Law Commons^™

Complicated Mercy: Compensating The Wrongfully Convicted In Georgia, Elizabeth O'Roark

Georgia Law Review

An exoneree’s story does not end when they walk out of prison and back into society. After spending years in prison for a crime they did not commit, the exoneree must rebuild a life with years of lost income, little credit, and no retirement. Georgia is one of the few states that does not have a statute setting out how to fairly and efficiently compensate its exonerees. Exonerees must instead ask state representatives to present a resolution to the General Assembly. If the resolution passes through both chambers of the legislature, then the exoneree can receive some compensation for the …

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. …

Socially Distant Signing: Why Georgia Should Adopt Remote Will Execution In The Post-Covid World, Jessie Daniel Rankin

Georgia Law Review

In the wake of the COVID-19 pandemic, Georgia Governor Brian Kemp and other state governors issued emergency executive orders authorizing the attestation and execution of wills, trusts, and other testamentary documents through the use of audio-video technology. Most states have traditionally required that such testamentary documents be signed in the physical presence of two or more witnesses to be valid. Georgia’s executive order permits these witnesses to instead observe the signing via video-conferencing software, alleviating the requirement that the witnesses be physically present with the testator. This authorization, however, only exists through this executive order and could lapse or be …

Legal Work Ahead: Potential Potholes For The Hands-Free Georgia Act, Hunter G. Smith

Georgia Law Review

Georgia’s statutory regulation of distracted driving, the
Hands-Free Georgia Act, went into effect in July 2018. The Act
is rife with ambiguous and uncertain language that fails to
apprise drivers of the legal and practical consequences of their
actions. But in the three years since the Act’s passage, neither
the legislature nor the courts have addressed these issues.
With its many exceptions, the Act neither protects drivers’
constitutional rights nor adequately curtails dangerous
driving. Vagueness in the Act’s numerous exceptions, Fourth
Amendment concerns, and the potential for pretextual stops
and racial profiling present potential legal issues on which
litigants may …

Unintended Legislative Inertia, Mirit Eyal-Cohen

Georgia Law Review

Institutional and political forces create strong inertial
pressures that make updating legislation a difficult task. As a
result, laws often stagnate, leading to the continued existence of
obsolete rules and policies that serve long-forgotten purposes.
Recognizing this inertial power, legislatures over the last few
decades have increasingly relied on a perceived solution—
temporary legislation. In theory, this measure avoids inertia by
requiring legislators to choose to extend a law deliberately.
This Article argues that temporary legislation is a double-
edged sword. While some temporary laws ultimately expire,
many perpetuate through cycles of extension and
reauthorization. Temporary legislation often creates its …

Puppies, Puppies, Puppies: Why Georgia Should “Adopt” A Progressive Puppy Lemon Law And Engage In Much-Needed Statutory Reform, Jonathan T. Tortorici

Georgia Law Review

The Georgia Animal Protection Act—a set of animal
protection laws that has remained unchanged for nearly two
decades—was passed to promote animal welfare across the
state. Although the Act was progressive at its inception, its
failure to curb the atrocious conditions created by puppy mills
has become increasingly apparent, resulting in serious
consequences for both consumers and dogs. Georgia must
amend its animal protection laws to shift the costs of puppy
mills to where they belong: on pet sellers. Among other
innovative solutions to this problem, many states have enacted
“puppy lemon laws” that generally provide pet purchasers with
the …

Georgia’S Runoff Election System Has Run Its Course, Graham P. Goldberg

Georgia Law Review

Georgia requires candidates to earn a majority of
votes in their party’s primary to win elected office. The
majority-vote requirement—passed by the General
Assembly in 1964—is stained by racially-fraught
politics of the era, and even its alleged “good
government” goals are now antiquated. This Note
explores the history of Georgia’s majority-vote
requirement, examines two legal challenges to the law,
and analyzes its flaws and virtues. Finally, this Note
demonstrates that more appealing alternatives to the
majority-vote requirement exist and recommends that
Georgia replace its current runoff election system with
either ranked choice voting or a forty-percent
threshold-vote requirement.

