Law Commons^™

Modifying Unjust Sentences, E. Lea Johnston

Georgia Law Review

Judicial sentence modification offers a means to address the phenomenon of over-incarcerationas well as the harsh prison conditions that threaten unjust punishment. Indeed, some legislatures have framed states' early release provisions as fulfilling goals of proportionality and just punishment. This Article explores whether the tools available to judges at sentence modification hearings are adequate to respond to the unjust punishment experienced by prisoners. In examining this question, the Article focuses on one population particularly likely to experience disproportionate or inhumane punishment: inmates with serious mental disorders. A deep literature suggests that individuals with serious mental illnesses are especially likely to …

Laissez Fair:The Case For Alternative Litigation Funding And Assignment Of Lawsuit Proceeds In Georgia, David T. Adams

Georgia Law Review

This Note discusses the value of alternative litigation funding (ALF) and the legal challenges affecting the ALF industry in Georgia. More specifically, it identifies a way to maximize ALF's benefits for plaintiffs with personal tort and employment discrimination claims. Tort victims who are rendered incapable of working, and employees who have lost jobs because of workplace discrimination or retaliation,face immediate financial burdens-they may be unable to afford food, housing, health care, transportation, and other necessities. This economic pressure often forces plaintiffs to settle quickly for less than the value of the harm inflicted. But ALF companies offer a workable solution …

Dangers In Justifying A Means For An End: U.S. Supreme Court Faces Risky Interpretation Question With Ppaca, Exchanges, And Premium Tax Credits, Erin M. Peterson

Georgia Law Review

This Note examines the text of the Patient Protection and Affordable Care Act to determine whether Congress intended for premium tax credits to be available on only state Exchanges, or on both state and federal Exchanges. This Note argues that strict textualism reveals that Congress clearly intended to limit premium tax credits to what the text defines as "an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act," which does not include federal Exchanges. However, this interpretation of the text nearly eliminates an essential function of the Patient Protection and Affordable Care Act …

Introduction, Usha Rodrigues, Mehrsa Baradaran

Georgia Law Review

Our goal when organizing this symposium was something different from the typical academic conference. We wanted to extend a conversation beyond academia to explore the process of how laws are made, how their implementation affects industry, and how these laws might realistically be improved. In other words, we were interested in examining both the sausage-making of financial regulation and how that sausage is placed in a bun and served to the general public: that is, not only how financial regulation is hashed out on the floors of Congress, but also how it is implemented at the agency level. We focused …

The Risks Of Shadow Insurance, Daniel Schwarcz

Georgia Law Review

Shadow banking - often defined as financial intermediation that provides maturity transformation outside of the formal confines of a bank'-played a central role in causing the 2008 financial crisis. For this reason, a 2013 report of the New York Department of Financial Services generated substantial controversy when it labeled some life insurers' practices of reinsuring insurance policies with affiliated captive insurers as "shadow insurance." Yet the moniker of shadow insurance was not without at least some justification. Like shadow banking, life insurers' reinsurance of policies with affiliated captives is a form of regulatory arbitrage that moves traditional insurance risks from …

Table Of Contents

Georgia Law Review

No abstract provided.

(Don't) Give It Up Or Turnit A Loose: State Law Copyright Protection Of Pre-1972 Sound Recordings In Blank-Slate Jurisdictions Like Georgia, Payton M. Bradford

Georgia Law Review

The issue of pre-1972 sound recordings-devoid of federal copyright protection-has emerged as an important legal issue with changes in how musicians are collecting royalties for music. Sound recordings have a complicated and fragmented history under United States copyright law. While recognized as a separate form of creative work from musical compositions since the early twentieth century, they nonetheless remained unprotected as separate works under federal law until 1972. Any sound recordings fixed prior to February 15, 1972, however, remain unprotected under federal law and are subject to common law copyright or state statutes. A majority of states, including Georgia, lack …

The Financial Industry's Plan For Resolving Failed Megabanks Will Ensure Future Bailouts For Wall Street, Arthur E. Wilmarth Jr.

