Law Commons^™

Judicial Threats To Olmstead And The Americans With Disabilities Act, Jean Mangan, Andrea L. Dennis

Scholarly Works

The authors examine the U.S. Supreme Court decision in Olmstead v L.C. ex rel. Zimring and related Supreme Court rulings that could raise questions about the Americans With Disabilities Act's guarantee of care in integrated settings and about which governmental entity's interpretation should be respected when deciding whether a state has met its integration obligation. After reviewing statutes, administrative regulations, and judicial decisions, the authors conclude that Olmstead's integration mandate will likely stand, but actions should be taken to codify the rule in federal and state statutes so that governmental agencies will continue to have the authority to ensure compliance …

Table Of Contents, Jake Shatzer

Georgia Law Review

No abstract provided.

The Applications Docket, Greg Goelzhauser

Georgia Law Review

The Supreme Court’s applications docket, often misleadingly called the “shadow docket” or “emergency docket,” is controversial, complex, and poorly understood. Using original data spanning nearly two decades, I unravel the docket’s empirical foundations. Applications practice changed fundamentally in recent years. Contrary to conventional wisdom, dispositions declined on average, but this conceals divergent trends: among applications involving stays and injunctions, capital dispositions decreased while noncapital dispositions increased. Moreover, noncapital applications now comprise a larger share of the docket than capital applications. This shift enhances docket salience because, as I show, most capital applications are denied simultaneous to denying plenary review, while …

Silent Sentences: The Procedural Tragedy Of The Bureau Of Prisons' Sentence Computation Policy, Max Abramson

Georgia Law Review

The Bureau of Prisons has systematically lengthened sentences—at times doubling them—for prisoners subject to federal and state sentences for the same conduct. This phenomenon does not stem from any expressed intent on the part of federal or state judges, defense attorneys, the prosecution, or a plea deal. Instead, it arises through silence at a prisoner’s federal sentencing on a key issue: whether the federal sentence is consecutive to or concurrent with a yet-to-beimposed state sentence.

For those facing both a federal sentence and a yet-to-beimposed state sentence for the same conduct, perhaps no other aspect of sentencing has a greater …

What Do We Know About Shareholders' Potential To Solve Environmental And Social Problems?, Bryce C. Tingle

Georgia Law Review

Securities regulators around the world are attempting to assist socially conscious shareholders in driving changes in the way corporate America operates. At a time when legislative solutions to some of our most pressing social and environmental problems seem far away, many market actors have come to hope that shareholders can succeed in regulating and reforming corporate practices.

This paper summarizes the empirical evidence regarding the behavior of shareholders with explicit ESG mandates, the difficulties outsiders experience in evaluating ESG performance, and the outcomes generated by the limited tools available to shareholders under corporate law. It concludes there is little evidence …

All The Internet's A Stage: Reform Of The Digital Millennium Copyright Act And Broadway's Bootleg Problem, Emma K. Wimberly

Georgia Law Review

Broadway is the cultural epicenter of theatre arts. While Broadway performances are internationally known and hugely profitable, they remain inaccessible to a significant number of fans. The inability to bear the increasing costs of travel, lodging, and tickets leads many fans to turn to bootlegs. Bootlegs are illegal recordings of live performances. They are widely viewed and shared online, and uploaders purposefully work to obscure the illegality of these recordings, allowing them to evade tools designed to combat copyright infringement.

The Digital Millennium Copyright Act (DMCA), enacted in 1998, amended U.S. copyright law to attempt to prevent digital copyright infringement. …

121st Sibley Lecture: American Democracy In Peril, J. Michael Luttig

Georgia Law Review

No abstract provided.

Confusing Cy Près, Christopher J. Ryan Jr.

Georgia Law Review

American courts have increasingly considered the possibility of prolonging the life of charitable trusts through cy près and the closely related doctrine of equitable deviation. This requires courts to interpret the material purposes of trusts and even the administrative terms on which settlors of charitable trusts condition gifts in trust made for public benefit. Yet, the implicit reasons why courts might invoke cy près to change a charitable trust’s material purpose have not been explored in significant depth heretofore—and neither has a common but vexing trend of courts conflating cy près with deviation, which negatively impacts charitable trust-making.

