Law Commons^™

Construction Law, Frank O. Brown Jr.

Mercer Law Review

This Article focuses on noteworthy opinions by Georgia appellate courts between June 1, 2015 and May 31, 2016 relevant to the practice of construction law and on an important amendment to Official Code of Georgia Annotated (O.C.G.A.) section 13-8-2,1 expanding its anti-indemnity provisions.

Torts, Phillip Comer Griffeth, Christopher R. Breault, Christopher Barwick Newbern

Mercer Law Review

This Article surveys recent developments in Georgia tort law between June 1, 2015 and May 31, 2016.

Workers' Compensation, H. Michael Bagley, J. Benson Ward

Mercer Law Review

The 2015 - 2016 survey period featured decisions of the appellate courts impacting the workers' compensation system on issues ranging from willful misconduct to statutes of limitations.

Open Chambers Revisited: Demystifying The Inner Workings And Culture Of The Georgia Court Of Appeals, Stephen Louis A. Dillard

Mercer Law Review

I was sitting in my cluttered but comfortable office, preparing for what would ultimately be my last hearing as a lawyer, when the phone rang. On the other end of the line was Governor Sonny Perdue's executive assistant: "Mr. Dillard, do you have time to speak with the governor?" I did, of course. And less than two weeks after that brief but life-changing conversation with Governor Perdue, I was one of Georgia's two newlyappointed appellate judges (and the seventy-third judge to serve on the court of appeals since 1906).

Over six years have passed now, and during that time a …

Business Associations, Edward P. Bonapfel, E. Bowen Reichert Shoemaker

Mercer Law Review

This Article surveys notable cases in the areas of corporate, limited liability company, partnership, agency, and joint venture law decided between June 1, 2015 and May 31, 2016, by the Georgia Supreme Court, the Georgia Court of Appeals, and the United States district courts located in Georgia.

Criminal Law, Bernadette C. Crucilla

Mercer Law Review

As in prior periods, this year's survey of criminal law will include only a few of the most significant cases and statutory amendments. Due to the constant evolution of criminal laws in our society, it is simply not practical to attempt to make note of every legal development. Therefore, the discussion is limited to those changes that will have the widest application and interest to criminal law practitioners for the period from June 1, 2015 through May 31, 2016.

Domestic Relations, Barry B. Mcgough, Elinor H. Hitt, Katherine C. Mcguire

Mercer Law Review

This Article addresses significant case law that arose in Georgia domestic relations law from June 1, 2015 to May 31, 2016.

Evidence, John E. Hall Jr., W. Scott Henwood, Jacque Smith Clarke

Mercer Law Review

This year represents the third full survey period during which the "new" Georgia Evidence Code, Official Code of Georgia Annotated (O.C.G.A.) title 24, is in effect. These new rules took effect on January 1, 2013. The rules conform in large part to the Federal Rules of Evidence and have continued to change the face of evidence law in Georgia, which continues to develop from last year. This Survey highlights cases decided by the Georgia Court of Appeals and Georgia Supreme Court between June 1, 2015 and May 31, 2016 that have made an impact on evidence law in Georgia. This …

Insurance, Maren R. Cave, Stephen Schatz, Bradley S. Wolff

Mercer Law Review

A number of matters of first impression in Georgia were addressed during this survey period, including who bears the burden of establishing whether a vehicle is "uninsured," whether the use of a formula in establishing diminished value is bad faith, and what the trigger date is for coverage for claims of malicious prosecution and negligent repair. Additionally, the Georgia Supreme Court squarely and definitely addressed whether lead-based paint is a "pollutant" for purposes of a pollution exclusion in a Commercial General Liability (CGL) Policy.

Labor & Employment Law, W. Melvin Haas Iii, William M. Clifton Iii, W. Jonathan Martin Ii, Alyssa K. Peters

Mercer Law Review

This Article surveys revisions to the Official Code of Georgia Annotated (O.C.G.A.) and decisions interpreting Georgia law from June 1, 2015 to May 31, 2016 that affect labor and employment relations for Georgia employers.

Legal Ethics, Patrick Emery Longan

Mercer Law Review

This Survey covers the period from June 1, 2015 to May 31, 2016.1 The Article discusses attorney discipline, ineffective assistance of counsel, legal malpractice and breach of fiduciary duty, judicial ethics, several miscellaneous cases involving legal ethics, opinions of the Formal Advisory Opinion Board, and amendments to the Georgia Rules of Professional Conduct.

