Law Commons^™

Gina, Privacy, And Antisubordination, Bradley A. Areheart

Georgia Law Review

This Essay briefly considers both the current and
optimal role of privacy in employment discrimination
jurisprudence. The recently-passed Genetic Information
Nondiscrimination Act (GINA) is illustrative of a possible
trend in employment discrimination toward privacy. In
particular, GINA includes a prohibition on the use of
genetic information in all employment decisions, affording
a measure of genetic privacy to potential and current
employees.
GINA stands in contrast to prior employment
discrimination statutes, which have often encouraged or
required employers to be knowledgeable of and consider a
particular identity trait through policies such as
reasonable accommodation, affirmative action, and the
disparate impact doctrine. …

Endorsement Clauses In A Post-White Legal System: Why These Restrictions Do Not Violate A Judicial Candidate's First Amendment Right To Free Speech, Shawna M. Portner

Georgia Law Review

Elections have remained an integral method of state
judicial appointments for over two centuries. However,
because the Founding Fathers imposed upon judges the
duty to neutrally uphold the U.S. and state constitutions,
state legislatures, per the recommendation of the ABA,
have imposed certain restrictions on the speech and
actions of judicial candidates to maintain impartiality. In
2002, the Supreme Court struck down one category of
these provisions in Republican Party of Minnesota v.
White. The Court declared Minnesota's announce clause,
which prohibited judicial candidates from voicing their
opinions on issues likely to come before the bench, to be an
unconstitutional …

A Judicial Solution To The Forum-Selection Clause Enforcement Circuit Split: Giving Erie A Second Chanc, Kelly A. Blair

Georgia Law Review

In The Bremen v. Zapata Off-Shore Co., the Supreme
Court established the federal standard of enforcing forum-
selections clauses as presumptively reasonable. The Court,
however, first addressed the enforceability of forum-
selection clauses in a diversity case in Stewart
Organization, Inc. v. Ricoh Corp., in which the Court held
that under Erie, federal law, specifically 28 U.S.C.
§ 1404(a), governs the enforceability of forum-selection
clauses. After Stewart, a split within the United States
Courts of Appeals developed when litigants used Rule 12
motions to dismiss-a procedural vehicle unaddressed by
the Stewart Court-to enforce these clauses. The circuit
split has two …

Skimming From The 2%: The Status Of Georgia's Restrictions On Shareholder Access To Corporate Information, Ruari J. O'Sullivan

Georgia Law Review

The Georgia Court of Appeals, in Mannato v. SunTrust
Banks, Inc., held that O.C.G.A. § 14-2-1602 abrogated all
common law rights to inspect corporate records. As a
result, shareholders in Georgia owning less than 2% of a
corporation'soutstandingshares suddenly lost the right to
petition a court to grant access to a corporation's books
and records. This Note argues that the Mannato decision
was incorrect. The Georgia Court of Appeals failed to
notice the significant procedural differences that existed
between the statutory and common law right of inspection
and erroneously applied Georgia's established law of
statutory abrogation. The court also brushed …

Impairment As Protected Status: A New Universality For Disability Rights, Michelle A. Travis

Georgia Law Review

This Article analyzes the fundamental change to federal
civil rights law that Congress accomplished through the
ADA Amendments Act of 2008 (the ADAAA). Congress
enacted the ADAAA in response to a series of United States
Supreme Court opinions that had narrowly interpreted the
definition of disability in the Americans with Disabilities
Act of 1990. Although many commentators have
recognized the ADAAA's intent to restore the class of
individuals with disabilities to the breadth that Congress
originally intended, this Article argues that the ADAAA
accomplished something more significant: it extricated
disability from the broader concept of impairment. As a
result, the …

Location, Location, Location: A "Private" Place And Other Ailments Of Georgia Surveillance Law Curable Through Alignment With The Federal System, Mary B. Martinez

Georgia Law Review

Georgia visual surveillance law prohibits any person
from observing, photographing, or recording any other
person in a private place and out of public view without
the consent of all persons observed. The rigidity of this
all-party consent requirement and the ambiguity of the
private/public place distinction leave investigators and
prosecutors in Georgia guessing as to the admissibility of
visually recorded evidence much of the time. On the other
hand, federal visual surveillance law encompasses a one-
party consent exception and is couched in terms of a
reasonable expectation of privacy under the Fourth

Amendment. Moreover, several federal courts have stated …

Balancing The Scales: Reforming Georgia's Common Law In Evaluating Restrictive Covenants Ancillary To Employment Contracts, Alan F. Pryor