The Independent State Legislature Doctrine, Federal Elections, And State Constitutions, Michael T. Morley

Georgia Law Review

The U.S. Constitution does not confer authority to regulate
federal elections on states as entities. Rather, it grants that
authority specifically to the “Legislature” of each state. The
“independent state legislature doctrine” teaches that a state
constitution is legally incapable of imposing substantive
restrictions on the authority over federal elections that the U.S.
Constitution confers directly upon a state’s legislature. Over the
past 130 years, the U.S. Supreme Court has repeatedly adopted
conflicting positions on this doctrine without recognizing its
deep historical roots or normative justifications.
The independent state legislature doctrine reflects the
prevailing understanding of states, Congress, and other …

Carrying Capacity: Should Georgia Enact Surrogacy Regulation?, Madeline Mae Neel

Georgia Law Review

While modern gestational surrogacy technology has existed for almost forty years, surrogacy is viewed as a matter of state law because the United States has yet to regulate it at the federal level. Many have advocated for either federal legislation or their own individual states to enact legislation addressing surrogacy, but Georgia is one of many states that still lacks any laws regulating—or even mentioning—surrogacy agreements. To make the process more uncertain for couples contemplating surrogacy, Georgia also lacks any case law that could provide parties to surrogacy agreements with guidance on how to proceed or how any dispute may …

Amazon’S Invincibility: The Effect Of Defective Third-Party Vendors’ Products On Amazon, Amy E. Shehan

Georgia Law Review

No abstract provided.

A “Critical” Question Of State Law: Georgia’S Ambiguous Treatment Of Initial Appearance Hearings And Implications Of Bail Reform, Anne Miller Reynolds

Georgia Law Review

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel at critical stages of a proceeding. While the U.S. Supreme Court has not addressed whether initial bail hearings are critical stages of a proceeding, several states have elected to provide greater protection for criminal defendants by holding that bail hearings are critical stages. However, Georgia has avoided this question, as Georgia has held that initial appearance hearings, in which questions of bail are often decided, are “not often” critical stages of a proceeding. Logically, it follows that initial appearance hearings must sometimes be critical stages of …

Education Under Fire?: An Analysis Of Campus Carry And University Autonomy In Georgia, Brooke Anne Carrington

Georgia Law Review

In 2017, Georgia’s controversial campus carry bill was signed into law despite protest from the state’s Board of Regents, university officials, and students. Georgia is one of ten states that has implemented campus carry. Georgia’s campus carry statute is unique in that it may conflict with Georgia’s Constitution, which vests the powers of “government, control, and management” of the University System of Georgia in the Board of Regents. Georgia courts have not yet addressed what this provision of the Constitution means. This Note applies general principles of constitutional interpretation to the provision.

This Note analyzes the framers’ intent when drafting …

How Devolved Is Too Devolved?: A Comparative Analysis Examining The Allocation Of Power Between State And Local Government Through The Lens Of The Confederate Monument Controversy, W. Davis Riddle

Georgia Law Review

At various critical junctures in our nation’s history, lawmakers have struggled to strike the proper balance between centralization and delegation of authority. Recently, the debate over whether to remove Confederate monuments has again brought to the fore this centuries-old struggle. Beginning in 2000, state legislatures throughout the South enacted statutes primarily designed to protect Civil War monuments, which in the South predominantly pay tribute to the Confederate cause. Recent attempts by Southern localities to remove Confederate monuments have revealed the inadequacy of these recently-enacted statutes. Virtually every state legislature that has successfully passed a statute on the topic has produced …

An Aggravating Adolescence: An Analysis Of Juvenile Convictions As Statutory Aggravators In Capital Cases, Lesley A. O'Neill

Georgia Law Review

In death penalty cases there is a requirement that
certain statutory aggravators must be present in order to
reach a death verdict. One such statutory aggravator in
most states is the defendant having previously committed
a felony, which can include crimes committed as a
juvenile. While the Supreme Court ruled in 2005 that
sentencing a defendant to death for crimes they committed
as a juvenile is unconstitutional, many states' death
penalty statutes allow for the possibility that the sole
aggravator relied on for a verdict of death is a previous
juvenile conviction. This Note argues that based on the
Court's …

