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Table Of Contents

Georgia Law Review

No abstract provided.

Giving Unconscionability More Muscle: Attorney's Fees As A Remedy For Contractual Overreaching, Stephen E. Friedman

Georgia Law Review

This Article seeks to broaden the conversation about unconscionability. While most of the discussion has focused on the appropriate standard for determining unconscionability, this Article focuses on the appropriate remedy to be imposed when unconscionability is found. The current remedy for unconscionability is nonenforcement or limited enforcement of unconscionable contracts or contract terms. This remedy is inadequate and seriously undermines unconscionability's effectiveness as a tool for policing against contractual overreaching. The Article proposes that courts be given discretion to award attorney's fees to consumers who successfully establish the unconscionability of a standard form contract. Such a remedy would enable unconscionability …

Putting The Community Back Into The "Community Benefit" Standard, Jessica Berg

Georgia Law Review

Disputes about tax exemption for hospitals are occurring all over the country. Local tax authorities have revoked tax- exempt status for some hospitals. State governments are considering whether to require minimum amounts of charity care in exchange for tax exemption. Congress is debating whether hospitals should remain a part of the nonprofit sector at all. At the same time, uninsured individuals are suing hospitals for unfair billing and collection practices. Creative accounting and expansive definitions of "free" care have led to a variety of non ideal practices by hospitals in order to balance their bottom line, while maintaining tax-exempt status. …

The Parity Cure: Solving Unequal Treatment Of Mental Illness Health Insurance Through Federal Legislation, Christopher J. Churchill

Georgia Law Review

American health care reform has drawn both impassioned critics and vociferous supporters. Although underinsured and uninsured Americans face a dire plight, the mentally ill-even those with private health insurance-confront even greater hurdles. While drawing substantially less outcry, many insurance plans place limits on mental illness coverage that do not apply to physical illnesses. Though Congress recently passed the Mental Health Parity and Addiction Equity Act of 2008 (the MHPAEA), it did not solve the problem. The MHPAEA eliminates some disparity-such as higher deductibles for mental health treatment-but still allows insurers to impose unequal annual coverage limits. Furthermore,the MHPAEA shares the …

The Federal Rules Of Civil Procedure And Legal Realism As A Jurisprudence Of Law Reform, David Marcus

Georgia Law Review

Since the 1930s, legal realism has weathered claims that its adherents had no use for legal rules and lacked a positive program of law reform. This Article uses the Federal Rules of Civil Procedure, the major procedural reform of the twentieth century, to illuminate more accurately the treatment of rules in realism as well as its constructive potential. It draws upon the published and unpublished writings of Charles Clark, the primary author of the Federal Rules and a leading realist, to describe a realist procedural jurisprudence and to explain why the Federal Rules neatly illustrate this jurisprudence in practice. Part …

The Privacy Implications Of Deep Packet Inspection Technology: Why The Next Wave In Online Advertising Shouldn't Rock The Self-Regulatory Boat, Robert T. G. Collins

Georgia Law Review

With the explosive growth in Internet use by consumers throughout the 1990s, advertisers have quickly embraced the Web as a fertile ground for attracting customers. This increase in usage has been tracked by online advertisers' progressive efforts to achieve ad relevance by discovering consumer preferences and serving ads accordingly. An attendant concern is the extent to which the data collection that fuels online advertising respects the consumer's interest in data privacy. To date, American lawmakers have allowed existing subject-matter-based privacy statutes, in combination with industry self-regulation and Federal Trade Commission oversight, to manage privacy concerns. In 2008, however, the introduction …

Dare To Compare: Determining What "Other Available Methods" Can Be Considered Under Federal Rule 23(B)(3)'S Superiority Requirement, Andrea J. Parker

Georgia Law Review

When certifying a class action lawsuit, Federal Rule 23(b)(3) requires a federal district court judge to determine that a class action lawsuit is superior to "other available methods "of handling the dispute. A disagreement has emerged among the district courts regarding what constitutes an available method under the Rule. Several courts have found that private refund programs or settlement agreements instituted by a defendant can count as available methods under the superiority requirement, while other courts have found that they do not. This Note evaluates the question of whether private refund programs or settlement agreements should be compared to class …