Georgia Law Review

Wall Street has achieved a remarkable political comeback from the financial crisis of 2007-2009. Public anger over bailouts of large financial institutions spurred Congress to pass the Dodd- Frank Wall Street Reform and Consumer Protection Act (Dodd- Frank) in July 2010.1 Megabanks, however, used their political influence to weaken Dodd-Frank's provisions, and they have pursued a determined campaign since 2010 to undermine Dodd- Frank's implementation. A primary goal of Dodd-Frank is to end "too big to fail" (TBTF) treatment for systemically important financial institutions (SIFIs) and their creditors. During the debates over Dodd-Frank, however, Wall Street defeated two major initiatives …

From Fedspeak To Forward Guidance: Regulatory Dimensions Of Central Bank Communications, Robert B. Ahdieh

Georgia Law Review

Let's pause here and note what this moment represented. For the first time, the [Federal Open Market] Committee was using communication-mere words-as its primary monetary policy tool. Until then, it was probably common to think of communication about future policy as something that supplemented the setting of the federal funds rate. In this case, communication was an independent and effective tool for influencing the economy. The FOMC had journeyed from "never explain" to a point where sometimes the explanation is the policy. - Janet L. Yellen'

In late 2008, as the full impact the Global Financial Crisis would have on …

The Supreme Court And The Rehabilitative Ideal, Chad Flanders

Georgia Law Review

Graham v. Florida was a watershed decision, not least because of the centrality of the "rehabilitative ideal" to its holding that life in prison for juveniles convicted of nonhomicide crimes was cruel and unusual. The Court's emphasis on rehabilitation was surprising both because rehabilitation was barely included as a 'purpose of punishment" in prior decisions of the Court, but also in terms of the history of academic and legislative skepticism toward rehabilitation. Courts and commentators have struggled to make sense of both the meaning and the scope of Graham's rehabilitative holding. This Article places Graham in the context of the …

Visualizing Change In Administrative Law, Aaron L. Nielson

Georgia Law Review

Although few realize it, the structure of administrative law has not changed much in two decades. Unlike past eras of upheaval, the key statutes, institutions, and judicial doctrines that defined administrative law in the early 1990s remain remarkably intact today. Administrative law's complexity, however, makes it difficult to see the big picture. This Article addresses that complexity by introducing a new visual framework. This framework has two principal benefits. First, it illustrates how administrative law's many parts fit together and shows that the field has been in a holding pattern for a long time. Second, it also allows scholars to …

The Sixth Commissioner, Nadelle Grossman

Georgia Law Review

The federal securities laws grant broad rulemaking authority to the Securities and Exchange Commission (SEC). In promulgating rules, the SEC must not only ensure that its rules protect investors and the public interest, but also consider the effects of its rules on efficiency, competition, and capital formation (the ECCF mandate). However, the SEC's rulemaking authority has been frustrated. In two decisions striking down SEC rules, the D.C. Circuit has required the SEC to conduct a quantitative cost-benefit analysis under the ECCF mandate. This contrasts with the SEC's historic practice of qualitatively assessing the effects of its rules. While these D.C. …

Keynote Reflections: The Public Governance Duty, Steven L. Schwarcz

Georgia Law Review

There has been real frustration with the SEC and other government agencies for not holding individuals responsible for the excessive risk-taking that was a principal cause of the 2008 to 2009 global financial crisis (Financial Crisis) and its associated banking failures. Enforcement has focused instead on the financial firms themselves. But being managed by individuals, firms themselves are the second-best targets of deterrence. Targeting managers in their personal capacity is thus widely viewed as a greater, and perhaps a more optimal, deterrent than firm-level liability. Better deterrence is critical because insufficient deterrence could sow the seeds-as may already be occurring-for …

Mitigating Foul Blows, Mary N. Bowman

Georgia Law Review

For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions. Yet while appellate courts are often quick to condemn prosecutorial trial misconduct, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel's failure to object or concluding that the misconduct was merely harmless error. Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts' attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary. Cognitive bias research illuminates the reasons for, and …

Rescission Under The Truth In Lending Act: Borrowers Should Be Required To File Suit Within Three Years, Michael F. Green Jr.