I analyze …

Billionaire Taxes And The Constitution, Andy Grewal

Georgia Law Review

The United States now has ten times as many billionaires as it had just a few decades ago. This ever-growing class has sparked congressional interest in “billionaire tax” proposals. These proposals would generally require that billionaires recognize income when their asset values increase, even if they have not sold their assets.

Under existing doctrine, billionaire taxes likely violate the realization requirement embedded in the Sixteenth Amendment of the Constitution. However, this Article argues that existing Sixteenth Amendment doctrine suffers from deep infirmities and theoretical inconsistencies. With the conceptually sound interpretive approach advanced in this Article, a billionaire tax could pass …

Title Ix At Fifty: Reimagining Institutional Liability Under Karasek's Pre-Assault Theory, Delaney R. Davis

Georgia Law Review

Unfortunately, sexual misconduct remains a pervasive problem on college campuses throughout the country. While victims of sexual harassment and assault can report these incidents to their university, these institutions often fail to respond adequately. Investigations into the alleged misconduct are often unnecessarily delayed and school officials neglect to inform victims about the status of their cases. Even more troubling, institutions opt to impose informal sanctions on perpetrators without consulting victims. In such instances, students can hold educational institutions accountable for these deficiencies by suing under Title IX. This is easier said than done. Typically, a plaintiff must prove that their …

The Procedural Tragedy Of Cook V. State: A Call To The General Assembly To Finish What It Started, Paxton Murphy

Georgia Law Review

On March 15, 2022, the Georgia Supreme Court decided Cook v. State. This case was a bombshell in Georgia’s postconviction law because it discarded decades of judicial precedent overnight. For years, Georgia’s criminal defendants relied on motions for out-of-time appeals when defense counsel failed to appeal before a deadline or to advise a defendant of his or her appellate rights. The out-of-time appeal procedure was a quick, easy, and fair way to return the defendant to the exact same place he was before the appeal deadline was missed.

The ramifications of Cook were severe. Overnight, every outof-time appeal case in …

Parting The Red Sea: Prescriptions For The Rluipa Equal Terms Provision's Expanding Circuit Split, Braden T. Meadows

Georgia Law Review

Congress unanimously passed the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000. The Act marked the culmination of a decades-long dialogue between Congress and the Supreme Court. RLUIPA’s passage embodied Congress’s resolve to provide religious free exercise protections—particularly as it pertained to religious land use. Since 2000, however, RLUIPA’s Equal Terms Provision has been subject to differing judicial interpretations, resulting in an expanding circuit split. This Note analyzes the circuit split and offers guidance to future interpreters.

First, this Note examines the social, legislative, and judicial history leading to RLUIPA’s enactment. Second, it analyzes the contours of interpretations …

Jurisdiction Beyond Our Borders: United States V. Alcoa And The Extraterritorial Reach Of American Antitrust, 1909–1945, Laura Phillips Sawyer

Scholarly Works

Chapter in the book Antimonopoly and American Democracy by Daniel A. Crane and William J. Novak, eds., Oxford University Press, 2023.

In 1945, Judge Learned Hand wrote one of the most influential opinions in modern antitrust law. In declaring that the Aluminum Company of America (Alcoa) had illegally monopolized the industry for virgin aluminum and had participated in an illegal international cartel, Hand both revived and extended American antitrust law. The ruling is famous for several reasons: it narrowly defined the relevant market in favor of the government; it expanded the category of impermissible dominant firm conduct; it interpreted congressional …

2023 Judge Horace J. Johnson, Jr. Lecture On Race, Law And Policy With Vanita Gupta, Vanita Gupta, Peter B. Rutledge, Clare R. Norins, John B. Meixner Jr., Matthew R. Auer

Judge Horace J. Johnson Lecture on Race, Law and Policy

School of Law Dean Peter Bo Rutledge gave introductory remarks, while law faculty members Clare Norins and John Meixner co-moderated, and SPIA Dean Matthew Auer provided closing remarks.

