Law Commons^™

Evidence, Marc T. Treadwell

Mercer Law Review

During the survey year, according to a Westlaw search, the United States Court of Appeals for the Eleventh Circuit rendered 2252 opinions. However, only 375 of these opinions were "published," which is consistent with the Eleventh Circuit's recent trend of sharply limiting the number of published decisions. The court's view on this issue is illustrated by Internal Operating Procedure ("IOP") 5 in Eleventh Circuit Rule 36-2:

The unlimited proliferation of published opinions is undesirable because it tends to impair the development of the cohesive body of law. To meet this serious problem it is declared to be the basic policy …

Admiralty, Colin A. Mcrae, Jessica L. Mcclellan

Mercer Law Review

The United States Supreme Court and Eleventh Circuit Court of Appeals were busy in 2007 with admiralty cases and other matters of importance to maritime practitioners. The Supreme Court considered two punitive damages cases with maritime implications and reviewed a case under the Federal Employers' Liability Act with potential bearing on Jones Act jurisprudence. The Supreme Court also clarified an important procedural issue concerning the application of the forum non conveniens doctrine, which often arises in maritime cases. The Eleventh Circuit continued its trend of tackling important maritime questions by issuing opinions on (1) the interplay between the Seaman's Wage …

Appellate Practice And Procedure, Robert G. Boliek Jr.

Mercer Law Review

If there is a single watchword for the Eleventh Circuit's decisions in 2007 in the arena of appellate practice and procedure, it is "jurisdiction." The requirement of a "final decision" received particular attention, as did the requirements for perfection of certain interlocutory appeals. The Eleventh Circuit also recognized an additional limitation on its jurisdiction over remand orders in removal cases. Accordingly, the first section of this Article will discuss cases that addressed questions of the Eleventh Circuit's appellate jurisdiction, followed by a section describing two notable cases that addressed the preservation and presentation of error. The final section discusses an …

Environmental Law, Travis M. Trimble

Mercer Law Review

In 2007 the Eleventh Circuit interpreted the United States Supreme Court's decision in Rapanos v. United States, regarding the federal government's jurisdiction over waters under the Clean Water Act ("CWA"), and held that in order for federal jurisdiction to exist over a water that is not navigable in fact, the water must have a "significant nexus" with a water that is navigable in fact. Also under the CWA, the court partially reversed a granting of summary judgment to the Florida Department of Environmental Protection, holding that the department had improperly excluded some types of evidence in approving Florida's 2002 …

Intellectual Property, Laurence P. Colton, Nigamnarayan Acharya, Todd Williams, Dana T. Hustins

Mercer Law Review

This Article surveys caselaw developments in the area of intellectual property, including patents, copyrights, and trademarks, relevant to Georgia during the period from January 1, 2007 to December 31, 2007. Intellectual property law comprises several discrete yet overlapping areas of law. The four primary areas of intellectual property law are patent law, trademark law, copyright law, and trade secret law. Because patent law and copyright law are provided for in the United States Constitution, these cases are based in federal law and are litigated in federal courts. Trademark law and trade secret law have both federal3 and state aspects, and …

Bankruptcy, James D. Walker Jr., Amber Nickell

Mercer Law Review

In 2007 the world of bankruptcy law lacked much of the excitement seen in 2005 and 2006. During the previous two years a variety of novel issues and intra-circuit conflicts arose as courts began interpreting the 2005 amendments to the Bankruptcy Code. The pace settled down in 2007 as courts began work that consisted more of refinement than innovation. They tackled the scope of sovereign immunity, the automatic stay, undue hardship for student loan discharge, and the hanging paragraph in § 1325(a). These and other recent developments in Eleventh Circuit bankruptcy law are addressed in this Article.

Federal Taxation, Michael H. Plowgian, Svetoslav S. Minkov, Mark S. Davis

Mercer Law Review

The courts in the Eleventh Circuit heard a number of relatively prominent tax related cases in 2007. In United States v. Mount Sinai Medical Center of Florida, Inc., the Eleventh Circuit held that medical residents are potentially eligible for the student exemption from social security taxes, with their eligibility being determined on a case-by-case basis. In Estate of Jelke v. Commissioner, the Eleventh Circuit vacated the United States Tax Court's valuation methodology in computing, for estate tax purposes, the net asset value of a holding company in which the decedent held a minority interest. The Eleventh Circuit held …

Doubting Thomasville's Ability-Grouping Program: Holton V. City Of Thomasville School District, William Benjamin Bryant

