Law Commons^™

Administrative Law, Martin M. Wilson, Jennifer A. Blackburn

Mercer Law Review

This Article surveys cases from the Georgia Supreme Court and the Georgia Court of Appeals from June 1, 2005 through May 31, 2006 in which principles of administrative law were either illuminated or formed an important piece of the decisionmaking. For a change, the Authors observed a significant decrease in the number of reported cases during the survey period, but that drop should certainly not be interpreted as any type of trend. No attempt has been made to survey cases that would properly fall under categories of more specific articles in this issue, although some degree of overlap is inevitable …

Appellate Practice And Procedure, Roland F.L. Hall

Mercer Law Review

This Article surveys decisions addressing appellate law and procedure handed down by the Georgia appellate courts between June 1, 2005 and May 31, 2006. The cases discussed fall within three categories: (1) appellate jurisdiction; (2) preserving the record; and (3) miscellaneous cases of interest.

Business Associations, Paul A. Quirós, Lynn S. Scott, William B. Shearer Iii

Mercer Law Review

This Article surveys noteworthy cases in the areas of corporate, partnership, and limited liability company law decided during the survey period by the Georgia Supreme Court, the Georgia Court of Appeals, the United States Court of Appeals for the Eleventh Circuit, and the United States district courts located in Georgia. This Article also summarizes enactments at the 2006 Session of the Georgia General Assembly to the Official Code of Georgia Annotated ("O.C.G.A.") with respect to commerce, corporation, partnership, and associations law.

Construction Law, Henry L. Balkcom Iv, Dana R. Grantham, Devin H. Gordon

Mercer Law Review

This Article surveys construction law decisions handed down by Georgia courts and construction-related legislation enacted by the Georgia General Assembly between June 1, 2005 and May 31, 2006. As in prior years, the cases discussed are divided into five categories: (1) contracts, (2) torts, (3) mechanics and materialmen's liens, (4) arbitration, and (5) miscellaneous. Recent legislation is highlighted and summarized in Section VI, including a brief overview of the General Assembly's substantial revisions to Georgia's "Right to Repair" Act, the mandatory alternative dispute resolution framework that the legislature put in place in 2004 for residential construction defect claims in Georgia.

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

Mercer Law Review

The tension between prosecuting those charged with violating the laws of this state and defending the rights of those accused of having committed crimes sets the stage for the multitude of opinions from the Georgia Court of Appeals and the Georgia Supreme Court in the field of criminal law. As always, we strive to present cases that will assist attorneys in their practice, either by surveying cases that present careful reiteration of age-old principles or by surveying cases that alter old rules or establish new ones. We limit our Article to cases that affect the practice of criminal law but …

Death Penalty Law, Therese M. Day

Mercer Law Review

This Article provides a survey of death penalty case law in Georgia from June 1, 2005 through May 31, 2006. The cases include those that the Georgia Supreme Court heard on interim appeal, direct appeal, and on review of habeas corpus decisions. Two recent decisions of the United States Supreme Court are also included because of their relevance to Georgia death penalty law. While there have been recent significant statutory changes affecting capital litigation in Georgia, those changes are beyond the purview of this Article and therefore will not be discussed. Likewise, holdings in capital cases that are common to …

Domestic Relations, Barry B. Mcgough, Gregory R. Miller

Mercer Law Review

This survey period saw continued changes to domestic relations law in Georgia. The Georgia General Assembly completed its sweeping revisions of the child support guidelines. The electorate passed an amendment to the Georgia Constitution defining "marriage." The Georgia Supreme Court extended its 2003 pilot project for the third year, agreeing to accept all "non-frivolous" applications filed in divorce and alimony cases during the 2006 calendar year. As a result, all persons interested in domestic relations law have benefited from many more substantive decisions from the appellate courts.

