Law Commons^™

Georgia Goes Superfund: A Look At The New Georgia Hazardous Site Response Act, Robert D. Mowrey

Mercer Law Review

The enactment in 1980 of the Federal Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") is commonly attributed to the uproar surrounding the evacuation of the Love Canal neighborhood in Niagara Falls, New York. The discovery of thousands of buried drums containing hazardous waste on a Douglas County, Georgia horse farm known as Basket Creek might be considered Georgia's Love Canal, not because of any particular environmental similarities to the Niagara Falls site, but because of the similarities in legislative impact. Just as the publicity surrounding Love Canal gave sudden rise to CERCLA, Basket Creek provided the primary impetus to …

Appeals, Interlocutory And Discretionary Applications, And Post-Judgment Motions In The Georgia Courts: The Current Practice And The Need For Reform Legislation, Edward C. Brewer Iii

Mercer Law Review

The old saying, "appellate judges spend all of their time looking for error, while trial judges spend all of theirs seeking the truth" has no justice to it, however accurate its literal description of the litigation process.' It is correct, however, that before the search for truth can begin at the appellate level, the supreme court or court of appeals must look for any error concerning the timeliness of the appeal. The practicing attorney, therefore, must know whether an order or judgment is appealable; and if so, when, where, and how should it be appealed?

The Appellate Practice Act of …

Business Associations, Paul A. Quirós, Lynn Scott Magruder

Mercer Law Review

This Article surveys noteworthy cases that the Georgia Court of Appeals, the Georgia Supreme Court, the United States district courts in Georgia, and the Eleventh Circuit Court of Appeals decided during the survey period. This Article also reviews important acts of the Georgia General Assembly concerning corporation, partnership, securities, and banking law.

Commercial Law, James C. Marshall

Mercer Law Review

Adoption of the Georgia versions of Article 4A and revised Article 8 of the Uniform Commercial Code ("U.C.C.") were the most significant developments in Georgia commercial law during the survey period. These changes became effective on July 1, 1992, long after the 1977 corresponding revisions of the Official Text of Article 8 sponsored by the Permanent Editorial Board for the U.C.C., but only shortly after the 1989 adoption of Article 4A as part of the Official Text. Article 4A is primarily concerned with wholesale wire transfers and should interest only a limited number of attorneys, and will not be discussed …

Construction Law, Brian J. Morrissey, Matthew W. Wallace

Mercer Law Review

Nowhere is the downturn in the economy more pronounced than in the construction industry. Contractors and subcontractors are going out of business with increasing frequency. When a party to a construction project defaults on its obligations, everyone else involved in the project is affected. Material suppliers may have been left unpaid, the bank must examine its potential liability, the surety must determine its exposure, and above all else, the work.must be completed. The cases and legislation during this survey period reflect this aspect of the construction industry.

The most significant event during the survey period was the enactment of new …

Criminal Law And Procedure, John O. Cole

Mercer Law Review

The Georgia appellate courts wrote opinions in over 500 cases during the year of the survey period, most of which were in the court of appeals. The volumes in question in this survey are positively bloated with criminal appeals. Reading through them is a depressing experience for two reasons. First, something seems amiss in a system in which so many attorneys, judges, law clerks, other officials, printers, and trees participate in an appellate process that for the most part changes nothing and has no effect on the litigants. Second, while some of the appeals are meritless to the point of …

Domestic Relations, Barry B. Mcgough, Andrea G. Alpern

Mercer Law Review

The Georgia Supreme Court has decided that a medical school education, a medical license, and contingent fee contracts are not marital property subject to equitable division. The court also declared that a judgment modifying alimony is effective no earlier than the date of the judgment and that an award of joint legal custody does not preclude an award of child support. This Article is divided into three sections. Section I covers cases dealing with child support and visitation; Section II covers cases dealing with settlement agreements, alimony, and equitable division; and Section III deals with contempt.

Insurance, Maximilian A. Pock

Mercer Law Review

A few prefatory and quite impressionistic observations seem warranted. The annual stream of substantive "insurance" cases, and cases that have an "insurance" integument, continues unabated. Georgia has definitely joined the ranks of "tastemaker" states that have a decided influence on the evolution of insurance law, as is evidenced by the frequent appearance of Georgia decisions in our leading law school casebooks.