Implications Of Discovering Unreported Income, Improper Deductions, And Hidden Assets Upon A Taxpayer's Death, Jay A. Soled

Georgia Law Review

Death commonly opens windows into taxpayers' lives and sheds light on items that were previously kept hidden or tightly guarded. This light sometimes reveals that the decedent failed to report income, took improper deductions, or held undisclosed assets-factors that have historically contributed to the size of the "tax gap," i.e., the difference between what taxpayers owe in taxes and what they actually pay. This Article explores the implications of these postmortem discoveries for executors, who must administer the decedent's estate; estate beneficiaries,who are recipients of the estate's assets; and tax practitioners,who are called upon to lend technical assistance. Beyond describing …

"I'M Not Gay, M'Kay?": Should Falsely Calling Someone A Homosexual Be Defamatory?, Haven Ward

Georgia Law Review

This Article argues a statement misidentifying a personas homosexual should be deemed not defamatory as a matter of law. Whether a statement is defamatory changes as social mores and policies evolve, such that a statement deemed defamatory in the past may not be defamatory now. For example, historically, courts deemed statements misidentifying a person as homosexual defamatory per se. As society's opinion of homosexuality began to improve, courts instead required proof of special damages for a plaintiff to maintain a defamation action for such statements. No American court, however, has yet held that such a statement is not defamatory as …

When And How (If At All) Does Law Constrain Official Action?, Frederick Schauer

Georgia Law Review

Debates about the obligation to obey the law have been around for literally thousands of years, but the empirical side has received much less attention. Moreover, most of the existing empirical work has focused on citizens and not officials, and consequently we know little about the extent to which law qua law motivates official action. This Article seeks to encourage empirical inquiry into the particular question of whether officials obey the law as law, independent of the content of the law and independent of the possibility of sanctions for non-compliance. It offers the hypothesis that although there is much talk …

Phase Six Pandemic: A Call To Re-Evaluate Federal Quarantine Authority Before The Next Catastrophic Outbreak, John T. Clarkson

Georgia Law Review

At some point in the future, the United States will confront a deadly pandemic. One potential response to blunt the impact of an outbreak may be the use of a large-scale quarantine. The current statutory framework governing federal quarantine authority, however, is outdated and in need of revision. Any reform must acknowledge that the federal government may be best positioned to respond to national health threats and must simultaneously create limits on federal power to ensure a proper balance of power remains between the states and the federal government. This Note proposes that Congress focus its reform efforts on adding …

A Bridge Too Far? Directive 1344.10 And The Military's Inroads On Core Political Speech In Campaign Media, Andrew A. Pinson

Georgia Law Review

In early 2008, the Department of Defense issued Directive 1344.10. Paragraph4.3.2.1 of the Directive prohibits non- active-duty military members who are nominees or candidates for political office from using images of themselves in uniform as the "primary graphic representation"in any campaign media. With the stroke of a pen, the Department of Defense effectively barred a powerful symbol of many a candidate's character, experience, and knowledge from use while on the campaign trail. This new regulation sets the stage for an epic clash between two entrenched doctrines: the strong First Amendment protection the Supreme Court has long afforded political campaign expression …

It Takes A Village: Considering The Other Interests At Stake When Extending Inheritance Rights To Posthumously Conceived Children, Morgan K. Wood

Georgia Law Review

The advent of assisted reproductive technologies has brought into existence a new class of children: those not conceived until after the death of one biological parent, or posthumously conceived children. Such a child may be born after a parent dies from a terminal illness or is killed in military action. Is the child legally recognized as the child of the deceased parent,and may the child inherit from that parent's estate? Not surprisingly, the law has been slow to evolve to deal with this relatively new concept. Only twelve states to date have enacted statutes specifically addressing posthumously conceived children, so …

Table Of Contents

Georgia Law Review

No abstract provided.

Foreword, Lonnie T. Brown, Jr.

