Law Commons^™

Evidence, Marc T. Treadwell

Mercer Law Review

Several amendments to the Federal Rules of Evidence became effective December 1, 2006. Rule 404, which governs the use of character evidence offered to prove conduct, has been amended to clarify that character evidence is generally not admissible in civil cases. Apparently at the behest of the Criminal Division of the Department of Justice, Rule 408, which addresses the admissibility of evidence of conduct and statements made in settlement negotiations, has been amended to expand the use of settlement evidence in criminal cases. This change will be particularly relevant to Eleventh Circuit criminal law practitioners in light of the court's …

Bankruptcy, James D. Walker Jr., Amber Nickell

Mercer Law Review

"Stringent execution" may be the watch phrase for implementation of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"). The bankruptcy bar has lived with BAPCPA for well over a year, and if one common thread arises in the case law, it is judges dissatisfaction with what may kindly be referred to as "drafting flaws." Many courts have highlighted these flaws-and other perceived inadequacies in BAPCPA-by ruthlessly enforcing the statute's plain language. This has already led to the enactment of one amendment by Congress, as well as criticism from some of its members. Whether further amendments will follow …

Daimlerchrysler V. Cuno: The Supreme Court Hits The Brakes On Determining The Constitutionality Of Investment Incentives Given By States To Corporate America, Jonathan Edwards

Mercer Law Review

In DaimlerChrysler Corp. v. Cuno, the United States Supreme Court, under the pen of Chief Justice Roberts, unanimously held that state taxpayers did not have Article III standing to challenge local property tax abatements and investment tax credits given to DaimlerChrysler Corporation ("Daimler"). Claiming standing as municipal and state taxpayers, the plaintiffs challenged the City of Toledo and the State of Ohio's decisions to offer Daimler certain exemptions from and reductions of its local property and state franchise taxes. The Court held that the plaintiffs failed to satisfy the injury-in-fact and redressability requirements of standing because their alleged injury …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

Similar to the 2005 survey period, during the 2006 survey period, the Eleventh Circuit Court of Appeals continued its trend of issuing fewer and fewer published decisions in the area of employment discrimination. The court issued only six published decisions all year involving Title VII and only published nine opinions in the area of employment discrimination overall. With respect to unpublished opinions, however, the court continued to be extremely active, issuing 103 unpublished Title VII opinions and 148 unpublished employment discrimination opinions overall. This is further evidence of the fact that despite the proliferation of employment discrimination cases before the …

The Centrality Of Metaphor In Legal Analysis And Communication: An Introduction, David T. Ritchie

Mercer Law Review

Law, as a domain of human enterprise, is fundamentally discursive in nature. As such, understanding the elements of legal discourse, both analytical and communicative, is vital to understanding the nature of the enterprise. Metaphorical reasoning, and the communication of that reasoning, is one such element. Perhaps metaphor is one among many elements of legal discourse. In this view, metaphor theory would take its place alongside logic, narrative theory, rhetoric, and so on.

Mind, Metaphor, Law, Mark L. Johnson

Mercer Law Review

Change, as John Dewey observed, is a basic fact of human experience. We are temporal creatures, and the situations we find ourselves in, the situations that make up the fabric of our lives, are always evolving and developing. The omnipresence of change throughout all human experience thus creates a fundamental problem for law, namely, how can law preserve its integrity over time, while managing to address the newly emerging circumstances that continually arise throughout our history? If, following one extreme, we think of law as fixed, static, and univocal in its content, then law runs the risk of losing its …

Re-Embodying Law, Steven L. Winter

Mercer Law Review

It was fun to watch the audience of mostly first-year students during Mark Johnson's presentation. Seven weeks into their first semester of law school, this was clearly the most fun they had had so far. And it was easy to see why: law school takes place "from the neck up," so to speak. It is so relentlessly about reason abstracted from the ordinary interests, passions, and other embodied considerations of everyday (not to mention college) life. This deracination of law is ritualized metaphorically in the black robes that enshroud our judges' bodies as if to say, "See, it is all …

Levels Of Metaphor In Persuasive Legal Writing, Michael R. Smith

Mercer Law Review

No abstract provided.

