Law Commons^™

Business Associations, Paul A. Quirós, Lynn Schutte Scott, Daniel J. Babb

Mercer Law Review

This Article surveys noteworthy cases that the Georgia appellate courts, the United States district courts located in Georgia, and the Eleventh Circuit Court of Appeals decided during the survey period as they relate to Georgia corporate, partnership, securities, and banking laws. It also highlights certain enactments by the Georgia General Assembly revising the Official Code of Georgia Annotated ("O.C.G.A.").

The Georgia Home Rule System, R. Perry Sentell Jr.

Mercer Law Review

Few doctrines attract more universal acclaim than local government "home rule"; even fewer possess a more convoluted heritage or content. As for heritage, difficulty inheres in locating a point of origin, for "home rule has roots deep in Anglo-American political history." As for content, imprecision begins with terminology itself, for "in point of fact the term has never been given legal definition and can scarcely be regarded as a term of our law at all."

Evidence, Marc T. Treadwell

Mercer Law Review

The survey period saw a large number of cases raising significant evidentiary issues. Two areas in particular should be noted and are discussed in detail below. First, criminal lawyers should be aware of the supreme court's reinterpretation of Cuzzort v. State, a landmark decision creating a broad exception to the hearsay rule for prior consistent statements. Second, all trial lawyers should be aware that the court of appeals continues to flirt with the idea of requiring parties to tender expert witnesses to the court for certification that they are, in fact, qualified to render expert testimony. As in past …

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

Mercer Law Review

Of the appellate cases decided during the survey period, eighteen are digested here. While the legislature continued to focus on the collection of child support, the appellate courts tackled a wide range of issues.

Local Government Law, R. Perry Sentell Jr.

Mercer Law Review

Plaintiff filed an action against the county for the repeated flooding of his home. The county attorney responded with a deft procedural maneuver:

It was my bright idea to take the plaintiff's deposition at his home. My timing was impeccable. During the deposition .... something on the order of a ten-year storm [occurred], an event which flooded [plaintiff's] property just as [he] had claimed. During our "adjournment" of the deposition, ... I [was] captured on video [by plaintiff's attorney] wading through plaintiff's front yard with my pants legs somewhere in the vicinity of my knees!

The "law" of local government, …

Real Property, T. Daniel Brannan, William J. Sheppard

Mercer Law Review

This Article surveys case law and legislative developments in Georgia law of real property during the period from June 1, 1997 to May 31, 1998. The cases and statutes discussed in this Article were chosen for their significance to practitioners in Georgia, and not every case decided or statute passed during the survey period is mentioned. Of particular note, in one case decided during the survey period, the Georgia Court of Appeals clarified the reach of the Commercial Real Estate Broker Lien Act by defining what services will support the filing and foreclosure of a broker's lien under the statute

Wills, Trusts, And Administration Of Estates, James C. Rehberg

Mercer Law Review

The aim of this Article is to summarize judicial and legislative developments in fiduciary law within the past year. Its organization reflects an intention to discuss the particular issues somewhat in the chronological sequence in which they are likely to appear.

Trial Practice And Procedure, C. Frederick Overby, Jason Crawford, Teresa T. Abell

Mercer Law Review

The most notable and far-reaching judicial activity during this survey period dealt with the summary judgment standard applied in tort cases. Other noteworthy developments occurred in the areas of venue, renewal of actions, collateral estoppel, and bifurcation of trials in cases involving punitive damages. Only minimal legislation was enacted in the area of trial practice and procedure during the survey period. This Article focuses on the most notable decisions rendered by the judiciary and the most significant legislation touching upon trial practice and procedure in Georgia state courts.

Commercial Law, Robert A. Weber Jr.

Mercer Law Review

No abstract provided.

Torts, Deron R. Hicks

Mercer Law Review

No abstract provided.

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

Mercer Law Review

The 1997-98 survey period was marked by a relatively calm legislative session with respect to workers' compensation, in sharp contrast to the significant legislation that has reshaped the Georgia's Workers' Compensation Act this decade. As usual, however, the appellate courts were active in the workers' compensation arena, issuing decisions over a broad range of issues. In particular, significant rulings affected change in condition cases, the intoxication defense, and the ongoing issue of psychological injury.

