Law Commons^™

Administrative Law, Martin M. Wilson

Mercer Law Review

This Article surveys the Georgia Supreme Court and Georgia Court of Appeals administrative law cases from June 1, 2003 through May 31, 2004. Over two dozen pertinent cases were decided during the survey period, many of them containing highly novel elements. The novelty of certain facets of the cases only stands to reason, as all levels of government continue to increase reliance upon administrative agencies to perform necessary functions. The regulatory framework imposed by these agencies never fills in all the blanks regarding those functions. The unanswered questions invariably invite appellate court decisionmaking.

No attempt has been made in this …

Appellate Practice And Procedure, Roland F. L. Hall

Mercer Law Review

This Article surveys noteworthy decisions addressing appellate practice and procedure handed down by the Georgia appellate courts. The reviewed decisions fall into the following categories: (1) appellate jurisdiction; (2) preserving the record; (3) notice of appeal; (4) timeliness of appeal; and (5) miscellaneous cases of interest. Although there were no dramatic developments during the survey period, the courts addressed several topics of interest to the practitioner, particularly in the areas of preserving issues for appeal and correctly drafting the notice of appeal.

Construction Law, Dennis J. Webb Jr., Henry L. Balkcom Iv, Dana R. Grantham

Mercer Law Review

This Article surveys construction law decisions handed down by Georgia appellate courts between June 1, 2003, and May 31, 2004. The cases discussed primarily fall within five categories: (1) contract; (2) tort; (3) mechanics' and materialmen's liens; (4) arbitration; and (5) legislation. The Article also includes a miscellaneous section covering noteworthy cases that do not fit neatly into the sections enumerated above.

Labor And Employment, 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, 2003 to May 31, 2004. This Article also highlights specific revisions to the Official Code of Georgia Annotated ("O.C.G.A.").

Legal Ethics, Roy M. Sobelson

Mercer Law Review

The biggest news in Georgia legal ethics this year actually made it into the general press when the Georgia Supreme Court approved a bar committee opinion confirming that real estate closings remained the exclusive province of licensed Georgia lawyers. With the Justice Department, the Federal Trade Commission, and consumer advocates all weighing in with contrary opinions, the court held firm against the inevitable, continuing criticism and cries of protectionism. Combined with the current debates over both multidisciplinary and multijurisdictional practices, it looks like the profession will continue to engage in heated debate in Georgia, if not worldwide, well into the …

Real Property, Linda S. Finley

Mercer Law Review

The Author believes it appropriate to dedicate this Article to a man who has served as a mentor and expert for hundreds (perhaps thousands) of real estate lawyers in the State of Georgia. Affectionately known as "The Death Ray" by his students, who at one time or another admired or feared him, Professor James C. Rehberg had the knack for making a somewhat dry topic come alive (perhaps the exception being the Rule Against Perpetuities). Professor Rehberg was honored in early 2004 by students, faculty, and alumni at his official retirement. While the Author can do little to make this …

Trial Practice And Procedure, Jason L. Crawford, J. Clay Fuller, Dustin T. Brown, Kate S. Cook

Mercer Law Review

During this survey period, the Georgia Supreme Court and Georgia Court of Appeals issued several noteworthy opinions on topics of interest to practitioners. This Article will address these judicial opinions that cover, among other topics, the issues of damages, immunity, the attorney-client relationship, indemnification, jurisdiction and venue, statutes of limitation, standing, and trial procedure. This Article will also address several developments in Georgia's statutory law impacting trial practice and procedure.

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

Mercer Law Review

This Article examines the major cases decided and legislation enacted from June 1, 2003 through May 31, 2004. The cases and statutes discussed cover the substantive law relating to decedents' estates, trusts, and guardianships, and to the fiduciaries who administer these entities.

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

Mercer Law Review

This survey period brought minimal changes in workers' compensation legislation, but several interesting decisions were issued. Among those decisions are cases confirming the exclusive remedy provisions of the Workers' Compensation Act (the "Act"), a case involving an injury that occurred when an employee was on a lunch break, and several statute of limitations cases.

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

Mercer Law Review

This Article surveys noteworthy cases in the areas of corporate, securities, partnership, and banking 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. The Article also summarizes recent enactments of the Georgia General Assembly with respect to the foregoing subject matters.

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

Mercer Law Review

In this year's survey of criminal law in Georgia, we selected only cases in which a new rule of law was announced, a case of first impression was presented, a case with unusual or interesting facts was presented, or the case, while saying nothing new, set forth well-established law about topics that we could all use a reminder of from time to time.

Death Penalty Law, Holly Geerdes, David Lawless

Mercer Law Review

This Article surveys the death penalty decisions of the Georgia Supreme Court from June 1, 2003, through May 31, 2004. The cases discussed include those heard by the supreme court on interim appeal, on direct appeal, and on review of habeas corpus decisions. Focusing on the court's decisions that affect the trial and appeal of death penalty cases, this Article, with some exceptions, does not discuss holdings in capital cases that are common to all criminal appeals. Four United States Supreme Court decisions are included in this survey because of their salience to Georgia death penalty law.