The new user-friendly "easy reading" policies are surfacing in ever increasing numbers in our appellate jurisprudence. Whatever their intrinsic merits, these policies seem to absorb more judge-time because they do not, as yet, travel with the baggage of decades …

Legal Ethics, Roy M. Sobelson

Mercer Law Review

One of the traditional hallmarks of the American legal profession has been its virtual freedom from regulation. If there is any theme evident in recent developments in the legal ethics field, it is that this freedom is under increasing attack from clients, courts, the bar, and the legislature. The year 1992 was no exception, with a number of challenges made to the authority of individual lawyers and the profession itself. The Supreme Court of Georgia rejected one lawyer's challenge to mandatory court appointments and another's freedom to contract with a client for unlimited authority to settle cases.

The supreme court …

Local Government Law, R. Perry Sentell Jr.

Mercer Law Review

In a year defined by global realignment, juristic unions that were are no more. As flags fell from legal fortresses previously deemed impregnable, precepts formerly unthinkable coalesced into startling staples of litigational performance. In sharp contrast to this panorama of pandemonium, the banner of local government law never dipped; indeed, its proud and uninterrupted summitry gave classic illustration to the diplomatic art of staying the course. Its judicial decisions marked the domains of boundary conundrums, and its statutes sought settlement of analytical quandaries. In cold war's wake, law's universe hailed one clear winner: the law of local government.

Torts, Cynthia Trimboli Adams, Charles R. Adams Iii

Mercer Law Review

One hundred years ago, on a stultifyingly hot summer morning, Andrew Borden, a wealthy, eccentric miser, and his second wife, Abby, were brutally hacked to death in their tiny home in Fall River, Massachusetts.' The peaceful community was shattered by this gruesome event and by the sensational murder trial of Mr. Borden's younger daughter, Elizabeth Andrew Borden. Following her unexpected acquittal, the increasingly reclusive Miss Borden lived on in Fall River, enjoying her inherited wealth, but always a social outcast, taunted by the children chanting just beyond her garden wall:

Lizzie Borden took an ax, Gave her mother forty whacks. …

Trial Practice And Procedure, David A. Forehand Jr., Ken M. Nimmons

Mercer Law Review

The majority of a trial lawyer's work is completed before the jury is placed in the box. The extent of trial preparation is the only means by which one* can arguably predict success. The authors of this Article hope that the reader will view the law of trial practice and procedure as modern day weaponry in the war to preserve justice. To paraphrase Mark Twain, it is a worthy thing to fight one's own fight; it is another sight finer to fight for another man's.

Wills, Trusts, And Administration Of Estates, James C. Rehberg

Mercer Law Review

This survey period has been interesting primarily because fiduciary law seemed to have paused for a breather. Immediately preceding this survey period, the General Assembly enacted the first truly comprehensive trust code in Georgia's history.' After the adoption of this code, with some relatively minor revisions, a time of study and evaluation of the new code, rather than litigation and legislative proposals, seems only natural. The few new statutes concerning fiduciary law will be covered after a discussion of a smaller number than usual of appellate court decisions in this area.

Workers' Compensation, H. Michael Bagley, Daniel C. Kniffen, John C. Blackmon Jr.

Mercer Law Review

The year 1992 brought the most comprehensive workers' compensation reform legislation in two decades. Dramatic changes impact the amount and duration of temporary total disability benefits, the definition of change of condition, vocational rehabilitation services in noncatastrophic cases, and the return of subrogation by employers against third party tortfeasors, as well as many other changes in the workers' compensation system, as detailed below.

