Law Commons^™

Trial Practice And Procedure, John O'Shea Sullivan, Ashby Kent Fox, Amanda E. Wilson

Mercer Law Review

The 2012 survey period yielded several noteworthy decisions relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit, several of which involved issues of first impression. This Article analyzes recent developments in the Eleventh Circuit, including significant rulings in the areas of arbitration, statutory interpretation, subject matter jurisdiction, and civil procedure.

Admiralty, Colin A. Mcrae, Edgar M. Smith, Kate C. Lawson

Mercer Law Review

I. APPELLATE ADMIRALTY JURISDICTION

II. SEAFARER ARBITRATION CLAUSES

III. CRUISE SHIP'S DUTY TO WARN

IV. FORUM SELECTION CLAUSES IN CRUISE SHIP TICKETS

V. CONTRACTUAL STATUTE OF LIMITATION IN CRUISE SHIP TICKETS

VI. MARITIME PERSONAL INJURY

VII. MARITIME ATTACHMENT

VIII. LONGSHORE AND HARBOR WORKERS' COMPENSATION ACT

IX. SEAMAN STATUS UNDER THE JONES ACT

X. MARITIME JURISDICTION

XI. SALVAGE

Federal Criminal Discovery Reform: A Legislative Approach, Bruce A. Green

Mercer Law Review

Suppose that federal prosecutors have conducted an investigation culminating in an indictment. Although the prosecutors believe that they have enough evidence to secure a conviction and are personally convinced that the defendant is guilty, some of the evidence they have collected is favorable to the defendant, because it tends to show that the defendant is innocent or that prosecution witnesses should not be believed. Must prosecutors disclose the favorable evidence to defense counsel to use in investigating, advising the defendant, plea negotiations, or trial? Under current federal law, the answer is generally "no." Unless favorable evidence falls within one of …

Subverting Brady V. Maryland And Denying A Fair Trial: Studying The Schuelke Report, Bennett L. Gershman

Mercer Law Review

The Schuelke Report about the ill-fated federal prosecution of the late-Senator Ted Stevens is an extraordinary contribution to criminal procedure. No other official documentation or investigative study of a criminal prosecution, to my knowledge, has dissected and analyzed as carefully and thoroughly the sordid and clandestine actions of a team of prosecutors who zealously wanted to win a criminal conviction at all costs. In examining this Report, one gets the feeling that as the investigation and prosecution of Senator Stevens unfolded and the prosecution's theory of guilt unraveled, the prosecutors became indifferent to the defendant's guilt or innocence. They just …

The Proposed Fairness In Disclosure Of Evidence Act Of 2012: More Cons Than Pros With Proposed Disclosure Requirements In Federal Criminal Cases, Jacquelyn Smith

Mercer Law Review

The proposed Fairness in Disclosure of Evidence Act of 2012 (the Act) is a proposal of uniform standards for disclosing evidence in federal criminal cases that was introduced on March 15, 2012 by Senator Lisa Murkowski of Alaska.' The Act's stated purpose is: "To require the attorney for the Government to disclose favorable information to the defendant in criminal prosecutions brought by the United States, and for

Faa V. Cooper: Bombarding The Privacy Act With The "Canon Of Sovereign Immunity", S. Jacob Carroll

Mercer Law Review

Privacy is a word we hear frequently in today's technologically advanced society. From Google Maps documenting every street in the nation to smartphones sharing locations automatically, privacy concerns abound. In fact, a recent Consumer Reports study found that over seventy percent of respondents said they were very concerned about the sharing of their personal information.' Nevertheless, these worries seem to have fallen on deaf ears as displayed by the United States Supreme Court's recent decision, Federal Aviation Administration v. Cooper. The Court in Cooper ruled that although sharing confidential records without a citizen's permission violated the Privacy Act of …

Williams V. Illinois: Confronting Experts, Science, And The Constitution, Natasha Crawford

Mercer Law Review

DNA evidence has revolutionized forensic science, making it the "single greatest advance in the search for truth.., since the advent of cross-examination." In Williams v. Illinois, the United States Supreme Court affirmed the Illinois Supreme Court's holding that there was no Confrontation Clause violation where experts based their testimony on another analyst's DNA report that was not admitted into evidence. The Court held an expert may assume the truth of certain facts-such as a DNA profile contained in a forensic report-to offer testimony based on those facts without testifying to the truth of the matter asserted. Until Williams, the …

Prosecutorial Disclosure Violations: Punishment Vs. Treatment, Kevin C. Mcmunigal

Mercer Law Review

Recent scholarship on prosecutorial disclosure violations proposes preventing violations through understanding and remedying the causes of violations, such as cognitive error. Scholars who adopt this view-what I call here the "treatment perspective"-often call for greater transparency and cooperation from prosecutors. A frequently unacknowledged tension exists between such a treatment perspective and a more traditional perspective-what I call here the "punishment perspective"-that seeks to deter disclosure violations through greater use of sanctions such as professional discipline.