Tennessee V. Fcc And The Clear Statement Rule, Lee D. Whatling

Georgia Law Review

In 2016, the Sixth Circuit in Tennessee v. FCC
overturned an FCC preemption order striking down state
laws that restricted municipal broadband providers from
servicing communities outside of their respective
municipal borders. The court held Congress had not
provided a clear statement in § 706 of the
Telecommunications Act of 1996 that it intended to grant
the FCC preemption power under these circumstances.
The immediate practical consequences of the decision were
that communities previously serviced by municipal
broadband providers, but located outside of municipal
borders, were now at the mercy of state laws that sought to
restrict that service.
This …

Publicly Funded Private Security: A Critical Examination Of Georgia Law Pertaining To The Private Employment Of Off-Duty Police Officers, Ryan L. Giles

Georgia Law Review

Generally, employers of private security guards are
vicariously liable for the actions of their employees. This
incentivizes employers to protect against unnecessary risks
to the public and to internalize the social costs of their
business activities. In Georgia, however, this centuries-old

doctrine of respondeat superior does not apply when a
private business hires an off-duty police officer.
Several consequences arise from the current state of the
law: inconsistency in application, unfairness to victims
and imprudent taxpayer subsidization of private
businesses. This Note illustrates that the current law is
both unjust and unwise by contrasting business liability
for police torts with …

The Elephant Not In The Room: Apportionment To Nonparties In Georgia, Michael K. Newman

Georgia Law Review

Apportionment to nonparties generally concerns defendants alleging that certain nonparties are also at fault for the plaintiffs harm. A defendant's successful allocation of fault to a nonparty results in the defendant shedding a portion of their liability toward the plaintiff. If joint and several liability has been abolished, then this means that the plaintiff will collect less damages from the named defendant. This Note addresses how current practice in Georgia allows the defendant to do this with very little effort. Specifically, this Note takes issue with a recent Georgia Court of Appeals decision, Double View Ventures, LLC v. Polite, 757 …

The Motor City Needs Oil (On Canvas): An Argument In Support Of Detroit's "Grand Bargain", Jonathan A. Weeks

Georgia Law Review

Now the largest municipality in the history of the United States to go bankrupt, Detroit very nearly lost its famous art collection to its creditors. To protect its collection, Detroit proposed what is now often referred to as the "grand bargain," which involved creating a corporation that paid $816 million for the entire art collection provided that the amount paid was earmarked for pension holders in Detroit. The deal resulted in realizing two goals: keeping the art collection in Detroit and protecting pensioners who faced a huge loss in the wake of the bankruptcy. Critics of the grand bargain claim …

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 …

Cybersecurity On My Mind: Protecting Georgia Consumers From Data Breaches, Maggie L. Mcmichael

Georgia Law Review

In a world where vast amounts of personal information
are obtained and stored by countless organizations and
businesses in the public and private sector, data breaches,

due to negligence or nefarious hacking, are a far too
common occurrence. The results of a data breach can be
serious and widespread, from public humiliation to
identity theft and national security crises. In an effort to
protect consumers from the potentially devastating effects
of data breaches, the Federal Trade Commission has
begun to take enforcement action against businesses whose
data security practices are alleged to be unfair and
deceptive. Theoretically, states can take …

Miscarriage Of Justice: The Cognizability Of § 2255 Claims For Erroneous Career Offender Sentences, Matthew B. Rosenthal

Georgia Law Review

Career offender sentencing enhancements present difficult questions for courts. One of the most difficult of these questions is deciding what crimes warrant the application of these serious enhancements. Federal courts sentencing defendants often must decide, with little guidance, what offenses constitute a "crime of violent" or "violent felony." On a few occasions, the Supreme Court has stepped in and told lower courts that certain crimes do not fit within these categories, and that their interpretation of the career offender enhancement is incorrect. Often, the recognition of this misapplication of the enhancements occurs years after an individual defendant has been convicted, …