Question And Answer Period Of Symposium Participants

Mercer Law Review

No abstract provided.

Who Is On The Outside Looking In, And What Do They See?: Metaphors Of Exclusion In Legal Education, David T. Ritchie

Mercer Law Review

Many people might assume that metaphors are linguistic devices that pithily play on associations between unrelated kinds of things. These associations, many might further assume, show how deft an author can be at using a turn of phrase or how agile a speaker might be using widely known imagery to illustrate a point. Such assumptions are not completely arbitrary, as metaphors do indeed have important literary aspects. This device, though, is often presumed to be a mere literary or rhetorical trope designed to enliven one's language or show intellectual dexterity in discourse. Metaphor is, in this view, a mere trick …

Federal Rule 50: Medium Rare Application? Unitherm Food Systems, Inc. V. Swift-Eckrich, Inc., Leslie Eanes

Mercer Law Review

The year 2006 marked a historical year for the now seventy-year-old Federal Rule of Civil Procedure 50. In addition to an overhaul of the statutory language, which, absent contrary congressional action, became codified December 1, 2006, the Supreme Court issued its landmark opinion in Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc. In what seems to be a straightforward procedural dictate from the High Court, Unitherm has actually resulted in confusion among federal circuits anxious to follow its precedent.

Politics As Usual: The Continuing Debate Over Partisan Gerrymandering Schemes In League Of United Latin American Citizens V. Perry, Steve Flynn

Mercer Law Review

In League of United Latin American Citizens v. Perry, the Supreme Court held that a statewide challenge to the Texas State Legislature's mid-term redistricting plan did not violate Section Two of the Voting Rights Act of 1965, but that the redrawing of district lines in one particular district (District 23) did violate the Act. The case leaves open the ability of the Supreme Court to adjudicate political gerrymandering schemes in cases where equal protection claims are made.

Illinois Tool Works Inc. V. Independent Ink, Inc.: The Intersection Of Patent Law And Antitrust Law In The Context Of Patent Tying Arrangements, Tiffany L. Williams

Mercer Law Review

It is increasingly common for businesses to sell products that are protected by a patent. But what happens when the company markets a bundle of products where some products are protected by patents, but others are not? Under well-settled antitrust jurisprudence, such marketing typically would raise antitrust concerns as a tying arrangement only where there are at least two separate products, the company has market power over one of the products, and the company requires that customers buy one or more additional products as part of a bundle.

In Illinois Tool Works Inc. v. Independent Ink, Inc., the United …

Testimonial? What The Heck Does That Mean?: Davis V. Washington, Lindsay Brewer

Mercer Law Review

The 2004 United States Supreme Court decision in Crawford v. Washington reformulated the standard for determining when the admission of hearsay' statements in criminal cases is permitted under the Confrontation Clause of the Sixth Amendment to the United States Constitution. The majority held that the Confrontation Clause operates to exclude out-of-court statements that are "testimonial" in nature, unless the person making the statement is unavailable to testify and the defendant has had an opportunity for cross-examination. Chief Justice Rehnquist, who concurred in the judgment, expressed concerns that the decision would lead to uncertainty in future criminal trials because the Court …

Of Metaphor, Metonymy, And Corporate Money: Rhetorical Choices In Supreme Court Decisions On Campaign Finance Regulation, Linda L. Berger

Mercer Law Review

When a corporation participates in the public sphere, its participation often takes the form of money. Corporate money must be given to someone to bring corporate participation into being-money to spend on public relations, advertising, or lobbying, or money to spend in a political campaign. Though the form is the same, the Supreme Court has treated these modes of corporate participation very differently. On the one hand, corporate money is seen as speech when it is the means used for corporations to sell products or state positions on issues. On the other, a majority of the Rehnquist-O'Connor Court perceived corporate …

Against Acting 'Humanely', Michael Goldberg

Mercer Law Review

Who could possibly be against acting 'humanely'?