Administrative Law, Terri L. Carver

Mercer Law Review

The Eleventh Circuit ruled on numerous administrative law issues in 1997, including exhaustion of administrative remedies, deference to agency legal interpretations, and the time period for appealing federal agency actions. The Eleventh Circuit also took a close look at the scope of an inspector general's subpoena powers and clarified the role of agency investigations versus inspectors general investigations.

The Eleventh Circuit decided several cases of first impression in 1997. In a case of first impression nationwide, the Eleventh Circuit ruled that determining the amount of attorney fees in an administrative case was a collateral issue.' Therefore, the issue of attorney …

Appellate Practice And Procedure, William M. Droze

Mercer Law Review

An appellate court is often characterized by the opinions that it writes. Though an appellate opinion represents a written expression and extension of the judicial personality, it is necessarily dictated in part by the facts of the case. As a result, a court's application of appellate procedure may serve as a better crucible for assembling a judicial portrait and undertaking to study trends and direction. This Article examines recent appellate cases with a view towards understanding appellate direction as well as assisting the practitioner with an overview of appellate procedure in action. The Eleventh Circuit's emphasis on professionalism and on …

Evidence, Marc T. Treadwell

Mercer Law Review

Previous surveys have addressed the trend--or at least what the author perceives to be the trend--of the Eleventh Circuit Court of Appeals in recent years to defer more to district court judges' evidentiary decisions. This trend can be contrasted with the activism displayed by Eleventh Circuit judges in decisions discussed in earlier survey articles. However, the 1996 Eleventh Circuit decision in Joiner v. General Electric Co. bucked this trend and applied a very rigid level of scrutiny to a trial court decision to exclude expert testimony. During the current survey period, the Supreme Court reversed Joiner because of its …

Federal Practice, Richard Mills

Mercer Law Review

The formula for success in trial practice is simple: Be prepared, be decent, and be on time.

There are ninety-four district courts in the United States. Twenty-four states have two or more districts; for example, Illinois and Georgia have three. Twenty-six states, plus the District of Columbia, Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana Islands, are single districts. And in all of those ninety-four districts over the last thirty years, the civil cases have tripled! In my district we have quadrupled our caseload in that same time frame. In the last five years alone, we have had …

Federal Taxation, Ben E. Muraskin, James A. Lawton, Tiffani W. Greene

Mercer Law Review

The Court of Appeals for the Eleventh Circuit during 1997 rendered fewer reported decisions dealing with federal tax issues than in prior years. Nevertheless, in one of the biggest developments in cooperative taxation, the Eleventh Circuit decided Gold Kist Inc. v. Commissioner, which involved the interpretation of the tax benefit rule as set forth in the 1983 Supreme Court decisions in Hillsboro National Bank v. Commissioner and United States v. Bliss Dairy, Inc. Other decisions involved the qualification of corporations as "farm-related taxpayers," employment taxes, federal tax liens, issues on appeal, litigation costs, and a bankruptcy tax issue.

Brisentine V. Stone & Webster Engineering, William White

Mercer Law Review

In Brisentine v. Stone & Webster Engineering, the Eleventh Circuit Court of Appeals revisited the murky corner of employment law that deals with arbitration agreements. The case is noteworthy because the court, for the first time in the Eleventh Circuit, addressed the issue of whether a compulsory arbitration provision in a collective bargaining agreement precluded a separate action by the employee to protect his statutory rights.

Chandler V. Miller: The Supreme Court Closed The Door On The Factual Instances That Warrant Suspicionless Searches, Justin Scott

Mercer Law Review

Chandler v. Miller involved the constitutionality of a Georgia statute that required candidates for designated state offices to pass a drug test prior to qualifying for nomination or election.

Apportioning Coverage Responsibility Of Consecutive Insurers When The Actual Occurrence Of Injury Cannot Be Ascertained: Who Has To Contribute In A Settlement?, Rob S. Register

Mercer Law Review

No abstract provided.

Bankruptcy, W. Homer Drake Jr., Michael M. Duclos

Mercer Law Review

Unlike past years when the United States Court of Appeals for the Eleventh Circuit issued a tremendous number of bankruptcy decisions each term, 1997 turned out to be a very quiet year because the Eleventh Circuit issued only eight opinions addressing matters arising under the Bankruptcy Code. This Article is a survey of those 1997 bankruptcy decisions.