Real Property, Linda S. Finley

Mercer Law Review

This Article looks at notable issues regarding Georgia real property law during the survey period, including legislation enacted by the Georgia General Assembly and case law decided in Georgia courts. The Author is happy to report she no longer feels compelled to begin the Survey by discussing the dire economic conditions of the state of Georgia or, indeed, the United States as a whole. At the time of the writing of this Survey, RealtyTrac, which reports national foreclosure statistics, released its mid-year 2016 foreclosure report showing that foreclosure activity affecting Georgia real property in the month of July 2016 was …

Wills, Trusts, Guardianships, And Fiduciary Administration, Mary F. Radford

Mercer Law Review

This Article describes selected cases and significant legislation from the period of June 1, 2015 through May 31, 2016 that pertain to Georgia fiduciary law and estate planning.

Trial Practice And Procedure, Brandon L. Peak, Tedra C. Hobson, David T. Rohwedder, Robert H. Snyder, Joseph M. Colwell, Christopher B. Mcdaniel, Rory A. Weeks

Mercer Law Review

This Article addresses several significant opinions and legislation of interest to the Georgia civil trial practitioner issued during the Survey period of this publication.

Georgia's Safe Harbor Ruling For Affirmative Defenses In Criminal Cases Should Be Revisited, Ben W. Studdard, Michal A. Arndt

Mercer Law Review

The State has the entire burden of proving the defendant's guilt of the offense charged beyond a reasonable doubt, reads the instruction given to every jury empaneled to try a criminal case in Georgia. The defendant has no burden of proof at all. Where the evidence raises a defense, the burden remains with the State to negate or disprove that defense beyond a reasonable doubt. But those same Georgia citizens, when summoned to federal jury service, may hear a very different instruction: that the defendant, upon raising an affirmative defense, has the burden of proof as to that defense, by …

Administrative Law, Jennifer B. Alewine, Courtney E. Ferrell, Erin G. Watstein

Mercer Law Review

This Article surveys cases from the Georgia Supreme Court and the Georgia Court of Appeals from June 1, 2015 to May 31, 2016, in which principles of administrative law were a central focus of the case.' Exhaustion of administrative remedies will be the first topic discussed, to be followed by standard of review of an agency decision, then on to statutory construction, with sovereign immunity and discretionary appeals to follow, and the article will conclude with a brief review of enactments from the 2016 regular session of the Georgia General Assembly.

Local Government Law, Ken E. Jarrard

Mercer Law Review

No abstract provided.

Evidence, W. Randall Bassett, Val Leppert, Stephen A. Mccullers

Mercer Law Review

The 2015 term of the United States Court of Appeals for the Eleventh Circuit included precedential opinions on a variety of important evidentiary issues. Several Eleventh Circuit cases, as well as a key decision from the United States Supreme Court, further explored the contours of the Confrontation Clause. The Eleventh Circuit also considered a number of cases regarding the admissibility of expert testimony at trial. These cases seem to continue the Eleventh Circuit's recent trend of applying greater scrutiny to lower court decisions excluding expert evidence, while applying a more deferential standard when the lower court allowed expert evidence.

Also …

(Not So) Desperate Times Call For (Not So) Desperate Measures: The First Use Of Remand Without Vacatur In The Eleventh Circuit, Rebekah L. Hogg

Mercer Law Review

In Black Warrior Riverkeeper, Inc. v. United States Army Corps of Engineers, as a matter of first impression for the United States Court of Appeals for the Eleventh Circuit, the court of appeals issued "remand without vacatur." In civil cases, remand without vacatur applies solely to suits questioning the validity of federal administrative regulations, and courts use this remedy sparingly. Just five circuit courts have applied remand without vacatur, and only the United States Court of Appeals for the District of Columbia has employed the remedy with any frequency. Black Warrior Riverkeeper involved two environmental groups alleging the Army …

Electronic Discovery, K. Alex Khoury

Mercer Law Review

The most significant developments in electronic discovery (E-Discovery) law in the Eleventh Circuit in 2015 were the latest amendments to the Federal Rules of Civil Procedure (Amendments), which went into effect on December 1, 2015. As with the last round of amendments in 2006, the 2015 Amendments primarily addressed the rapidly expanding and evolving practice of E-Discovery. Some of the amendments are minor tweaks to existing rules that will have little or no impact on current precedent. Other amendments introduce entirely new rules designed to give the courts and the parties new tools to corral the beast that is E-Discovery. …

Admiralty, John P. Kavanagh Jr.