Georgia Law Review

In all types of law practice, attorneys are routinely called upon to make difficult ethical judgment calls. The ethical line-drawing that often takes place in the context of controversial or high-profile cases, however, can be uniquely challenging. Indeed, the very decision to undertake a representation of this nature is fraught with ethical and pragmatic concerns uncommon to typical legal matters. Usually, in assessing whether or not to accept representation of a client, lawyers must address such issues as competency, conflicts of interest, and fee structure. The character of these preliminary inquiries changes rather dramatically, though, when the prospective client is …

"How Can You Represent That Man?": Ethics, The Rule Of Law, And Defending The Indefensible, Ramsey Clark

Georgia Law Review

As we meet to discuss legal ethics, we should consider whether the subject as it is usually presented today adequately encompasses the ideal role of the lawyer, beyond zealous advocacy on behalf of clients. For the most part, legal ethics today, through codes of professional conduct, deals with prohibitions intended to protect the public from misconduct by lawyers, oftentimes criminal. Thou shalt not steal, conceal, lie, bear false witness, suborn perjury, or breach client trust. But is this all? Doesn't ethics promise more than this? Ethics-like morality, which has richer connotations in our culture-properly deals not only with what is …

A Prosecutor's Non-Negotiables: Integrity And Independence, David C. Iglesias

Georgia Law Review

I raised my right hand and I took an oath of office in a brand new federal courthouse that would eventually become . .. the Pete V. Domenici Courthouse, named after our senior senator who retired after thirty-six years of service and who, as the story goes, I will tell you more about. I didn't really fully realize the substance of what I was swearing to until years later when it became abundantly clear that the oath that I took was to the Constitution. It wasn't to my party, it wasn't to my senator, it wasn't to a specific ideology, …

Prosecuting Political Defendants, Anthony S. Barkow, Beth George

Georgia Law Review

Prosecutors are obligated to enforce the law without bias or prejudice. Prosecutors will face cases, however, where a prosecution has political overtones due to the substance of the underlying crime or the identity of the defendant. Maintaining public confidence in the impartiality of such prosecutions is vital to protecting the public's trust in the criminal justice system. This Article explores three recent federal cases where the defendant's identity added a political element to the prosecution. It then examines how the Department of Justice regulates prosecutors' release of information to the public, including its charging policy and its interactions with the …

Prosecutorial Sound Bites: When Do They Cross The Line?, Laurie L. Levenson

Georgia Law Review

Even good prosecutors can cross the line. This is particularly true when it comes to media sound bites in high-profile cases. The Supreme Court held in Gentile v. Nevada State Bar, 501 U.S. 1030 (1991), that while lawyers have the First Amendment right to make comments to the press, they do not have the right to make comments that have a "substantial likelihood of materially prejudicing an adjudicative proceeding." This broad standard gives little guidance to prosecutors as they try to frame their public remarks. A much better guide is found in 28 C.F.R. § 50.2. These federal regulations at …

Should A Statement Of Interest Matter?: Judging Executive Branch Foreign Policy Concerns, Catherine H. Curlet

Georgia Law Review

Since the enactment of the Constitution, scholars have fiercely debated the question of the appropriate balance between the branches of the federal government in matters of foreign affairs. Recently, the Supreme Court set forth some guidelines for striking this balance between the Executive and the Judicial Branches in litigation implicating foreign affairs,yet the guidelines leave much of this debate unresolved. A cross-section of recent appellate court decisions illustrates how lower courts have filled in these gaps when assessing how much deference to give an Executive's Statement of Interest filed in cases concerning foreign affairs. This Note extracts from these cases …

Taking From Trailblazers: Learning From Those Who Have Gone Before When Approving Biosimilars, John A. Little, Jr.

Georgia Law Review

The creation of an approval pathway for biosimilar biologicalproducts holds tremendous promise for increased competition in the biopharmaceutical market and financial savings to the health care system. Yet, safely achieving these promised benefits depends heavily on the Food and Drug Administration's ability to evaluate and compare these complicated molecules to previously approved products. Because biosimilars are different than generic drugs, the FDA's current practice of considering only its prior finding of safety and efficacy of a reference product is ill-suited for approval of biosimilars. Unfortunately, the new pathway included in recently enacted health care reform legislation ignores this distinction and …

Sanctioning Hard Bargaining: A Critique Of State Offer-Of- Settlement Rules, Philip M. Thompson

Georgia Law Review

In the United States' health-care-conscious climate of the past few years, tort reform has been a popular topic for state and federal legislators. Two reform devices that most states have adopted are offer-of-judgment and offer-of-settlement rules. Modeled after Federal Rule of Civil Procedure 68, these rules enable parties to issue offers either entitling or subjecting the parties to penalties ranging from the less impressive costs of litigation to severe awards of attorney's fees and interest on the judgment. These rules were enacted to curb litigation and to reduce the strain such litigation places on state budgets. Some states set out …

Table Of Contents

Georgia Law Review

No abstract provided.