Evidence, Marc T. Treadwell

Mercer Law Review

In five previous Georgia and Eleventh Circuit evidence survey articles, the author extolled the virtues of the proposed Georgia Rules of Evidence.' These rules roughly tracked the Federal Rules of Evidence and would replace Georgia's existing evidence code which is, in reality, not a code at all but rather a jumble of disjointed statutes found in several different titles of the Official Code of Georgia Annotated and countless court decisions. The proposed rules were first introduced in the General Assembly in 1989 and were approved by the Senate in 1990 and 1991 but have never been reported out of the …

Real Property, Robert L. Foreman Jr., T. Daniel Brannan, Stephen M. Lamastra

Mercer Law Review

Perhaps because of the recession's adverse effect on real estate activity in Georgia, there have been fewer real property cases decided during the survey period than in recent years. However, there were several significant legislative enactments during the year. From decisions affecting the priority of lienholders to increased environmental legislation to several significant cases defining the obligations on a lender in a foreclosure sale, there have been a number of important developments in the past year of which real estate practitioners must be aware.

United States V. Elgersma: The Burden Of Proof In Criminal Forfeiture Proceedings Under 21 U.S.C. § 853, James D. Tolliver

Mercer Law Review

In United States v. Elgersma, the Eleventh Circuit Court of Appeals decided the issue of what burden of proof applies to a criminal forfeiture proceeding under section 853 of the Comprehensive Crime Control Act of 19842 ("section 853"). After examining the legislative history of section

853 and case law- from its own and other circuits, the court held that criminal forfeiture is a criminal charge requiring the government to prove the guilt of the accused beyond a reasonable doubt. A majority of the court rejected Judge Anderson's concurring opinion in which he argued that criminal forfeiture is an element …

The Eleventh Circuit Court Of Appeals—The First Ten Years, John C. Godbold

Mercer Law Review

A court is many components. It is a highly structured and formalized institution. It is judges and staff and the internal relationships between them.

A court has history and traditions. It has accomplishments and sometimes disappointments. The court referees, decides, and guides. At its best it performs those tasks successfully and engenders confidence and respect in its work. When it does these things it imparts stability to the world around it.

We look at some of these components of the Eleventh Circuit after its first decade. This is not an in-depth examination of decisions of the Eleventh Circuit, which are …

Administrative Law, J. Michael Davis

Mercer Law Review

The Eleventh Circuit's 1991 administrative law decisions ran the full gamut of administrative issues and included decisions relating to both state and federal administrative agencies. While the majority of the decisions dealt with straightforward application of accepted principles of administrative law, several decisions included complex fact patterns and the application of both federal and state administrative procedures. The resulting decisions were balanced in terms of their treatment of the agencies and parties appearing before those agencies.

Antitrust, Carl W. Mullis Iii

Mercer Law Review

In 1991, the Eleventh Circuit ruled on eight full-blown federal antitrust decisions. Although the courts below found for defendants in each of these cases, the Eleventh Circuit found primarily for plaintiffs in three of the cases, for defendants in four of the cases, and for both plaintiffs and defendants in one case. Several of the cases are significant in that they either explore new areas in the antitrust law or have the potential for nationwide influence. Most of the cases simply build on previous holdings of the Eleventh Circuit and are well reasoned. One or two cases, however, contain some …

Appellate Practice And Procedure, Kathryn L. Allen, William M. Droze

Mercer Law Review

This survey Article tracks the 1991 developments in appellate practice and procedure for the United States Court of Appeals for the Eleventh Circuit.

• Jurisdiction
• Standard of Review
• Waiver of Right to Appellate Consideration and Harmless Error
• Miscellaneous Issues: Authority of the Court of Appeals

Bankruptcy, W. Homer Drake Jr., James W. Dilz

Mercer Law Review

During 1991, the United States Court of Appeals for the Eleventh Circuit decided eighteen cases arising under or related to the Bankruptcy Code. These cases can be classified under the general headings of: Jurisdiction, preferences, claims against' the estate, discharge and dischargeability, substantive consolidation, and attorney fees. This Article is a survey of each of the decisions rendered by the Eleventh Circuit in 1991.

Constitutional Criminal Law, Peggy Natale, Anthony J. Natale

Mercer Law Review

Last year, the Eleventh Circuit examined some interesting constitutional issues that affect defendants in criminal cases. What follows are the most significant of those constitutional issue cases, and an additional criminal case of first impression to the Eleventh Circuit Court of Appeals. The authors have made no effort to provide an exhaustive digest of all the court's opinions for the 1991 year.