Georgia Law Review

Crafting effective and enforceable restrictive covenants
ancillary to employment contracts has befuddled and
vexed attorneys, courts, and businesses in Georgia for
decades. Tracing its development through more than four
hundred years of judicial decisions, Georgia's common law
has grown increasingly contradictory, confusing, and
convoluted. Until the passage of the Restrictive Covenant
Act, Georgia judges grew increasingly hostile to restrictive
covenants; however, they failed to maintain a coherent set
of guidelines for evaluating such covenants. The
Restrictive Covenant Act marks a turning point in Georgia
employment law, and this Note provides a defense of the
Act.
The Restrictive Covenant Act is …

The First Amendment, Public School Students, And The Need For Clear Limits On School Officials' Authority Over Off-Campus Student Speech, Rory A. Weeks

Georgia Law Review

When, if ever, can school officials punish a student's off-
campus speech? The Supreme Court's student-speech
jurisprudence does not provide a clear answer. But this
much is clear: School officials do not possess absolute
authority over students' on-campus speech. Public school
students do not shed their First Amendment rights at the
schoolhouse gate. And yet during school or school-related
activities, public school students do not have coequal First
Amendment rights with adults in other contexts. During
school or school-related activities, school officials may
proscribe otherwise-permitted speech in order to fulfill the
school's basic educational mission, which includes
instructingstudents in civility. …

On The Need For Public Boarding Schools, Bret D. Asbury, Kevin Woodson

Georgia Law Review

Nowhere is the inadequacy of American public
education more striking than in high-poverty, urban
schools populated by disadvantaged minority students.
Despite decades of legal, policy, and scholarly efforts
aimed at addressing the challenges facing these schools,
the academic prospects of poor students are currently as
grim as they have been in recent memory. Reformers
seeking to address this problem have largely focused on
transforming public education from within by focusing on
school conditions or teacher performance. These efforts
have largely failed to bring about real progress: despite
decades of litigation and reform, our nation's most
disadvantaged children continue to lack …

Mutual Fund Performance Advertising: Inherently And Materially Misleading?, Alan R. Palmiter, Ahmed E. Taha

Georgia Law Review

Mutual fund companies routinely advertise the past
returns of their strong-performing, actively-managed
equity funds. These performance advertisements imply
that the advertised high past returns are likely to
continue. Indeed, investors flock to these funds despite
high past returns being a poor predictor of high future
returns. Thus, fund performance advertising is inherently
and materially misleading and violates federal securities
antifraud standards. In addition, the SEC-mandated
warning in these advertisements that "past performance
does not guarantee future results"fails to temper investors'
focus on past returns.
The SEC should do more to prevent investors from being
misled by fund performance advertisements. It …

Darkness On The Edge Of Town: How Entitlements Theory Can Shine A Light On Termination Of Transfers In Sound Recordings, Matthew Vincent H. Noller

Georgia Law Review

When Congress overhauled the Copyright Act in 1976, it
created the device of termination of transfers to protect
authors of copyrighted works from unremunerative
transfers. The scheme seemed straightforward, but
technology has created problems the Act's drafters never
could have anticipated. In particular, the application of
termination of transfers to sound recordings in 1976 was
little more than a shadow of uncertainty not worth dealing
with at the time. But that shadow has become a creeping
darkness, and no one seems sure how to clear it.
Now the darkness is here. Next year, artists like Bruce
Springsteen and Bob Dylan …

Human Rights And Counterterrorism: A Contradiction Or Necessary Bedfellows?, Amos N. Guiora

Georgia Law Review

Ten years after the 9/11 terrorist attacks, questions
remain regarding the relationship between human rights
and counterterrorism. The historical track record of the
Executive Branch, Supreme Court, and Congress in this
vein is troubling. While the contradiction suggested in
this Essay's title need not be the case, it is, nevertheless,
the persistent reality in American history.
This Essay assesses the current relationship between
human rights and counterterrorism. In doing so, it
reflects on wartime measures implemented by presidents
throughout U.S. history and recommends a way forward
that facilitates more effective protection of human rights

without impinging on legitimate national security …

The Chevron Two-Step In Georgia's Administrative Law, David E. Shipley

Georgia Law Review

Like federal and state administrative agencies
throughout the nation, Georgia's many boards,
commissions and authorities make policy when they apply
their governing statutes in promulgating regulations and
in ruling on specific matters like granting or denying an
application for a permit or determining the residency of a
candidate for public office. Sometimes governing statutes
are clear, but sometimes there is ambiguity. When there is
ambiguity in the governing statute, an agency must
interpret that legislation when it promulgates regulations
or decides a particular contested matter. This Article asks
and answers the fundamental question of what deference,
if any, must a …