Mercer Law Review

The summer of 2007 was an active season for education cases in the United States federal court system. While the Supreme Court heard several cases related to freedom of speech and school race issues, the United States Court of Appeals for the Eleventh Circuit heard its own case, Holton v. City of Thomasville School District, in which the court examined the City of Thomasville School District's ("the School District") ability-grouping program. The court held that the School District's program was neither intentionally discriminatory nor the result of prior de jure segregation by the district. The Eleventh Circuit's decision extends …

Labor And Employment, W. Christopher Arbery, Valerie N. Njiiri, Valerie H. Barney

Mercer Law Review

The trial and appellate courts within the Eleventh Circuit handed down a number of important opinions affecting labor and employment law during the survey period from January 1, 2007 to December 31, 2007. These included significant decisions defining key terms under the Sarbanes-Oxley Act ("SOX") and there were notable decisions involving the Fair Labor Standards Act ("FLSA") and the Family and Medical Leave Act ("FMLA").

Trial Practice And Procedure, John O'Shea Sullivan, Ashby L. Kent

Mercer Law Review

The 2007 survey period yielded several noteworthy decisions by the United States Court of Appeals for the Eleventh Circuit relating to federal trial practice and procedure, many of which concerned issues of first impression. This Article analyzes recent developments in the Eleventh Circuit, including significant rulings in the areas of class actions, civil procedure, subject matter jurisdiction, statutory interpretation, and other issues of interest to trial practitioners.

Is Worship A Unique Subject Or A Way Of Approaching Many Different Subjects? Two Recent Decisions That Attempt To Answer This Question Set The Second And Ninth Circuits On A Course Toward State Entanglement With Religion, John Tyler

Mercer Law Review

Does exclusion of worship services from a limited public forum constitute discrimination on the basis of viewpoint or subject matter? Is worship a unique subject matter or a way of expressing views on many different subjects? And if worship is a unique subject matter, what expressive activities fall within that category? In other words, what is the legal definition of worship?

These are the questions that the United States Supreme Court's seminal decision in Good News Club v. Milford Central School left unanswered. Good News Club was a case from New York that involved a constitutional challenge to the local …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

During the 2007 survey period, the United States Court of Appeals for the Eleventh Circuit continued its recent trend of issuing many opinions-most unpublished-regarding employment discrimination. The court rendered eight published decisions concerning Title VII of the Civil Rights Act of 1964 ("Title VLI") and fifteen published opinions generally concerning employment discrimination. Unpublished opinions in this area continued to flourish, however, with at least forty-nine unpublished decisions regarding Title VII and fifty-seven unpublished employment discrimination opinions overall. Clearly, the case that received the most press coverage during the survey period was the United States Supreme Court's decision in Ledbetter v. …

Standing Room Only: Federal Taxpayers Denied Standing To Challenge President's Faith-Based Programs In Hein V. Freedom From Religion Foundation, Inc., Patricia Mary Quinlan

Mercer Law Review

During the 2006-2007 Term, the United States Supreme Court addressed the issue of whether federal taxpayers have standing to challenge the constitutionality of executive expenditures that allegedly violate the First Amendment to the United States Constitution. In Hein v. Freedom from Religion Foundation, Inc., the plaintiffs, asserting standing based on their status as federal taxpayers, objected to the use of congressional appropriations to fund a faith-based program created by President George W. Bush as a violation of the Establishment Clause. Although no single analysis commanded five votes, a majority of the Court agreed to dismiss the case for lack …

Transcript—Afternoon Session, Roy T. Stuckey, Alice Thomas, Daisy Hurst Floyd

Mercer Law Review

Reflections on Legal Education ..... Roy T. Stucky 859

"Are We Committing Malpractice?" Toward a Code of Professional Ethics for Legal Educators ..... Alice Thomas 866

Forming Professionals: A Journey of Identify and Purpose ..... Daisy Hurst Floyd 882

Afternoon Question & Answer Period 892

Legal Ethics, Narrative, And Professional Identity: The Story Of David Spaulding, Timothy W. Floyd, John Gallagher

Mercer Law Review

Roger Cramton has called Spaulding v. Zimmerman "one of the great gems of law teaching." The case is extensively discussed in books and articles dealing with legal ethics and is prominently featured in professional responsibility casebooks and courses. According to Professor Cramton, "Spaulding teaches important lessons about the law and ethics of lawyering." These include "the unwillingness of lawyers, judges and the organized profession to talk openly and seriously about the situations in which threats of harm to third persons justify a breach of one of the lawyer's most sacred duties, that of confidentiality to client" and "the reality, …

Evaluating The Skills Curriculum: Challenges And Opportunities For Law Schools, Harriet N. Katz

Mercer Law Review

Law schools have compelling reasons to begin thoroughly reviewing their skills curriculum. Three new publications emphasize that preparing students for practice as competent and ethical lawyers is the central mission of legal education and scrutinize methods for achieving that goal. A new ABA Standard for Accreditation (the "Standard" or "Standard 302"), revised in 2005 to mandate skills education for every law student, is now being applied at law school reaccreditation reviews.