Vanita Gupta is the 19thUnited States Associate Attorney General and serves as the third-ranking official at the Department of Justice. Associate Attorney General Gupta supervises multiple litigating divisions within the Department of Justice, including the Civil Division, Civil Rights Division, Antitrust Division, Tax Division, and Environmental and Natural Resources Division. She also oversees the grant making components of the Department, including the Office of Justice Programs, the Office on Violence Against Women, …

Architects, Artists, Photographers, Property Owners, The Public And Their Rights: Reconciling Vara, The Awcpa, And Copyright Fundamentals, David E. Shipley

Scholarly Works

Murals, sculpture, and other works of visual art have been parts of buildings, monuments and other structures for centuries, but copyright infringement litigation in the federal courts between artists, architects, photographers, and building owners is a relatively recent phenomenon. The outcome of these lawsuits has an impact on the public seeing works of visual art; experiencing works of visual art on buildings, monuments, and structures; and, looking at photographs of visual art on or in those architectural works. This article focuses on how the Copyright Act’s protection of artists’ rights in their works of visual art on buildings under the …

Reexamining The Consent Definition Under Article 213: Sexual Assault And Related Offenses Of The Model Penal Code And Its Troubling Influence On Affirmative Consent Definition States, Samantha Newman

Georgia Criminal Law Review

In the past decade, and in response to criticism surrounding Article 213 Sexual Assault and Related Offenses of the 1962 Model Penal Code (MPC), the American Law Institute (ALI) sought to re-examine these specific provisions. In doing so, the ALI attempted to incorporate a more modern standard of sexual behavior and consent, without making the model code too punitive. Recently in 2022, the ALI approved revisions to Article 213 MPC, referred to in this Article as the “Revised Code,” including the rejection of an affirmative consent definition. This Article argues that despite the noble intentions of revising an outdated code, …

To Hemp In A Handbasket: The Meaning Of “Controlled Substance” Under The Career Offender Enhancement, Jacob Friedman

Georgia Criminal Law Review

Sentencing enhancements can drastically impact prison sentences for people convicted of federal crimes. The career offender enhancement is particularly harmful to a federal criminal defendant because it automatically raises their minimum offense level and criminal history score under the U.S. Sentencing Guidelines, which, although no longer mandatory, are almost always followed by judges in determining actual prison sentences. Since 2016, the career offender enhancement has been applied to almost 8,000 criminal defendants who, at the time of their convictions, had accrued a total of two or more predicate felony convictions, for either a drug offense or a crime of violence …

Punitive Instead Of Rehabilitative: The Role Of Restitution In The Juvenile Justice System And The Need For Reconstruction, Sydney Ford

Georgia Criminal Law Review

The juvenile justice system was founded on the premise of giving specific attention to the needs of youth and rehabilitating them. Over the years, the juvenile justice system evolved to include more rights and protections for youth while still maintaining that their goal was to rehabilitate justice-involved youth. Restitution, one method of disposition, began as a way to continue this rehabilitation-based mission and provide an alternative to incarceration. However, rehabilitation’s disproportionate and punitive application, with a lack of consistency across state lines, does not coincide with rehabilitation anymore. This article argues that restitution does not align with rehabilitation, the core …

Legalize For Legal Highs: How Georgia Can Address Racial Disparities In The Criminal Legal System By Legalizing Recreational Cannabis, Nneka Ewulonu

Georgia Criminal Law Review

Cannabis prohibition is a policy failure that nevertheless continues to impact more than half of Americans, including Georgians. Remaining true to its roots in racism and xenophobia, cannabis criminalization has disparate impacts, with Black Americans being more likely to be arrested or incarcerated for a cannabis related offense. Furthermore, cannabis criminalization results in tens of millions of missed tax dollars for the state. This article argues for a clear policy solution; it is time for Georgia to legalize cannabis. As demonstrated by the 21 states that have legalized recreational cannabis as of Fall 2022, legalizing recreational cannabis creates both economic …

Progressive Prosecution, Sherry Boston, Rachel Foran, Deborah Gonzalez

Georgia Criminal Law Review

No abstract provided.