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

Mercer Law Review

Across the board, courts strictly applied insurance contracts as they were written. Typical of this survey year, insureds went zero for five in attempts to escape from their responsibility to read their policies. Public policy arguments did not seem to work. At the end of the survey year, the Georgia Court of Appeals further clarified the application of coverages in complex areas of insurance for "advertising injury" and "construction defects."

Torts, Deron R. Hicks

Mercer Law Review

In Music v. Steamco, Inc., the Georgia Court of Appeals affirmed the trial court's grant of summary judgment in favor of a restaurant in a slip and fall action. The action was filed by a patron of the restaurant who suffered injuries when she fell down a set of stairs while exiting the restaurant. Plaintiff, after having lunch with her friends at defendant's restaurant, prepared to leave the restaurant by way of the same stairs she used to enter the restaurant. As she stood at the top of the stairs, plaintiff noticed water on the steps; however, the steps …

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

Mercer Law Review

Of the domestic relations appellate cases decided during this survey period, twenty-three are discussed below. Georgia law requires that appeals of domestic relations cases occur through the discretionary application process. A party wanting to appeal an order in a domestic relations case must first file an application to obtain the permission of the appropriate appellate court to file an appeal. As part of a pilot project, the Georgia Supreme Court began accepting all "non-frivolous" applications filed in domestic relations cases during the 2003 calendar year. The supreme court extended the pilot project for the 2004 calendar year; however, the supreme …

Appellate Conflicts In Local Government Law: The Disagreements Of A Decade, R. Perry Sentell Jr.

Mercer Law Review

In awesome solemnity, Chief Justice John Marshall thundered in 1803, "[i]t is emphatically the province and duty of the judicial department to say what the law is." Marshall's historic declaration has borne both lavish praise and unstinting criticism, and it serves as the commonly understood sentiment underlying the legal order of our country. At both federal and state levels, the "judicial department" rules our daily lives by virtue of saying "what the law is."

At the state level, constitutions and statutes typically establish a judicial branch of government and populate that branch with all manner of courts-local, trial, and appellate. …

Evidence, Marc T. Treadwell

Mercer Law Review

One of the more interesting things about writing evidence surveys for the Mercer Law Review for almost twenty years has been watching evidentiary rules rise and, sometimes, fall. No rise has been more dramatic than Georgia's necessity exception to the hearsay rule. Its fall, or partial fall, should be equally dramatic as a result of the United States Supreme Court's decision in Crawford v. Washington, which knocked the constitutional underpinnings from underneath the necessity exception. As discussed in many prior surveys, sometimes with tentative and respectful criticism, the necessity exception, despite a few minor setbacks, has become a vehicle …

Local Government Law, R. Perry Sentell

Mercer Law Review

"My city was desirous of suing the county for violating the city's zoning ordinance .... As City Attorney, I was requested to research the matter and give an opinion to the Mayor and Council .... After giving my opinion that a suit against the county would be contrary to law and might subject the city (and its lawyer) to attorney's fees, the [Mlayor and [Clouncil voted unanimously to sue the county. The local newspaper's headlines read, 'City Votes Unanimously To Sue County Against Advice of City Attorney!' One of the Council members was quoted as saying, 'regardless of the law, …

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

Mercer Law Review

The Eleventh Circuit Court of Appeals handed down ten opinions distinctly concerning admiralty issues during the 2003 calendar year. The topics covered in these cases varied from the traditional maritime issues of allision, cargo, contribution, and admiralty jurisdiction, to the less common maritime fields of criminal law and state sovereign immunity. With ten admiralty opinions in 2003, the Eleventh Circuit has maintained its status as one of the busiest admiralty circuits.

Constitutional Civil Rights, C. Ashley Royal

Mercer Law Review

The First Amendment presents some of the most nettlesome, yet interesting, issues for attorneys and federal judges. Once again this term, the Court of Appeals for the Eleventh Circuit dealt with some complex issues in cases involving nude dancing, freedom of the press, religious symbols, commerce, and the Confederate battle flag. The court even stirred nationwide controversy over its decision about a monument to the Ten Commandments in Alabama. This Article highlights some of the key legal principles the court follows in ruling on First Amendment cases.