I, for one, am willing to be charged with such an offense, for the charge is too broad. What precisely does it mean to act 'humanely'? Name some cases of exemplary individuals acting 'humanely' to give some kind of context for the charge; furnish some case histories that depict specific human beings who stand as virtual metaphors of 'humanity at its best.' I maintain such narratives as these are indispensable if our talk of acting 'humanely' is to have any real content. They provide the various contexts within which we can see what …

Hush, Little Baby, Don't Say A Word: How Seeking The "Best Interests Of The Child" Fostered A Lack Of Accountability In Georgia's Juvenile Courts, Sarah Gerwig-Moore, Leigh S. Schrope

Mercer Law Review

Since 1899, when America's first juvenile court opened its doors to the lost children of Chicago, two primary assumptions have governed the administration of the juvenile justice system: that it should operate in parens patriae for the "best interests of the child"' and that it should be given flexibility and leeway in doing so. Georgia's juvenile courts, established in 1908, function squarely within that framework: "[a] petition alleging delinquency, deprivation, or unruliness of a child shall not be filed unless the court or a person authorized by the court has determined and endorsed upon the petition that the filing of …

Retelling The Darkest Story: Mystery, Suspense, And Detectives In A Brief Written On Behalf Of A Condemned Inmate, Philip N. Meyer

Mercer Law Review

I've never used the whodunit technique, since it is concerned altogether with mystification, which diffuses and unfocuses suspense. It is possible to build up almost unbearable tension in a play or film in which the audience knows who the murderer is all the time, and from the very start they want to scream out to all the other characters in the plot, "Watch out for So-and-So! He's a killer!" There you have the real tenseness and an irresistible desire to know what happens, instead of a group of characters deployed in a human chess problem. For that reason I believe …

Lawyers And Prophetic Justice, Timothy Floyd

Mercer Law Review

The statue of Lady Justice, a blindfold over her eyes, holding scales in one hand and a sword in the other, is our traditional visual image of justice. The scales convey the idea of neutrality and the weighing of competing interests; they emphasize rationality and the application of neutral principles in decision making. The blindfold emphasizes equality before the law, that the law is dispassionate and objective, and that decision making is untainted by bias. The statue also implies the stability and permanence of the justice system.

In my experience with lawyers, justice is not a regular topic in our …

Definitely Not Harmless: The Supreme Court Holds That The Erroneous Disqualification Of Retained Counsel Warrants Automatic Reversal In United States V. Gonzalez-Lopez, James A. Robson

Mercer Law Review

In United States v. Gonzalez-Lopez, the United States Supreme Court held that the erroneous disqualification of a criminal defendant's retained choice of counsel violates the Sixth Amendment to the United States Constitution and must result in the automatic reversal of the defendant's conviction. In reaching this conclusion, the Court rejected the Government's argument that a defendant who is denied his choice of counsel must prove prejudice by showing the defendant's substitute counsel was ineffective within the meaning of Strickland v. Washington. Instead, the Court concluded that because a complete violation of the Sixth Amendment's Counsel Clause occurs when …

Hey Officer, Didn't Someone Teach You To Knock? The Supreme Court Says No Exclusion Of Evidence For Knock-And- Announce Violations In Hudson V. Michigan, David Carn

Mercer Law Review

In Hudson v. Michigan, the United States Supreme Court held in a 5-4 decision that evidence discovered by police after a knock-and-announce violation will not necessarily be excluded in court. The majority opinion, written by Justice Scalia, stated that exclusion is only appropriate where the interests protected by the knock-and-announce requirement are implicated and that hiding evidence from the government is not one of those interests. The Court further held that the substantial social costs of excluding evidence discovered upon knock-and-announce violations outweigh the deterrent effects of the exclusionary rule against police misconduct and, therefore, the application of the …

Keeping The Government Away From Medicaid Recipients' Pocketbook: Protecting Medicaid Recipients' Rights To Proceeds Of Third-Party Settlements In Arkansas Department Of Health & Human Services V. Ahlborn, Sean Sandison