Evidence, Marc T. Treadwell

Mercer Law Review

The most significant news during the current survey year continued to be the major legislative developments discussed in last year's survey. Most significantly, the Georgia General Assembly, during its 2005 session, enacted Official Code of Georgia Annotated ("O.C.G.A.") section 24-9-67.1, which purports to adopt, more or less, the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. and its progeny, and creates special rules for expert testimony in medical negligence actions. In other words, Daubert has now come to Georgia and, as discussed below, there were both legislative and judicial developments regarding Georgia's new expert witness …

Labor And Employment Law, W. Melvin Haas Iii, William M. Clifton Iii, W. Jonathan Martin Ii

Mercer Law Review

This Article surveys recent developments in state statutory and common law that affect labor and employment relations of Georgia employers. Accordingly, it surveys published decisions from the Georgia Court of Appeals and Georgia Supreme Court from June 1, 2005 to May 31, 2006. This Article also highlights specific revisions to the Official Code of Georgia Annotated.

Legal Ethics, Patrick Emery Longan

Mercer Law Review

This Article summarizes the major developments in legal ethics in Georgia between June 1, 2005 and May 31, 2006. The Article covers discipline of lawyers, ineffective assistance of counsel, attorney fees and liens, contempt, disqualification, malpractice (and other claims against lawyers), judicial ethics, unauthorized practice of law, and one case on attorney authority.

Insurance, Stephen M. Schatz, Stephen L. Cotter, Bradley S. Wolff

Mercer Law Review

For the second year in a row, Georgia appellate courts have emphasized that even if the slightest doubt exists as to whether a liability insurance policy provides coverage for a loss, an insurer should provide a defense to the insured for the lawsuit or face potentially detrimental consequences out of the insurer's control, which the insurer will have little or no ability to alter after a judgment has been rendered against the insured. Several other recent decisions have made significant changes to insurance law as well. Some of the decisions indicate that it is becoming increasingly difficult for an insurer …

Local Government Law, R. Perry Sentell

Mercer Law Review

In the early 1950's, condemnation was rare and political suicide. A popular limited access road was being delayed by a farmer. When the State survey crew showed up, the farmer was standing at a fence with his shotgun. He never moved, but the survey crew would not go beyond the fence.

After the Attorney General, District Attorney, and Sheriff failed, the assignment devolved to the County Attorney. I walked up to the fence. "John, we have known each other a long time." "You take one step further," replied the farmer, "and we will not know each other for a longer …

Product Liability, Franklin P. Brannen Jr., Richard L. Sizemore, Jacob E. Daly

Mercer Law Review

This Article surveys recent developments in Georgia product liability law. It covers noteworthy cases decided during the survey period by Georgia appellate courts, the Eleventh Circuit Court of Appeals, and United States district courts located in Georgia. In addition, this Article discusses relevant legislative enactments by the Georgia General Assembly revising the Official Code of Georgia Annotated ("O.C.G.A.").

Real Property, Linda S. Finley

Mercer Law Review

This Article discusses case law and legislative developments in Georgia real property law from June 1, 2005 through May 31, 2006. The cases and legislation discussed here were chosen at times for their significance to real property law or to update attorneys who either regularly or from time to time practice or render opinions regarding real property, and at times simply for their unusual or thought-provoking facts.

Torts, Deron R. Hicks

Mercer Law Review

No abstract provided.

Trial Practice And Procedure, Bruce P. Brown, Jonathan R. Friedman, Michael R. Boorman, Benjamin J. Vinson

Mercer Law Review

This Article surveys noteworthy cases in the field of civil trial practice during the survey period1 by the Georgia Supreme Court and the Georgia Court of Appeals and relevant enactments by the Georgia General Assembly. This Article does not address the related and important topic of evidence, which is addressed in a separate survey. After describing relevant legislation, this Article surveys developments in trial practice in the order that they would be encountered in the typical case: pleadings, discovery, motions practice, juries and jury selection, statements and arguments of counsel, trial motions, jury instructions, and verdict forms.

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

Mercer Law Review

This Article describes the significant Georgia cases and legislation from the period of June 1, 2005 through May 31, 2006 that pertain to Georgia fiduciary law. Specifically, the Article covers cases and legislation on matters relating to wills, trusts, the administration of decedents' estates, and the guardianship and conservatorship of minors and incapacitated adults.