The Article shows how the court, applying the same legal theories, reaches different …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

For the first time in the life of this Article, the 2003 survey period appears to have experienced a marked decrease in the number of decisions handed down by the United States Supreme Court and the Eleventh Circuit in the area of employment discrimination. As Title VII approaches its fortieth anniversary, perhaps this is an indication that there are fewer and fewer unsettled questions of law in this area. However, this decline in the number of decisions does not mean that the 2003 survey period was insignificant. The Supreme Court, in Raytheon Co. v. Hernandez, continued its string of …

Environmental Law, Travis M. Trimble

Mercer Law Review

In 2003 the United States Court of Appeals for the Eleventh Circuit decided two cases concerning the Clean Air Act, holding that provisions allowing the Environmental Protection Agency ("EPA") to address compliance issues through the issuance of administrative compliance orders are unconstitutional and that the Clean Air Act does not waive the United States's defense of sovereign immunity in an action for punitive penalties for past violations of air pollution laws. The court also considered for the first time the circumstances under which a state enforcement action would preempt a citizen suit under the Clean Water Act. This Article also …

Who Gets The Hooch?: Georgia, Florida, And Alabama Battle For Water From The Apalachicola- Chattahoochee-Flint River Basin, C. Hansell Watt Iv

Mercer Law Review

During a time when technology is constantly changing and becoming more advanced, one of the constants that our planet, and all of the creatures on it, will always rely upon is fresh water. Throughout history, rivers have been the lifeblood that supports cities by providing drinking water, irrigation, transportation, trade, recreation, power, and many other industrial and domestic uses. As the human population grows, rivers and lakes are more pressured to support the growing needs of the communities and cities that rely on these bodies of water. Because many rivers in the United States flow across numerous states, problems develop …

Defining Misappropriation: The Spousal Duty Of Loyalty And The Expectation Of Benefit, M. Anne Kaufold

Mercer Law Review

In a case of first impression, SEC v. Yun, the United States Court of Appeals for the Eleventh Circuit settled two disputed aspects of insider-trading liability. First, a duty of loyalty and confidentiality between spouses may be shown if the spouses have a history or practice of sharing and maintaining business confidences or, if in disclosing the confidential information, the spouse breaches an agreement to maintain the other spouse's business confidences. Second, in a misappropriation theory of insider-trading liability action, the Securities and Exchange Commission ("SEC") must prove that the misappropriator expected to benefit from the tip. The decision …

Finding Immunity: Manders V. Lee And The Erosion Of § 1983 Liability, Thomas B. Ward

Mercer Law Review

In Manders v. Lee, the United States Court of Appeals for the Eleventh Circuit held that a Georgia county sheriff is an arm of the state when acting in his official capacity in implementing and enforcing use-of-force guidelines and, thus, is immune from suit in federal court under the Eleventh Amendment.' This decision creates considerable uncertainty in the area of government-entity liability under 42 U.S.C. § 19833 because of the potentially broad impact of this newly established analytical approach.

Bankruptcy, James D. Walker Jr., Amber Nickell

Mercer Law Review

Since last year's article, the courts in the Eleventh Circuit have issued-with a few exceptions-mostly routine bankruptcy opinions. The United States Supreme Court, however, has been very busy, deciding six bankruptcy-related cases. It makes sense to begin with one of the most anticipated of those opinions.

Intellectual Property, Laurence P. Colton, Nigamnarayan Acharya

Mercer Law Review

This Article surveys case law developments in the area of intellectual property, including patents, copyrights, and trademarks, relevant to Georgia during the period from January 1, 2003 to December 31, 2003. The authors have not attempted to include all cases that touch upon intellectual property, but instead they have selected some decisions that are of more significance or interest or that indicate a particular direction the areas of law may take.

Intellectual property law comprises several discrete yet overlapping areas of law. The four primary areas are patent, trademark, copyright, and trade secret. Patent and copyright law are provided for …

Federal Taxation, Donald R. Bly, Michael H. Plowgian

Mercer Law Review

In 2003 the United States Court of Appeals for the Eleventh Circuit published few tax decisions of any importance. In the Circuit's highest profile tax case of 2003, the court vacated a lower court decision that had held section 527(j) of the Internal Revenue Code unconstitutional. In other procedural cases, the court held that Rule 183 of the Tax Court Rules of Practice and Procedure did not raise due process concerns, and, in a case of first impression, ruled that in determining the total revenue lost in cases concerning fraudulent corporate and personal returns, the losses from unreported corporate income …

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

Mercer Law Review

This Article surveys notable developments in labor and employment law in the Eleventh Circuit from January 1 to December 31, 2003. During the survey period, the United States Supreme Court handed down two notable decisions, one involvirng the Fair Labor Standards Act ("FLSA") and the other involving the Family and Medical Leave Act ("FMLA"). The United States Court of Appeals for the Eleventh Circuit rendered several notable decisions involving the FLSA, the FMLA, the National Labor Relations Act ("NLRA"), and the Railway Labor Act ("RLA") during the survey period. The Eleventh Circuit also issued a significant opinion affecting restrictive covenants …

Evidence, Marc T. Treadwell

Mercer Law Review

On March 8, 2004, the United States Supreme Court, in Crawford v. Washington, rendered its most significant evidence decision in a number of years. Since the Court's 1980 ruling in Ohio v. Roberts, holding that the Sixth Amendment's confrontation clause does not necessarily bar the admission of out of court statements in criminal trials, federal and state courts have increasingly allowed prosecutors to use hearsay statements against criminal defendants if trial judges found that the statements bore sufficient indicia of reliability. Crawford likely will bring an end to that.

As the author has often commented in surveys of …