In addition, Educating Lawyers: Preparation for the Profession of Law (the "Carnegie Report"), a report written by the Carnegie Foundation for the Advancement of Teaching, and Best Practices for …

"Insane In The Membrane, Insane In The Brain":1 The Case Of Panetti V. Quarterman, Michael Eric Hooper

Mercer Law Review

In Panetti v. Quarterman, the United States Supreme Court held that the incompetence standard used by the United States Court of Appeals for the Fifth Circuit was overly restrictive and failed to afford proper Eighth Amendment protection to a prisoner convicted of murder. While Ford v. Wainwright established that a prisoner is competent for execution if he or she knows of his or her impending execution and the reason for it, the Court expanded the competency standard in Panetti by holding that a prisoner's awareness of the rationale for an execution is not the same as a rational understanding …

New Car Emissions Feared To Increase Global Temperatures, State Standing: Massachusetts V. Epa, Nick Bisher

Mercer Law Review

As debate over global warming continues to intensify, the United States Supreme Court has taken steps to begin addressing the many interests asserted by private and public parties. In Massachusetts v. EPA, the Court issued a landmark opinion that gives states the power to assert their rights under the Clean Air Act in federal court. The Court also ruled that the Environmental Protection Agency ("EPA") acted arbitrarily and capriciously in denying a petition to promulgate a rule establishing limits on new motor vehicle emissions of carbon dioxide and other greenhouse gases ("GHGs") under the Clean Air Act. This decision …

Who's On First?: Why Philip Morris Usa V. Williams Left Juries Confused About Whose Injuries Can Be Considered When Determining Punitive Damages, Steven Moulds

Mercer Law Review

For the third time in eleven years, the United States Supreme Court imposed constitutional limits on punitive damage awards. In Philip Morris USA v. Williams, the Court, in a 5-4 decision, held that punitive damages cannot be used to punish a defendant for injuries that the defendant infficted upon nonparties to the case. However, the Court also held that injuries to nonparties can be considered when determining the reprehensibility of the defendant's conduct under the "Gore guideposts." Nevertheless, this decision is important for trial lawyers for what the Court did not hold. Once again, the Court passed on the …

Signed, Your Coach: Restricting Speech In Athletic Recruiting In Tennessee Secondary School Athletic Ass'n V. Brentwood Academy, Brian Craddock

Mercer Law Review

In Tennessee Secondary School Athletic Ass'n v. Brentwood Academy ("Brentwood I/,), the United States Supreme Court unanimously held that an athletic association may enforce its anti-undue-influence recruiting policy, restricting the speech of its voluntary member schools, to avoid undue influence on young student athletes during the recruitment process. In reaching its holding, the Court extended two lines of First Amendment jurisprudence. First, the Court extended the application of Ohralik v. Ohio State Bar Ass'n to a context other than attorney-client solicitation for the first time. In doing so, the Court held that the possibility of undue influence in athletic recruiting …

Transcript—Morning Session, William D. Underwood, Judith Wenger, William M. Sullivan

Mercer Law Review

Introduction 821

Reflections on Legal Education ..... William D. Underwood 824

Perspectives on Innovation, Possibilities for Change ..... Judith Wegner 829

Legal Education: The Academy, the Practice, and the Public ..... William M. Sullivan 841

Morning Question & Answer Period 849

Preventing And Reducing Costs And Burdens Associated With E-Discovery: The 2006 Amendments To The Federal Rules Of Civil Procedure, Jessica Debono

Mercer Law Review

On December 1, 2006, amendments to the Federal Rules of Civil Procedure (the "Rules") regarding the discovery of electronically stored information went into effect. This form of discovery is referred to as ediscovery. The 2006 amendments have significant effect on the obligations and responsibilities of parties, their lawyers, and the courts when dealing with discovery of electronically stored information. Specifically, the 2006 amendments affect how companies maintain, preserve, and produce electronically stored information. First, electronically stored information is now included in permissible discovery. Second, parties are required to "meet and confer" about the discovery of electronically stored information at the …

Copyright Infringement Litigation And The Exercise Of Personal Jurisdiction Within Due Process Limits: Judicial Application Of Purposeful Availment, Purposeful Direction, Or Purposeful Effects Requirements To Finding That A Plaintiff Has Established A Defendant's Minimum Contacts Within The Forum State, Daniel E. Wanat

Mercer Law Review

An action for an infringement of a copyright secured under the United States Copyright Act may raise issues of copyright ownership, a defendant's access to a plaintiff's work, and substantial similarities between a plaintiff's work and a defendant's work. When raised, the issues bear on the merits of a plaintiff's copyright claim against a defendant.