The tension arises because increasing the certainty and severity of sanctions, as the punishment perspective urges, creates a powerful disincentive for individual prosecutors and prosecutor …

Barras V. Bb&T;: Charting A Clear Path To Apply Concepcion Through A Quagmire Of Divergent Approaches, Jacob Johnson

Mercer Law Review

A recent series of Supreme Court opinions, climaxing in the landmark case AT&T Mobility LLC v. Concepcion, has undermined the validity of applying unconscionability to arbitration agreements and generated divergent opinions in lower courts. The saving clause of the Federal Arbitration Act of 1927, 9 U.S.C. § 2 (FAA saving clause), states that "an agreement in writing to submit to arbitration ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist ... for the revocation of any contract." Until Concepcion, unconscionability was an established ground for revoking arbitration agreements under the FAA saving clause. In …

Dear Lawyer: If You Decide It's Not Economical To Represent Me, You Can Fire Me As Your Contingent Fee Client, But I Agree I Will Still Owe You A Fee., David Hricik

Mercer Law Review

Contingent fees are a relatively recent development in American law. Once banned through common law doctrines, contingent fees have become a tool that allowed delivery of legal services to those who would otherwise be unable to front attorney fees in a case.

No doubt in part because of the historic prohibition against contingent fees, and also because clients in the typical personal injury case in which they were used were not sophisticated consumers of legal services, courts, legislatures, and bar associations have since the outset heavily regulated their use? Yet, the regulation has not been Draconian. Instead, courts have balanced …

Narrative Pluralism And Doctrinal Incoherence In Hosanna-Tabor, Frederick Mark Gedicks

Mercer Law Review

The federal laws prohibiting employment discrimination are among the most important statutes ever enacted. They constitute the most significant federal commitment to eradication of the unjustified discrimination in the economic sector that has persisted since Reconstruction. The laws nevertheless did not address one significant issue: whether and how anti-discrimination norms should apply to ministers and other religious leaders employed by churches and other religious congregations.

The laws are not wholly silent, to be sure. They allow religious groups to discriminate in favor of members of their own religion when they hire leaders, thus avoiding (what we might hope are) hypothetical …

Administering Mayo To Patents In Medicine And Biotechnology: Appropriate Dosage Or Risk Of Toxic Side Effects?, Lauren Miller

Mercer Law Review

In Mayo Collaborative Services v. Prometheus Laboratories, Inc., the United States Supreme Court considered whether it would uphold patents on the "bounty" arising from laws of nature, specifically, diagnostic tests based on natural laws that determined the efficacy and toxicity of certain thiopurine drugs. In a unanimous ruling, the Court invalidated the patents, which were held by respondent Prometheus Laboratories, Inc. (Prometheus). The Court ultimately concluded that the processes for which Prometheus claimed patents did not add "significantly more" to the underlying laws of nature, and thus did not warrant patent protection. The Mayo decision is likely to have …

What We Can Learn About The Art Of Persuasion From Candidate Abraham Lincoln: A Rhetorical Analysis Of The Three Speeches That Propelled Lincoln Into The Presidency, Michael W. Loudenslager

Mercer Law Review

Abraham Lincoln is renowned as an impressive orator and writer. Historians have long studied his life and writings, some dedicating their whole careers to this task. However, few commentators have focused upon how studying the persuasive techniques utilized by Lincoln in his speeches can help lawyers to improve their own persuasive writing and speaking. Lincoln was an experienced litigator, and over the course of his legal career, he tried a voluminous number of cases, was involved in several appeals before the United States Supreme Court, and argued numerous times before the Illinois Supreme Court. These experiences helped Lincoln to cultivate …

Liberating The Library: Fair Use Mostly Upheld For University E-Reserves In Cambridge University Press V. Becker, Jennifer Findley

Mercer Law Review

Libraries and universities across the country had Georgia on their minds as they waited in anticipation for over a year for the outcome of a case. before the United States District Court for the Northern District of Georgia. On May 11, 2012, in Cambridge University Press v. Becker, Judge Orinda Evans answered a question of vital importance to librarians and university officials ever since the passage of the Copyright Act of 1976: does copyright infringement occur if a nonprofit institution makes copies for the classroom for a nonprofit educational purpose? In a 350-page opinion, the court answered with a …

Supplemental Jurisdiction Over Permissive Counterclaims And Set Offs: A Misconception, Douglas D. Mcfarland

Mercer Law Review

In the years prior to 1990, courts extended federal jurisdiction over joined claims and parties in an orderly system. Pendent jurisdiction allowed a plaintiff to join a state law theory of recovery to a federal question theory in the complaint when both arose from a "common nucleus of operative fact."Ancillary jurisdiction allowed a defendant to join a state law claim to a federal claim in a civil action when both arose from the same "transaction or occurrence." Since a compulsory counterclaim arose from the same "transaction or occurrence" and a permissive counterclaim did not, courts had no difficulty in holding …

The Supreme Court's Interpretation Of The Fair Labor Standards Act's Anti-Retaliation Provision In Kasten V. Saint- Gobain Performance Plastics Corporation: Putting Policy Over Plain Language?, Lawrence D. Rosenthal

Mercer Law Review

Similar to statutes such as Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA), all of which contain anti-retaliation provisions, the Fair Labor Standards Act (FLSA), which protects employees with respect to wages and hours, also contains such provision. Unfortunately, not all of these provisions are identical, which has led courts to interpret them differently, granting more protection under some provisions and less protection under others. ...

This Article will examine the FLSA's anti-retaliation provision, and it will focus on whether its language covers …