Aggregation Of Probabilities And Illogic, Kevin M. Clermont

Georgia Law Review

Classical logic and probability theory produce in law the
troublesome paradox of aggregation of claims: On the
other hand, logic seems to tell us that the aggregated
likelihood of alternative claims elevates in response to
probability's rules; thus, if the plaintiff almost proves
claim A and almost proves an alternative but independent
claim B, then the plaintiff should win one. On the other
hand, because the law requires each claim to meet the
standard of proof, and thus refuses to apply the proof
standard to the aggregation, the plaintiff loses in
actuality; legal scholars despair in consequences-
including Ariel Porat …

Not So Obvious After All: Patent Law's Nonobviousness Requirement, Ksr, And The Fear Of Hindsight Bias, Glynn S. Lunney Jr., Christian T. Johnson

Georgia Law Review

Before the creation of the Federal Circuit in 1982,
nonobviousness served as the primary gatekeeper for
patents. When patent holders sued for infringement and
lost, more than sixty percent of the time, they lost on the
grounds that their patent was obvious. With the advent of
the Federal Circuit, nonobviousness became a much less
difficult hurdle to surmount. From 1982 until 2005, when
patent holders sued for infringement and lost, obviousness
was the reason in less than fifteen percent of the cases.
While obviousness remained formally a requirement of
patent protection, there can be little doubt that the Federal
Circuit …

Symposium Civil Rights Or Civil Wants?, Frederick W. Vaughan, Jennifer L. Case

Georgia Law Review

This Volume's Symposium commemorates the Fiftieth
Anniversary of Desegregation at the University of Georgia. On
Monday, January 9, 1961, two brave, African-American students-
Mr. Hamilton Holmes and Ms. Charlayne Hunter-registered for
classes on North Campus. Just three days before-and after a
lengthy court battle-U.S. District Judge William Bootle held in
Holmes v. Danner that the students were "fully qualified for
immediate admission" and "would already have been admitted had
it not been for their race and color." Since that historic moment,
UGA and the rest of our country have taken great strides to
provide equal opportunities to all. Yet, many …

((Re)Considering Race In The Desegregation Of Higher Education, Maurice C. Daniels, Cameron V. Patterson

Georgia Law Review

This Essay examines the struggle to desegregate the
University of Georgia (UGA) in the context of the broader
strategies to defeat segregation in higher education. In
doing so, this Essay explores Horace T. Ward's struggle to
enroll in UGA School of Law in Ward v. Regents, the first
lawsuit in Georgia history to attempt to dismantle the
centuries-old practice of segregation at UGA. The Essay
then examines the Holmes v. Danner case, which led to the
admission of the first African-American students at UGA
and the dismantling of segregation statewide in Georgia's
public colleges and universities.
Building upon this backdrop, …

Table Of Contents

Georgia Law Review

No abstract provided.

Discrimination Under A Description, Patrick S. Shin

Georgia Law Review

Discrimination Under a Description .......................... Patrick S. Shin 1
In debates about the permissibility of certain kinds of
differential treatment, our judgments often seem to depend
on how to conduct in question is described. For example,
legal prohibitions on same-sex marriage seem clearly
impermissible insofar as they can be described as a form of
sex discrimination, less clearly so, at least under federal
law, if described simply as sexual-orientation
discrimination, and arguably not discriminatory at all
insofar as they constitute a universally imposed disability
on marryingwithin one's own sex. It seems, in other words,
that the prohibitionof same-sex marriage constitutes …

Remembrance, Jennifer L. Chapman

Georgia Law Review

I never had Professor Dupre in class. In fact, I did not meet her
until the summer before my third year of law school. I was the
new Editor in Chief, and she had just been appointed as the
faculty advisor for the Georgia Law Review. Having heard about
Professor Dupre's classes, I was pretty sure I had walked into the
wrong office when I met the funny, cordial, and delightful woman
sitting behind the desk. This was the intimidating professor who
struck fear in the hearts of innumerable students? Impossible-
she was too nice. Professor Dupre and I continued …

Table Of Contents

Georgia Law Review

No abstract provided.

