts. Although state and federal courts in Georgia consider four similar factors in deciding whether to grant or deny provisional injunctive relief, a balancing or sliding scale approach can be used in Georgia's courts; the moving party need not prove all four of …

Laissez Fair:The Case For Alternative Litigation Funding And Assignment Of Lawsuit Proceeds In Georgia, David T. Adams

Georgia Law Review

This Note discusses the value of alternative litigation funding (ALF) and the legal challenges affecting the ALF industry in Georgia. More specifically, it identifies a way to maximize ALF's benefits for plaintiffs with personal tort and employment discrimination claims. Tort victims who are rendered incapable of working, and employees who have lost jobs because of workplace discrimination or retaliation,face immediate financial burdens-they may be unable to afford food, housing, health care, transportation, and other necessities. This economic pressure often forces plaintiffs to settle quickly for less than the value of the harm inflicted. But ALF companies offer a workable solution …

Give Ghosts A Chance: Why Federal Courts Should Cease Sanctioning Every Legal Ghostwriter, Blake G. Tanase

Georgia Law Review

For decades, federal judges have punished attorneys who draft documents for pro se litigants. Meanwhile, many states and the American Bar Association have come to accept this practice as beneficial for low-income litigants and the legal system at large. The Second Circuit recently broke from the federal tradition and found that an attorney's so-called "ghostwriting"of litigation documents for pro se litigants was not sanctionable conduct. That court noted the changes taking place at the state level and rejected other federal courts' justifications for sanctioning legal ghostwriting, but did not elaborate as to why legal ghostwriting should be considered acceptable attorney …

A Common Law Constitutionalism For The Right To Education, Scott R. Bauries

Georgia Law Review

This Article makes two claims, one descriptive and the other normative. The descriptive claim is that individual rights to education have not been realized under state constitutions because the currently dominant structure of education reform litigation prevents such realization. In state constitutional education clause claims, both pleadings and adjudication generally focus on the equality or adequacy of the system as a whole, rather than on any particular student's educational resources or attainment. The Article traces the roots of the currently dominant systemic approach, and finds these roots in federal institutional reform litigation. This systemic focus leads to a systemic, rather …

The Modern Trial And Evidence Law: Has The "Rambling Altercation" Become A Pedantic Joust?, Daniel D. Blinka

Georgia Law Review

This Article places the relationship between evidence
rules and the modern trial in a historical context. The
trial's foundation is in popular culture-lay witnesses
testifying before a lay jury. Eighteenth-century trials were
a "rambling altercation" between the defendant and his
accusers-unruly (literally), unstructured, very brief, and
less concerned with the "truth"than a socially acceptable
judgment. The modern trial's emergence in the nineteenth
century coincided with the professionalization of law, the
active involvement of lawyers as advocates, and the
sprouting of evidence rules to regulate both lawyers and
lay juries. Nonetheless, evidence law accommodated
prevailing lay culture in order to foster …

Searching For Truth In The American Law Of Evidence And Proof, D. Michael Risinger

Georgia Law Review

The ideology of the trial process puts discovery of truth
at center stage. This is made clear by the language of
Federal Rule of Evidence 102, upon which New Georgia
Rule of Evidence 24-1-1 is obviously based. Both of these
rules make the ascertainment of truth one of the two goals
of the trial (just determination being the other). However,
the term "truth" has been used in many ways in many
different contexts and traditions. What notion of truth did
the drafters have in mind?
This Article answers that question by reference to what
has come to be known as …

Jurisdictional Sequencing, Alan M. Trammell

Georgia Law Review

The Supreme Court has begun to grapple with the
problems presented by the doctrine of jurisdictional
sequencing-the decision of certain issues, and even the
dismissal of cases, before a federal court has verified its
subject matter jurisdiction. Recent jurisprudence has
created confusion as to what, if anything, a federal court
may do before it verifies subject matter jurisdiction.
Moreover, scholars and courts have struggled to discern
an underlying rationale for jurisdictional sequencing, and
no theory has been able to explain the case law fully or
offer a satisfying normative defense of the doctrine.

This Article develops a theory of jurisdictional …

War Of The Words: Why False Statements Should Be Guaranteed First Amendment Protection, Virginia R. Priddy

Georgia Law Review

In Haley v. State, the Georgia Supreme Court upheld
the conviction of Andrew Scott Haley for making a false
statement. Haley created a username and posted videos to
the Internet in which he claimed to have committed a
series of murders, goading his audience to try to solve the
"mysteries." Haley was convicted under a Georgia statute
that proscribes the making of a false statement within the
jurisdiction of an agency or department of state of Georgia.
After discussing the historical legal and philosophical
underpinnings of the First Amendment right to free
speech, this Note argues that the Georgia statute …

A Reliance Approach To Precedent, Hillel Y. Levin

Georgia Law Review

Why and when should courts presumptively defer to their
own past precedents? The doctrine of precedent lies at the
core of American jurisprudence and legal practice, but the
source of its normative force remains unclear.
Consequently, its application is confused and contested.
In this Article, I argue that precedent matters because
and to the extent that it generates reliance interests on the
part of the public. Although I am not the first to suggest
that reliance is the foundational justification for deference
to precedent, this Article represents the first sustained effort
to defend the reliance approach in deontological terms and …

Collapsing Suspect Class With Suspect Classification: Why Strict Scrutiny Is Too Strict And Maybe Not Strict Enough, Sonu Bedi

Georgia Law Review

While scholarly work often analyzes the nature and scope
of the Court's tiers of scrutiny approach to enforcing
equality, this Article examines the underlying theory of
equal protection. This Article mounts a challenge to the
theory of higher scrutiny, and, in particular,strict scrutiny.
It seeks to analyze two questions: (1) What principles trigger
heightened scrutiny? and (2) Why does the Court need to
subject laws that discriminate on the basis of race to strict
scrutiny? The first question concerns the underlying theory
of equal protection doctrine: the "what" of higher scrutiny.
Scholarly work that seeks to answer this question rightly …

State Power To Define Jurisdiction, Samuel P. Jordan, Christopher K. Bader

Georgia Law Review

States should have broader authority to decline
jurisdiction over federal claims. The normative
considerations supporting this doctrine of "reverse
abstention" have been developed in previous work. But
what of the Constitution? The traditional reading,
reflected in existing precedent, asserts that the Supremacy
Clause, Article III, and perhaps Article I operate together
to create an inflexible obligation for state courts to hear
federal claims. This reading is misguided. The
Supremacy Clause contains no jurisdictional obligation of
its own force, but only gives supreme effect to other validly
enacted federal laws. And no other clause provides the
authority to impose such an …

The Curious Case Of Differing Literary Emphases: The Contrast Between The Use Of Scientific Publications At Pretrial Daubert Hearings And At Trial, Ronald L. Carlson

Georgia Law Review

An expert's testimony at a pretrial Daubert hearing is
frequently supported by professional writings. Technical
literature is employed by litigants to buttress controversial
scientific theories and research. By way of example, a
plaintiff's attorney may urge that an alleged toxic
substance caused his or her client's cancer. The objective
in providing the court with learned texts and articles is to
convince the trial judge to admit expert opinions that
support causation. This Article reports appellate opinions
that strongly encourage production of professional
writings in the pretrial context. Indeed, in several cases
the absence of published research resulted in defeat of …

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 …