Mercer Law Review

In Arkansas Department of Health & Human Services v. Ahlborn, the United States Supreme Court approached the contentious issue of whether Medicaid and state Medicaid agencies can recover expenses incurred on behalf of a Medicaid recipient from the entirety of the recipient's third-party settlement. Over the past decade, several states and the United States Department of Health and Human Services have reached opposite results on this question. In its unanimous opinion, the Court quelled the debate by limiting Medicaid and the corresponding state programs' recoveries from third-party settlements to the proceeds representing repayment of medical expenses, a move likely …

Crawford V. Washington And Davis V. Washington'S Originalism: Historical Arguments Showing Child Abuse Victims' Statements To Physicians Are Nontestimonial And Admissible As An Exception To The Confrontation Clause, Tom Harbinson

Mercer Law Review

Under Crawford v. Washington and Davis v. Washington, the Supreme Court has created a new interpretation of the right of confrontation that holds out-of-court testimonial statements inadmissible without cross-examination. In order to determine if statements for purposes of medical diagnosis and treatment should continue to be an exception to confrontation, this Article reviews the historical evidence cited by the Court. The Court's originalist analysis holds that the only exception for what the Court refers to as "testimonial statements" is the exception for dying declarations. This Article establishes that a significant number of confrontation exceptions existed for testimonial statements in …

Involuntary Commitment Of People With Mental Retardation: Ensuring All Of Georgia's Citizens Receive Adequate Procedural Due Process, Laura W. Harper

Mercer Law Review

In the state of Georgia there are approximately three thousand citizens who are confined to segregated living institutions because of their disabilities. Many of these individuals are placed in institutions involuntarily through legal proceedings. Some of these individuals have mental retardation, a condition that occurs during a person's development and results in below normal intellectual functioning. Many disability advocates argue that segregation and institutionalization of people with mental retardation is not needed, although all do not agree. Despite strong advocacy for the rights of people with disabilities, many continue to be institutionalized, often because their families can find no other …

Commission Control: The Court's Narrow Holding In Hamdan V. Rumsfeld Spurred Congressional Action But Left Many Questions Unanswered. So What Happens Now?, Thomas M. Gore

Mercer Law Review

By a 5-3 vote in Hamdan v. Rumsfeld, the United States Supreme Court held that the military commissions established by President George W. Bush to try al Qaeda members and other terrorists lacked the "power to proceed because [their] structure and procedures" violate the Uniform Code of Military Justice ("UCMJ") and the Geneva Conventions. In so holding, the Court exercised its power as a significant check on presidential power, but left many questions unanswered. In the wake of Hamdan, Congress enacted the Military Commissions Act of 2006 ("MCA"'). The answers to the questions not addressed by the Court …

King Solomon: Did The Supreme Court Make A Wise Decision In Upholding The Solomon Amendment In Rumsfeld V. Forum For Academic & Institutional Rights, Inc.?, Brook Bristow

Mercer Law Review

In a unanimous decision in Rumsfeld v. Forum for Academic & Institutional Rights, Inc., the United States Supreme Court upheld the constitutionality of the Solomon Amendment. The Court ruled that under the Solomon Amendment, military recruiters must be given the same access as nonmilitary recruiters on university campuses. The Court's holding clarified three First Amendment tangential freedom issues: (1) what is and what is not expressive conduct; (2) what constitutes compelled speech; and (3) what is meant by expressive association.

Coalitions And Collective Memories: A Search For Common Ground, Ediberto Roman

Mercer Law Review

We're going to take this movement and... reach out to the poor people in all directions in this country .. into the Southwest after Indians, into the West after the Chicanos, into Appalachia after poor whites, and into the ghettos after Negroes and Puerto Ricans. And we are going to bring them together and enlarge this campaign into something bigger than just a civil rights movement for Negroes.

—Dr. Martin Luther King, Jr.

I never will forget one little blonde co-ed.... She demanded right in my face, "don't you believe there are any good white people?" . "What can I …