Exemption From The Common Fate: Refuge For Individual Debtors Trapped By Structured Settlements, Factoring Companies, And The Bankruptcy Code In Georgia, Michael C. Sullivan

Georgia Law Review

While the number of tort filings has been increasing in recent decades, the number of trials resulting from these claims has been steadily declining. Instead of sacrificing time and resources in court, parties choose settlement, frequently in the form of a structured settlement where payments are dispersed over a period of time. These structured settlements provide much-needed security for tort victims, particularly those who unable to work and are especially vulnerable to losing their settlements. But what happens when these victims find that they have expenses that they cannot cover with their deferred payments? Many tort victims wind up facing …

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 …

Dangers In Justifying A Means For An End: U.S. Supreme Court Faces Risky Interpretation Question With Ppaca, Exchanges, And Premium Tax Credits, Erin M. Peterson

Georgia Law Review

This Note examines the text of the Patient Protection and Affordable Care Act to determine whether Congress intended for premium tax credits to be available on only state Exchanges, or on both state and federal Exchanges. This Note argues that strict textualism reveals that Congress clearly intended to limit premium tax credits to what the text defines as "an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act," which does not include federal Exchanges. However, this interpretation of the text nearly eliminates an essential function of the Patient Protection and Affordable Care Act …

(Don't) Give It Up Or Turnit A Loose: State Law Copyright Protection Of Pre-1972 Sound Recordings In Blank-Slate Jurisdictions Like Georgia, Payton M. Bradford

Georgia Law Review

The issue of pre-1972 sound recordings-devoid of federal copyright protection-has emerged as an important legal issue with changes in how musicians are collecting royalties for music. Sound recordings have a complicated and fragmented history under United States copyright law. While recognized as a separate form of creative work from musical compositions since the early twentieth century, they nonetheless remained unprotected as separate works under federal law until 1972. Any sound recordings fixed prior to February 15, 1972, however, remain unprotected under federal law and are subject to common law copyright or state statutes. A majority of states, including Georgia, lack …

Without A Pilot: Navigating The Space Between The First Amendment And State And Federal Directives Affecting Drone Journalism, Leah M. Davis

Georgia Law Review

A new player in American airspace, the drone, creates greater opportunities for news gathering. But with new opportunities, come new rules. Current legislatures, regulators and courts face the challenge of creating and enforcing a legal framework by which this new technology can be integrated into American airspace. The debate surrounding proper drone directives is influenced by competing policies of privacy, security, and First Amendment concerns. This Note surveys past and present state and federal directives on drone use, and argues for the creation of a separate set of guidelines for Press drones. Separate directives would ensure that news outlets are …

The Plaintiffs Keep Getting Richer, The Manufacturers Just Stay Poor: Design Defect Litigation In Georgia Post-Banks, Davis S. Popper

Georgia Law Review

How much proof of a reasonable alternative design is necessary to survive a claim for defective design and when should proof of a reasonable alternative design be denied as irrelevant to claims pertaining to products that exhibit open and obvious dangers? Design defect litigation is particularly important because it involves claims that take entire product lines out of the market and cost manufacturers exorbitant losses and expose them to steep damages. In these cases, plaintiffs often suffer life- changing injuries or death. In this Note, I provide a history of design defect litigation in the United States. In particular,I focus …

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 …

Liberty Without Capacity: Why States Should Ban Adolescent Driving, Vivian E. Hamilton

Georgia Law Review

Car crashes kill more teens each year than any other cause, and of the crashes in which they are involved, teens are overwhelmingly at fault. Teens crash at rates far higher than those of older drivers, and the younger the teen driver, the higher the risk-sixteen-year-old drivers have crash rates 250% higher than those of eighteen-year- olds. Driving experience does not explain the difference; younger beginners crash at rates higher than those of older beginners. Instead, younger teens' increased crash risk results primarily from immature regulatory competence. In other words, the capacities required for driving competence are still immature in …

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 …