Juvenile Sentencing In Georgia, Randee Waldman, Emily Boness, Kaitlyn Barnes, Aakeem Woodard

Georgia Criminal Law Review

No abstract provided.

Carl Vinson Institute Presentation, Holly Lynde

Georgia Criminal Law Review

No abstract provided.

Event Overview, Georgia Criminal Law Review Editors

Georgia Criminal Law Review

No abstract provided.

Introduction, Georgia Criminal Law Review Editors

Georgia Criminal Law Review

No abstract provided.

Table Of Contents, Georgia Criminal Law Review Editors

Georgia Criminal Law Review

No abstract provided.

All The News That’S Fit To Be Identified: Facilitating Access To High-Quality News Through Internet Platforms, Sonja R. West, Jonathan Peters, Lefteris Jason Anastasopolous

Scholarly Works

Roughly half of Americans get some of their news from social media, and nearly two-thirds get some of their news from search engines. As our modern information gatekeepers, these internet companies bear a special responsibility to consider the impact of their platform and site policies on users’ access to high-quality news sources. They should adopt policies that clear the digital pathway between the public and press by facilitating such access. To that end, the companies must first, address the threshold issue of how best to identify high-quality news sources. This article examines factors that would be useful, drawing from legal …

The Spac Market, Usha Rodrigues, Michael Stegemoller

Scholarly Works

Special purpose acquisition companies (SPACs) exploded in popularity in the past few years, to such a degree that they made up 60% of IPOs in 2020, 66.3% in 2021, and 69.4% in 2022. Celebrities from Colin Kaepernick to Jay-Z have launched SPACs, but perhaps the most feverish attention came in October 2021, when a SPAC called Digital World Acquisition Corp (DWAC) announced plans to acquire Trump Media & Technology Group (TMTG), a social media company headed by former president Donald Trump.

The SPAC frenzy has now abated, a casualty of some combination of higher interest rates, regulatory crackdown, and oversupply. …

The Chickens Finally Come Home To Roost: Judicial Oversight Of Agricultural Antitrust Settlements, Christian M. Sullivan

Georgia Law Review

The agricultural industry has long enjoyed an exception from antitrust laws under the Capper-Volstead Act of 1922, which exempts agricultural cooperatives from federal antitrust scrutiny. Accordingly, large agricultural associations and cooperatives have formed, leading to the coagulation of many food products’ industries into giant collectives. As these collectives have grown, small farmers have joined together to file private antitrust enforcement actions against these conglomerates. To combat these enforcement actions, agricultural collectives have paid out large settlement sums to quash these private actions and ensure that their operations continue smoothly.

Private enforcement actions are a key tool for ensuring a free …

Privately Policing Dark Patterns, Gregory M. Dickinson

Georgia Law Review

Lawmakers around the country are crafting new laws to target “dark patterns”—user interface designs that trick or coerce users into enabling cell phone location tracking, sharing browsing data, initiating automatic billing, or making whatever other choices their designers prefer. Dark patterns pose a serious problem. In their most aggressive forms, they interfere with human autonomy, undermine customers’ evaluation and selection of products, and distort online markets for goods and services. Yet crafting legislation is a major challenge: Persuasion and deception are difficult to distinguish, and shifting tech trends present an ever-moving target. To address these challenges, this Article proposes leveraging …

Cheap Creativity And What It Will Do, Dan L. Burk

Georgia Law Review

Artificial intelligence (AI), in the form of machine learning systems, is becoming widely deployed across many industries to facilitate the production of new technical or expressive works. Among other applications, these technologies promise rapid product design and creation, often exceeding the capacity of human creators. Commentators and policy makers have responded to these developments with a flood of literature analyzing the ways in which AI systems might challenge our existing regimes of intellectual property. But such discussions have thus far focused on entirely the wrong questions, misunderstanding the nature of the changes that AI brings to creative development.

Intellectual property …