Federal Sentencing Guidelines, Andrea Wilson

Mercer Law Review

Appeals attempting to resolve issues concerning the United States Sentencing Guidelines ("U.S.S.G.") continue to require much of the resources of the Eleventh Circuit Court of Appeals. The sentencing guidelines are the driving force behind thousands of prosecutions and appeals each year. However, the number of amendments to the guidelines has diminished in recent years, and the court seems to be free to do more fine-tuning than in the past.

Trial Practice And Procedure, Philip W. Savrin, Robyn L. Oliver

Mercer Law Review

This Article surveys the 1997 decisions of the Eleventh Circuit Court of Appeals that have a significant impact on issues relating to trial practice and procedure.

Smith V. State: The Georgia Supreme Court Mandated Jury Instructions In Battered Person Syndrome Cases, Sherry M. Hall

Mercer Law Review

After a recent Georgia Supreme Court ruling, battered person syndrome is entitled to separate jury charges when the defendant properly establishes the battered person syndrome self-defense claim.

Environmental Law, W. Scott Laseter, Julie V. Mayfield

Mercer Law Review

Perhaps in recognition of the growing prevalence of environmental issues in the day-to-day practice of law, this Article departs from the two-year survey period of its predecessors by covering only decisions handed down during 1997. Nonetheless, the survey period saw several interesting cases reach the Eleventh Circuit, including the appeal of a sua sponte assault on the constitutionality and retroactive application of the Comprehensive Environmental Response, Compensation, and Liability Acts and an effort to use the Migratory Bird Treaty Act to block timber harvest in a national forest. Further, the survey period saw the continued emphasis on citizens' suits, the …

Antitrust, Michael Eric Ross, Jeffrey S. Cashdan

Mercer Law Review

The Eleventh Circuit Court of Appeals published only four antitrust decisions in 1997. Two of these cases were decided on procedural grounds and two on substantive grounds. Once again, defendants prevailed in most of these cases, including an action brought by the Government to enjoin an acquisition.

Amchem Products, Inc. V. Windsor: The Supreme Court Defines The Standard For Settlement Class Action Certification, Jimmy White

Mercer Law Review

In Amchem Products, Inc. v. Windsor, a case stemming from the asbestos litigation crisis of the 1970s and 1980s, the United States Supreme Court addressed the certification criteria for settlement-only class actions under rule 23 of the Federal Rules of Civil Procedure ("Rule 23").

Kansas V. Hendricks: Fighting For Children On The Slippery Slope, Michael L. Atlee

Mercer Law Review

In Kansas v. Hendricks, the United States Supreme Court determined the constitutionality of a civil commitment statute that provides for possible indefinite confinement of sex offenders who are near the end of their prison sentences and who pose a threat to society and suffer from a "mental abnormality." In a five to four decision, the Court reversed the Kansas Supreme Court and upheld Kansas's Sexually Violent Predator Act ("SVPA"). In doing so, the Court declared the act nonpenal and rejected due process, double jeopardy, and ex post facto challenges.

United States V. Mitchell: The Fifth Amendment At Sentencing, Matthew E. Cook

Mercer Law Review

Whether the Fifth Amendment privilege against self-incrimination may be claimed by a criminal defendant after conviction is an open question. In United States v. Mitchell, the Third Circuit aligned itself with the minority of circuits by holding that defendants retain no Fifth Amendment right against self-incrimination with respect to the facts or circumstances of a crime once convicted, even though their testimony may work to increase their level of punishment.

Where To Draw The Line? The Supreme Court Reverses On Federal Funding Programs Regarding Religious Schools: Agostini V. Felton, Michael N. White

Mercer Law Review

In Agostini v. Felton the Supreme Court reversed its 1985 decision in Aguilar v. Felton by holding that a federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is valid under the Establishment Clause even when the instruction is given on the premises of sectarian schools by government employees as long as the program contains safeguards such as those present in New York City's Title I program. Thus, the twelveyear- old permanent injunction entered in Aguilar against New York City's Title I program was vacated.

Legal Writing: Its Nature, Limits, And Dangers, Douglas Litowitz

Mercer Law Review

Lawyers have a unique and highly technical manner of writing, one that differs significantly from standard English. Legal education involves an indoctrination into this new discourse, a process that ends when one awakens to find oneself writing in a manner that once seemed impossibly obscure. Of course, the mastery of legal language reflects a paradigm shift in thought, sometimes called "learning to think like a lawyer" or "seeing things from a legal perspective." The conceptual scheme and language of the law are so different from the ordinary way of thinking that Lord Coke was perhaps correct when he characterized the …