Limiting Article Iii Standing To "Accidental" Plaintiffs: Lessons From Environmental And Animal Law Cases, Robert J. Pushaw Jr.

Georgia Law Review

According to the Supreme Court, Article III's extension
of "judicialPower" to "Cases" and "Controversies"limits
standing to plaintiffs who can demonstrate an
individualized "injury in fact" that was caused by the
defendant and that is judicially redressable. Article III's
text and history, however, do not mention "injury,"
"causation,"or "redressability."
Furthermore, these standards are malleable and have
been applied to achieve ideological goals, especially in
cases involving environmental and animal-welfare laws.
Most notably, the Court has recognized an "injury in fact"
to one's aesthetic enjoyment of nature, but determining
such an injury is arbitrarybecause "aesthetics"is a matter
of personal taste. Judges have …

Defense Against Outrage And The Perils Of Parasitic Torts, Geoffrey C. Rapp

Georgia Law Review

Two prominent narratives in tort law scholarship
address the increasing recognition of claims for loss of
emotional tranquility and the expanding privilege to use
force in defense of self and others. This Article explores a
puzzle in tort law that challenges these traditional
accounts. Can force be used to defend against intentional
extreme or outrageous conduct threatening a person with
severe emotional distress? The answer in the case law and
articulated doctrine appears to be "no." The law permits
the use of force to protect dignitary interests, in the case of
offensive battery and assault, but seems to deny the …

Congressional End-Run: The Ignored Constraint On Judicial Review, Luke M. Milligan

Georgia Law Review

This Article identifies an untended connection between
the research of legal academics and political scientists. It
explains how recent developments in constitutional theory,
when read in good light, expose a gap in the judicial
politics literature on Supreme Court decision making. The
gap is the "congressional end-run."
End-runs occur when Congress mitigates the policy cost
of adverse judicial review through neither formal limits on
the Court's autonomy nor substitution of its constitutional

interpretationfor that of the Court, but through a different
decision which cannot, as a practical if not legal matter,
be invalidated by the Court. End-runs come in several …

State Of Emergency: Why Georgia's Standard Of Care In Emergency Rooms Is Harmful To Your Health, Jason R. Graves

Georgia Law Review

Patients injured by medical negligence have historically
been able to recover for the injuries they sustained. In
2005, however, the Georgia General Assembly passed
Georgia Senate Bill 3, which gave virtual immunity to
emergency room doctors and those practicing in obstetrics
wards. The Bill requires a showing of gross negligence by
clear and convincing evidence to prevail on a medical
malpractice claim against those protected by the statute.
The law prevents injured patients who cannot meet this
standard from recovering any damages, even
compensation for medical bills arising from the negligent
act. The legislature enacted the Bill in an effort …

Waiving Good-Bye To Inconsistency: Factual Basis Challenges To Guilty Pleas In Federal Courts, William T. Stone Jr

Georgia Law Review

Rule 11(b)(3) of the Federal Rules of CriminalProcedure
requires courts to determine that criminal defendants'
guilty pleas have a factual basis. Once a district court
accepts a guilty plea, appellate courts diverge in their
willingness to review challenges to the sufficiency of the
plea's factual basis. Some federal circuits hold that a
factual basis challenge is waived by the guilty plea. Other
jurisdictions will review a defendant's factual basis
challenge on appeal. Despite the lack of clarity on this
point, the Supreme Court has not yet provided guidance
and the federal circuit courts have not offered a great deal
of …

Composition, Authorship, And Ownership In Flamenco, Past And Present, Peter L. Manuel

Publications and Research

No abstract provided.

Front Matter

Animal Law Review

Front Matter includes title page, advisors, and table of contents for Animal Law Review Volume 16, Issue 1.