Georgia Law Review

During the Financial Crisis of 2008 and the Great Recession that followed, homeowner defaults and foreclosures increased dramatically. These homeowners facing foreclosure had few options to obtain relief and little leverage to negotiate with their lenders. One of the few places they could turn was to the Truth in Lending Act (TILA), which provides that consumers can rescind certain home loans for up to three years after loan closing if the lender failed to make certain material disclosures to the consumer prior to closing. In the wake of the Financial Crisis, a circuit split emerged regarding this three-year temporal limitation. …

Exemption From The Common Fate: Refuge For Individual Debtors Trapped By Structured Settlements, Factoring Companies, And The Bankruptcy Code In Georgia, Michael C. Sullivan

Georgia Law Review

While the number of tort filings has been increasing in recent decades, the number of trials resulting from these claims has been steadily declining. Instead of sacrificing time and resources in court, parties choose settlement, frequently in the form of a structured settlement where payments are dispersed over a period of time. These structured settlements provide much-needed security for tort victims, particularly those who unable to work and are especially vulnerable to losing their settlements. But what happens when these victims find that they have expenses that they cannot cover with their deferred payments? Many tort victims wind up facing …

Playing Favorites: Congress's Denial Of Equal Sovereignty To The States In The Professional And Amateur Sports Protection Act, Justin W. Mckithen

Georgia Law Review

The Professional and Amateur Sports Protection Act of 1992 (PASPA) illegalizes state-sponsored sports wagering activity nationwide. PASPA was intended to be a protective measure, as sports wagering was feared to threaten the integrity of sports. Grandfathering provisions in PASPA, however, exempt sports wagering schemes in Delaware, Montana, Nevada, and Oregon-effectively granting these states a monopoly over the (legalized) sports wagering industry. Faced with budgetary crises and other economic hardships, New Jersey is currently at the forefront of an effort to overturn PASPA and permit the other forty-six states to legalize sports wagering in their jurisdictions, a measure that could generate …

Table Of Contents

Georgia Law Review

No abstract provided.

Outsourcing, Data Insourcing, And The Irrelevant Constitution, Kimberly N. Brown

Georgia Law Review

Long before revelations of the National Security Agency's data collection programs grabbed headlines, scholars and the press decried the burgeoning harms to privacy that metadata mining and new surveillance technologies present. Through publicly accessible social media sites, web-tracking technologies, private data mining consolidators, and its own databases, the government is just a mouse click away from a wealth of intimate personal information that was virtually inaccessible only a decade ago. At the heart of the conundrum is the government's ability to source an unprecedented amount of personal data from private third parties. This trail of digital information is being insourced …

Proper Pleading Or Premature Proof? Rule 9(B)'S Particularity Requirement And The False Claim S Act, Fisher K. Law

Georgia Law Review

Many taxpayer dollars are paid to private contractors supplying goods and services necessary to carry out federal programs in areas like healthcare, defense, and education. These private contractors profit heavily from their dealings with the federal government, but unfortunately not all of these contractors are so patriotic. Indeed, some steal from the treasury by invoicing goods or services they did not actually provide. Congress attempted to reel in this dishonest practice with its enactment of the False Claims Act during the Civil War. To supplement the enforcement effort of the Department of Justice, Congress included a qui tam provision allowing …

Intentional Pass: Analyzing Baseball's Antitrust Exemption As Applied To Broadcasting Agreements In Laumann V. National Hockey League, Jacob M. Ware

Georgia Law Review

For more than a half-century, Major League Baseball's exemption from antitrust laws has intrigued sports fans and legal scholars alike. It seems only fitting that America's pastime would have an exemption with origins as mysterious and debated as the sport itself. Created by the Supreme Court and reinforced by Congress, the "baseball exemption" in the modern era continues to generate litigation. Like an umpire determining whether a baseball is fair or foul, courts today must judge the boundaries of baseball's exemption. Major League Baseball's owners may benefit from the exemption, but its fans often pay the price. The League has …

Table Of Contents

Georgia Law Review

No abstract provided.