Suppose, however, that a copyright owner brought suit in the forum state against a nonresident defendant. The defendant's first defense may be based on the state's lack of personal jurisdiction. This defense implicates issues under the forum state's law and the Due Process Clause of …

The Democratic Aspect Of The Establishment Clause: A Refutation Of The Argument That The Clause Serves To Protect Religious Or Nonreligious Minorities, Patrick M. Garry

Mercer Law Review

A survey of Establishment Clause doctrines and commentary reveals that the Clause is often interpreted as a minority rights provision, protecting religious and nonreligious minorities from being exposed in certain ways to society's dominant religions. This Article argues against such an interpretation. It portrays the Establishment Clause as a structural provision of the Constitution, concerned with democratic processes and limited government, much like the doctrines of federalism and separation of powers. This Article also asserts that democratic values and concern for majority rule constitute core values of the Establishment Clause. Whereas the Free Exercise Clause protects minority rights, the Establishment …

Legal Writing: Did Harvard Get It Right?, Laurel Currie Oates

Mercer Law Review

For most law students, there is a moment when, in frustration or exhaustion, they throw up their hands and scream, "There must be a better way." While many of the cases in the casebooks are interesting, learning the law one case at a time seems, at best, inefficient, and at worst, just plain stupid. Wouldn't it be much easier, and better, if law schools used the same pedagogy that is used in many other disciplines: reading assignments, lectures, and exams that test whether students have learned the information set out in those textbooks and lectures?

When students question law school …

Vigilant Or Vigilante? Procedure And Rationale For Immunity In Defense Of Habitation And Defense Of Property Under The Official Code Of Georgia Annotated §§ 16-3-23, -24, -24.1, And -24.2, Robert Christian Rutledge

Mercer Law Review

Georgia law provides statutory immunity for a person charged with an assault that arose in defense of property including habitation and real property. Such a defense would apply to the scenario above. The procedure for utilizing those immunities, however, is not clear in the applicable statutes, Official Code of Georgia Annotated ("O.C.G.A.") sections 16-3-23, -24, -24.1, and -24.2 (the "Immunity Statutes"), or in recent cases applying those statutes. This Article proposes a procedure for using those immunities as efficiently as possible. While seeking an efficient procedure, this Article also attempts to ascertain the rationale and policies behind the Immunity Statutes. …

School Bullies—They Aren't Just Students: Examining School Interrogations And The Miranda Warning, Elizabeth A. Brandenburg

Mercer Law Review

In the first few weeks of working at the Macon Circuit Public Defender's Office in Macon, Georgia, I represented a juvenile client who was charged with possession of a weapon on school grounds. She was a fourteen-year-old public high school student accused of bringing a knife to school. She did not mean to bring the knife to school, having that morning switched purses, and when she realized the knife was in her bag, she did not know what to do. She did not get caught with the knife in a fight, nor were there ever allegations that she was involved …

Leegin Creative Leather Products, Inc. V. Psks, Inc.: Loosening The Belt On Price Fixing, Crystal J. Clark

Mercer Law Review

In Leegin Creative Leather Products, Inc. v. PSKS, Inc., the United States Supreme Court overturned almost a century of antitrust precedent by overruling Dr. Miles Medical Co. v. John D. Park & Sons Co. and holding that vertical minimum resale price maintenance agreements were no longer per se illegal but would now be governed by the rule of reason.

Pruning The Antitrust Tree: Credit Suisse Securities (Usa) Llc V. Billing And The Immunization Of The Securities Industry From Antitrust Liability, John P. Lucas

Mercer Law Review

In Credit Suisse Securities (USA) LLC v. Billing, the United States Supreme Court, speaking through Justice Breyer, held that the current securities law regime impliedly precludes the application of state and federal antitrust laws to underwriters' and institutional investors' conduct during initial public offerings of securities. Justice Stevens concurred in the judgment only and issued his own opinion. Justice Thomas delivered the lone dissent. Justice Kennedy did not participate in the decision, likely because his son is a managing director of petitioner Credit Suisse Securities. Overturning the United States Court of Appeals for the Second Circuit, the Court continued …