Mercer Law Review

The cases discussed herein represent decisions the United States Court of Appeals for the Eleventh Circuit issued in 2014 and 2015. While not an all-inclusive list of maritime decisions from the court during that timeframe, the Author identified and provided summaries of key decisions which should be of interest to the maritime practitioner.

Bankruptcy, John T. Laney Iii, Nicholas J. Garcia

Mercer Law Review

This Article is a review of bankruptcy opinions issued in 2015 by the United States Supreme Court, the United States Court of Appeals for the Eleventh Circuit, and the district courts and bankruptcy courts within the Eleventh Circuit. This Article covers issues regarding the following bankruptcy topics: lien stripping, exemptions, fraudulent transfers, the discharge injunction, executory contracts, and conversion.

Class Actions, Thomas M. Byrne, Stacey Mcgavin Mohr

Mercer Law Review

The United States Court of Appeals for the Eleventh Circuit encountered some of the most controversial issues in class action law during 2015, including several that required the court to apply recent United States Supreme Court decisions or to choose sides on issues that have divided the circuit courts of appeal.

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

Clearly the most significant case handed down during the 2015 survey period was the March 2015 decision by the United States Supreme Court in Young v. United Parcel Service, Inc. In Young, the Supreme Court decided that the Pregnancy Discrimination Act (PDA) does, in fact, require employers to offer workplace accommodations to pregnant employees in order to remain on the job. This case has almost certainly required a host of employers to review and probably revise the leave policies they had in place prior to the decision being handed down. Otherwise, the 2015 survey period was a busy, …

Federal Taxation, Robert Beard, Gregory S. Lucas

Mercer Law Review

In the year 2015, the federal courts in the United States Court of Appeals for Eleventh Circuit's appellate jurisdiction addressed an issue of first impression involving tax credits for research expenditures, interpreted new Supreme Court precedent on the enforcement of summonses issued by the Internal Revenue Service (IRS), and applied state law doctrines of transferee liability in the context of "Midco" tax shelters. This Article surveys those decisions.

Immigration, Charles H. Kuck, Keith N. Jensen

Mercer Law Review

During the January 1, 2015 to December 31, 2015 survey period, the Eleventh Circuit courts decided hundreds of cases affecting immigration law. The following is a discussion of some of those decisions that clarified important issues pertaining to immigration law in the Eleventh Circuit.

Labor And Employment Law, W. Jonathan Martin Ii, F. Damon Kitchen, Gary R. Wheeler

Mercer Law Review

This Article surveys the United States Court of Appeals for the Eleventh Circuit precedent from January 1, 2015 to December 31, 2015. The following is a discussion of those opinions.

Trial Practice And Procedure, John O'Shea Sullivan, Ashby K. Fox, Tala Amirfazli

Mercer Law Review

The 2015 survey period yielded noteworthy decisions relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit,' several of which involved issues of first impression. This Article analyzes recent developments in the Eleventh Circuit, including significant rulings in the areas of arbitration, appellate practice, civil procedure, and statutory interpretation.

An Onerous Burden: The Impact Of Nassar Upon Mcdonnell Douglas In The Eleventh Circuit, Alec Chappell

Mercer Law Review

Following a flood of employment discrimination and retaliation cases, the United States Supreme Court in University of Texas Southwestern Medical Center v. Nassar announced that an employee alleging retaliation must prove that the employer's motive to retaliate constituted a "but for" cause of the actions adverse to the employee. In addition to creating an awkward and unprecedented union of employment law and traditional tort principles of causation,' this decision upended the conventional application of the framework set forth in McDonnell Douglas Corp. v. Green and left the lower courts to pick up the pieces. ...

This Comment explores the responses …

Environmental Law, Travis M. Trimble

Mercer Law Review

In 2015, the United States Court of Appeals for the Eleventh Circuit decided novel issues in two cases under the Clean Water Act (CWA). In Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers, the court held remand of a Corps of Engineers permitting decision for reconsideration without also vacating the permit is a remedy within the court's discretion and was appropriate under the circumstances. In Riverkeeper v. U.S. Environmental Protection Agency, the court held appellate review of a non-final response by the Environmental Protection Agency (EPA) to a petition to withdraw Alabama's authority to administer the …