Digital Medicine, The Fda, And The First Amendment, Adam Candeub

Georgia Law Review

Digital medicine might transform healthcare more fundamentally than the introduction of anesthesia or germ basis theory of disease. Already, tens of thousands of "medical apps" are available for smartphones. These computer applications can measure blood pressure, pulse, lung function, oxygenation level, sugar level, breathing rate and body temperature-and can even diagnose skin cancer, analyze urine, and take an echocardiogram. In fall 2013, the Federal Drug Administration (FDA) asserted regulatory authority over mobile medical applications and other digital medical services, threatening to chill, if not, destroy this innovation. This Article argues that the FDA stands on firm legal ground regulating medical …

Our Constitutional Commons, Brigham Daniels, Blake Hudson

Georgia Law Review

While much has been written about the U.S. Constitution, very little if anything at all, has been said about the ways in which the Constitution shares attributes with the commons. This Article examines the Constitution and the efforts to influence the shape and scope of its application through the lenses developed by scholars for assessing both common good and public good resources. Focusing on these interrelated lenses provides a unique perspective on both the U.S. Constitution and those attempting to influence its text and its interpretation. The synergy and interaction between the common good and public good dimensions of the …

Structural Tax Exceptionalism, James M. Puckett

Georgia Law Review

Following the Supreme Court's landmark decision in Mayo Foundation for Medical Education and Research v. United States, many scholars of tax law have declared that Mayo marks the death of tax exceptionalism. The tax exceptionalist view holds that because tax is different or special, generally applicable administrative law procedural rules and doctrines do not apply in the tax context. In Mayo, however, the Supreme Court held that generally applicable administrative law rules and doctrines do apply to the Treasury Department and the IRS. Contrary to the prevailing narrative that proclaims the death of tax exceptionalism, this Article posits that the …

Without A Pilot: Navigating The Space Between The First Amendment And State And Federal Directives Affecting Drone Journalism, Leah M. Davis

Georgia Law Review

A new player in American airspace, the drone, creates greater opportunities for news gathering. But with new opportunities, come new rules. Current legislatures, regulators and courts face the challenge of creating and enforcing a legal framework by which this new technology can be integrated into American airspace. The debate surrounding proper drone directives is influenced by competing policies of privacy, security, and First Amendment concerns. This Note surveys past and present state and federal directives on drone use, and argues for the creation of a separate set of guidelines for Press drones. Separate directives would ensure that news outlets are …

Table Of Contents

Georgia Law Review

No abstract provided.

Politics In Securities Enforcement, Urska Velikonja

Georgia Law Review

American securities enforcement agencies often face charges that they use their enforcement power to further political goals.' Most recently, Standard & Poor's credit rating agency claimed that the U.S. Department of Justice unfairly singled it out for prosecution for fraudulent credit ratings after it downgraded U.S. sovereign debt. The U.S. Securities and Exchange Commission (SEC or the Commission), too, has been accused of using its enforcement politically: of bringing enforcement actions to improve its political standing, to punish its detractors, or to deflect attention from negative reports about its activities; and of holding back investigations of politically-connected figures.

Bank Regulation And Securitization: How The Law Improved Transmission Lines Between Real Estate And Banking Crises, Erik F. Gerding

Georgia Law Review

Financial crises take many forms. Real estate crises can devastate economies.' So too can bank crises. Stock market crashes can precipitate crises of their own. The "subprime crisis" represents the confluence and worst of all three; like three cyclones merging together in warm offshore waters, these three kinds of crises generated even more destructive force when conjoined. The panic that took shape in U.S. real estate and capital markets in 2007 represents another example in a long historical line of intertwined banking and real estate crises. Securitization served as a new coupling rod joining cycles in real estate and banking …

Cyber Risks: Emerging Risk Management Concerns For Financial Institutions, Kristin N. Johnson

Georgia Law Review

Rumors posit that, within the last two years, hackers caused outages, disrupting service for the two largest securities exchanges in the world-the NASDAQ and the New York Stock Exchange.

Disappointingly, regulatory reform is often backward-looking. While regulators toil to implement rules to prevent the last crisis from reocurring, new and more perilous threats evade detection. With increasing frequency, cyberattacks threaten critical infrastructure resources such as nuclear centrifuges, electrical grids, and air defense systems. Cyberattacks pose a burgeoning and underexplored universe of emerging concerns impacting areas as diverse as big-box retail stores, casual-dining chains, online retail auctions, and national security. Even …