Workers' Compensation, H. Michael Bagley, Daniel C. Kniffen, Katherine D. Dixon

Mercer Law Review

There was minimal legislation during the 2006 term of the Georgia General Assembly that impacted workers' compensation. In fact, most of the legislative changes could be characterized as general housekeeping measures. For example, Official Code of Georgia Annotated ("O.C.G.A.") section 34-9-104 was changed to make its wording consistent with that found in other sections of the Workers' Compensation Act. The mandate that the employee shall receive notice from the employer was changed to provide that the employer shall send notice to the employee. The time limit for submitting mileage expenses was clarified as running one year from the date that …

Zoning And Land Use Law, Dennis J. Webb Jr., Marcia Mccrory Ernst, Victor A. Ellis, Amitabha Bose, Joseph L. Cooley

Mercer Law Review

This Article provides a succinct and practical analysis of the significant judicial decisions in the area of zoning and land use law handed down by Georgia appellate courts between June 1, 2005 and May 31, 2006. The cases surveyed fall primarily within five categories: (1) condemnation, (2) restrictive covenants, (3) easements, (4) zoning, and (5) miscellaneous.

Admiralty, Robert S. Glenn Jr., Colin A. Mcrae, Jessica L. Mcclellan

Mercer Law Review

The Eleventh Circuit Court of Appeals handed down eight published opinions during the 2005 calendar year that dealt distinctively with admiralty issues. The cases represented a broad spectrum of traditional maritime issues, as the court issued opinions on such varied topics as salvage, admiralty practice and procedure, limitation of liability, the Longshore and Harbor Workers' Compensation Act, marine insurance, the Vessel Hull Design Protection Act, and the doctrine of forum non conveniens. With this diverse range of topics covered in its 2005 opinions, the Eleventh Circuit remains one of this country's most important admiralty circuits.

Bankruptcy, James D. Walker Jr., Amber Nickell

Mercer Law Review

Never underestimate the persistence of the credit lobby. In the most significant development in bankruptcy law since last year's Article, Congress finally, after eight years of trying, enacted bankruptcy reform legislation in the form of the Bankruptcy Abuse Prevention and Consumer Protection Act ("BAPCPA" or the "Act"). At least one judge has stated that "to call the Act a 'consumer protection' Act is the grossest of misnomers." Indeed, the Act creates new roadblocks for entrance into bankruptcy, such as the pre-petition credit counseling requirement and Chapter 7 means testing; limiting or eliminating the protection of the automatic stay for repeat …

Class Actions, Thomas M. Byrne

Mercer Law Review

After an eventful 2004, in which the Eleventh Circuit Court of Appeals explored in depth the class certification requirements of Rule 23 of the Federal Rules of Civil Procedure, the court's 2005 docket presented more threshold questions concerning whether or not putative class actions could proceed past the pleading stage. The court's most important class action decisions during the year addressed the efficacy of contract provisions designed to preclude class actions in favor of individual arbitration proceedings. This issue is among the most controversial in class action law, as many businesses have turned to using standard arbitration provisions to curtail …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

The 2005 survey period saw a continuation of the diminished number of published decisions by the Eleventh Circuit Court of Appeals in the area of employment discrimination. However, it is interesting to note that the Eleventh Circuit also handed down at least 141 unpublished opinions in employment discrimination cases. Accordingly, while this trend may mean that the topic of employment discrimination is still very much alive and well within the Eleventh Circuit, it may also indicate that there are fewer unsettled questions of law in this area. However, this does not mean that the 2005 survey period was insignificant

Environmental Law, Travis M. Trimble

Mercer Law Review

In 2005 the Eleventh Circuit courts addressed issues of regulatory interpretation of the Clean Air Act ("CAA"); compliance with the National Environmental Policy Act ("NEPA) in connection with the development of wetlands; and a conflict between the Federal Emergency Management Agency's ("FEMA") coastal flood insurance program and the Endangered Species Act ("ESA"). First, the Eleventh Circuit Court of Appeals invalidated a rule of the Alabama Department of Environmental Management that exempted certain stack emissions that otherwise violated the State Implementation Plan under the CAA. Also, the United States District Court for the Northern District of Alabama heard one of several …