The Consequences Of A "War" Paradigm For Counterterrorism: What Impact On Basic Rights And Values?, Laurie R. Blank

Georgia Law Review

Policy makers have used the rhetoric of "war"
throughout the past century to describe a major
governmental or societal effort to combat an evil that
threatens society, national security or other communal

good. It is both a rhetorical tool and a resource
mobilization, and above all a coalescing of authority to
meet the challenge, whether poverty, drugs or-most
recently-terrorism. Soon after 9/11 made al Qaeda a
household word, the Bush Administration characterized
U.S. efforts to defeat al Qaeda as the "War on Terror."
Here, however, the terminology of "war" goes far beyond
rhetoric, resource re-allocation and centralizing of
authority. When …

Fatherhood By Conscription: Nonconsensual Insemination And The Duty Of Child Support, Michael J. Higdon

Georgia Law Review

Much of the law relating to child support is based on the
fact that it is typically in a child's best interest to receive
financial support from mothers as well as fathers. In fact,
child support is essentially a form of strict liability with
the justification being that the child is an innocent party,
and thus, even those men who never consented to the
sexual act that caused the pregnancy are nonetheless

liable for the support of the resulting child. These men
include males who become fathers as a result of statutory
rape and also adult males who became fathers …

American Electricpower V. Connecticut: Disaster Averted By Displacing The Federal Common Law Of Nuisance, Damian M. Brychey

Georgia Law Review

Historically, the federal common law of nuisance has
provided a means to regulate interstate pollution. With
the passing of legislative acts such as the Clean Water Act
and the Clean Air Act, however, traditional federal
nuisance lawsuits were displaced. The continued viability
of the federal common law of nuisance to regulate
pollution, specifically greenhouse gases, was brought to
the forefront of American jurisprudence in American
Electric Power Co. v. Connecticut. There, the Supreme
Court held that the Clean Air Act and the EPA actions the
Act authorizes displace any federal common law right to
seek abatement of greenhouse gases-reversing the …

Remembrance, Rebecca H. White

Georgia Law Review

My thanks to the Georgia Law Review for dedicating this
Volume to my former colleague and close friend, Professor Anne
Dupre.
In her Dedication and Remembrance in the prior issue, Hillary
Miller, the Review's Senior Managing Editor, described Professor
Dupre as a person who "lived a passionate life." Passionate indeed
is the word that comes to mind when remembering Anne Dupre.

Immigration And Civil Rights: State And Local Efforts To Regulate Immigration, Kevin R. Johnson

Georgia Law Review

This Essay explains why U.S. immigration law and
enforcement raises some of the nation's most pressing civil
rights concerns of the twenty-first century. First,
immigration and immigration enforcement implicate a
greater diversity of "people of color," including people of
Latina/o and Asian ancestry, than that encapsulated by
the Black/white paradigm that historically has
dominated thinking about civil rights in the United
States. Second, immigration enforcement implicates civil
rights concerns different in kind than those raised by the
monumental efforts to dismantle Jim Crow and
desegregate American social life, which constituted the
long and hard-fought civil rights achievement of the
twentieth …

Civil Recourse, Damages-As-Redress, And Constitutional Torts, Michael L. Wells

Georgia Law Review

Modern tort theory is dominated by the principle of loss
allocation, which uses liability and damages as
instruments for assigning losses to deter unwanted
behavior and to compensate the plaintiff. Under loss
allocation, the central principle of damages is to make the
plaintiff whole through 'full" compensation. Recently, as
an alternative to loss allocation,Professors John Goldberg
and Benjamin Zipursky have advanced a civil recourse
theory of damages. In contrast to loss allocation, civil
recourse focuses tort law on empowering plaintiffs to seek
redress by evaluating damages through the lens of 'fair"
compensation. Goldberg and Zipursky's work is especially
timely because, …

Playing Well With Others-But Still Winning: Chief Justice Roberts, Precedent, And The Possibilities Of A Multi-Member Court, William D. Araiza

Georgia Law Review

This Essay considers methods by which a Supreme
Court Justice inclined to weaken precedent may do so
without explicitly overruling cases. Adding to the
literature examining "stealth overruling" and the

dynamics of multi-judge courts, it examines instances
from the first five years of the Roberts Court where Chief
Justice Roberts acted in a way consistent with that of a
judge who strategically situates himself among his
colleagues so as to erode precedent while appearing to
uphold it. The Essay does not speculate that the Roberts
Court, or Chief Justice Roberts himself, is any more
inclined than past Courts or Justices …

Table Of Contents

Georgia Law Review

No abstract provided.

The Prisoners' Property Dilemma: The Proper Approach To Determine Prisoners' Protected Property Interests After Sandin And Castle Rock, Corbin R. Kennelly

Georgia Law Review

The Proper approach to determine when prisoners have
property interests protected by the Due Process Clause is
currently uncertain. The Supreme Court addressed
prisoners' liberty interests in Sandin v. Conner, but lower
courts have split over whether to apply the Sandin test to
prisoners' property interests. Further complicating
matters, the Supreme Court recently addressed property
interests generally in Town of Castle Rock v. Gonzales.
There, the Court seemed to add additional hurdles to the
finding of protected property interests: A statute must
clearly indicate that it gives rise to an entitlement; the
entitlement must have an ascertainable monetary value;
and, …