• First Amendment
• Fourth Amendment
• Fifth Amendment
• Sixth Amendment
• Case of First Impression

Constitutional Law—Civil, Albert Sidney Johnson, Susan Cole Mullis

Mercer Law Review

During the 1991 survey period, the United States Court of Appeals for the Eleventh Circuit continued to struggle with the application of the qualified immunity defense in civil rights actions. Although the court failed to resolve the intracircuit conflict on this issue, the court's opinions did solidify its various approaches to application of the doctrine.

On substantive issues, the court was asked to clarify the constitutionality of governmental action on the controversial issue of AIDS, in both the public employment and custodial contexts. In four cases involving minority set aside and affirmative action programs, the court reinforced standing requirements to …

Employment Discrimination, John F. Dickinson, F. Damon Kitchen

Mercer Law Review

Two trends in the area of employment discrimination law continued during the 1991 survey period. First, there was a continuation of an overall decrease in the number of cases decided. Second, there was a continuation of the trend toward an increased number of age discrimination claims. The overall decline in the number of cases will most likely change dramatically as a result of passage of the Civil Rights Act of 1991. Nevertheless, both the United States Court of Appeals for the Eleventh Circuit and the United States Supreme Court handed down a number of important decisions addressing a variety of …

Evidence, Marc T. Treadwell

Mercer Law Review

For the past several years, the State Bar of Georgia has lobbied vigorously for the adoption of a new Georgia Evidence Code based upon the Federal Rules of Evidence. Few would dispute that the existing Georgia Evidence Code, which really is not a code at all but rather an amorphous amalgam of disjointed statutes and thousands of judicial decisions, is in need of revision. Apparently, however, there is considerable dispute regarding exactly what changes should be made.

The proposed Georgia Rules of Evidence is the product of an intensive study by the State Bar of the deficiencies of the existing …

Federal Taxation, Steven C. Evans

Mercer Law Review

The federal tax cases decided by the Eleventh Circuit during 1991 reversed one trend and continued another trend of 1990. The Eleventh Circuit decided a number of procedural tax cases during 1991. This trend is similar to the number of procedural cases decided in years prior to 1990, but is substantially more than the number of procedural cases decided by the Eleventh Circuit in 1990. Cases decided under the Employment Retirement Income Security Act of 1974 ("ERISA"), as amended, continued to constitute the majority of the substantive tax cases decided by the Eleventh Circuit during 1991.

Labor Law, David P. Phippen, Regine N. Zuber

Mercer Law Review

This Article examines significant decisions issued during 1991 by the United States Court of Appeals for the Eleventh Circuit in the areas of traditional labor law and employee benefits. More specifically, the cases addressed include noteworthy decisions under the National Labor Relations Act ("NLRA"), the Labor-Management Relations Act ("LMRA"), the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), the Fair Labor Standards Act of 1938 ("FLSA"), and the Employee Retirement Income Security Act of 1974 ("ERISA").

Trial Practice And Procedure, Benton J. Mathis Jr., Leigh C. Lawson

Mercer Law Review

This Article surveys the 1991 decisions of the Eleventh Circuit Court of Appeals that made a significant impact upon the area of trial practice and procedure. One of the most important developments in this area of law occurred in the case Wright v. Preferred Research, Inc. In Wright the Eleventh Circuit examined closely Federal Rule of Civil Procedure 58 and, in a case of first impression, held that when a district court amends a judgment, Rule 58 did not require that a separate document, setting out the terms of the remitted judgment, be entered before the time for the appeal …

Johnson V. Home State Bank: Seven Plus Thirteen Can Equal Twenty, Lance Jones

Mercer Law Review

In Johnson v. Home State Bank (In re Johnson), the United States Supreme Court approved -the property-saving strategy of filing under Chapter 72 of the Bankruptcy Code, immediately followed by a filing under Chapter 13, the so-called "Chapter 20." The Court held that a mortgage lien that survived the discharge of the debtor's personal obligations in Chapter 7 is a "claim" for purposes of 11 U.S.C. § 101(5), and thus may be included by the debtor in a subsequent Chapter 13 plan.

Chapter 20 procedures typically follow a similar pattern. A debtor defaults on loan payments, including a …