Evidence, Marc T. Treadwell

Mercer Law Review

This survey year saw the continuation of what has become a clear trend in Eleventh Circuit evidence decisions. In stark contrast to the days when the Eleventh Circuit rigorously examined district court evidentiary decisions and freely reversed those decisions, the Eleventh Circuit now studiously defers to district judges. The reason for this trend can be debated. Perhaps because most evidentiary issues addressed by the Eleventh Circuit arise in the context of criminal cases, and because Eleventh Circuit judges are more conservative today, the Eleventh Circuit is less likely to reverse criminal convictions, particularly on evidentiary grounds. Or perhaps that the …

Federal Taxation, Michael H. Plowgian, Svetoslav S. Minkov, T. Wesley Brinkley

Mercer Law Review

The courts in the Eleventh Circuit were involved in a number of relatively prominent tax related cases in 2005. Two cases that were previously highlighted in this publication were overturned on appeal. The United States Supreme Court reversed and remanded the Eleventh Circuit in the tax procedure case of Ballard v. Commissioner. In addition, the Eleventh Circuit reversed the United States District Court for the Southern District of Florida in American Bankers Insurance Group, Inc. v. United States, holding that the federal telecommunications excise tax did not apply to telecommunications services for which the charge varied by time, but not …

Labor And Employment, Jerry C. Newsome, K. Alex Khoury

Mercer Law Review

Several significant opinions affecting labor and employment law in the Eleventh Circuit were handed down by the Supreme Court and the Eleventh Circuit's trial and appellate courts during this survey period (January 1, 2005 to December 31, 2005). For example, the United States Supreme Court clarified the meaning of a continuous workday in IBP, Inc. v. Alvarez, expanding the amount of nonproductive time for which employers must pay their workers under the Fair Labor Standards Act ("FLSA"). Further, the Eleventh Circuit Court of Appeals and the United States District Court for the Middle District of Florida enforced a strict standard …

Trial Practice And Procedure, John O'Shea Sullivan, Ashby L. Kent

Mercer Law Review

The 2005 survey period yielded several noteworthy decisions relating to federal trial practice and procedure, many of which concerned issues of first impression in the Eleventh Circuit Court of Appeals. This Article analyzes several recent developments in the Eleventh Circuit, including significant rulings in the areas of arbitration, civil procedure, statutory interpretation, personal jurisdiction, subject matter jurisdiction, and other issues of interest to the trial practitioner.

The Religious Land Use And Institutionalized Persons Act Of 2000 And Its Effect On Eleventh Circuit Law, Christina Harrison Schnizler

Mercer Law Review

The Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA") was enacted by Congress in response to the Supreme Court overruling the Religious Freedom Restoration Act of 1993 ("RFRA") and as an extension of the Civil Rights of Institutionalized Persons Act. RLUIPA is intended "to protect religious liberty" and prohibits discrimination based on religion in two areas: land use regulations and religious rights for institutionalized persons. Generally, the religious land use provisions prevent state and local governments from creating improper zoning restrictions that unduly prohibit religious organizations from holding meetings, locating in a specific area, or expanding their current …

Roper V. Simmons: A Dead-End For The Juvenile Death Penalty, Robert F. Glass

Mercer Law Review

In Roper v. Simmons, the United States Supreme Court held that executing a person under the age of eighteen constituted cruel and unusual punishment as prohibited by the Eighth Amendment to the United States Constitution. Relying on support ranging from scientific and sociological studies to the laws of foreign countries, the Court reversed its 1989 ruling in Stanford v. Kentucky, which upheld the constitutionality of juvenile execution. This case is important because it (1) represents the Court's increasingly restrictive view with regard to permissible punishment under the Eighth Amendment's prohibition of cruel and unusual punishment and (2) raises significant questions …