Digital Commons Network^™

Lawyering Decisions—October 2009 Term, Eileen Kaufman

Scholarly Works

No abstract provided.

Supreme Court Criminal Law Jurisprudence: Fair Trials, Cruel Punishment, And Ethical Lawyering—October 2009 Term, Richard Klein

Scholarly Works

No abstract provided.

Jewish Law From Out Of The Depths: Tragic Choices In The Holocaust, Samuel J. Levine

Scholarly Works

No abstract provided.

An Illusory Right To Appeal: Substantial Constitutional Questions At The New York Court Of Appeals, Meredith R. Miller

Scholarly Works

The jurisdiction of the New York Court of Appeals has long been shrouded in mystery. When the Court dismisses an appeal, it provides a boilerplate, one-sentence decretal entry, which gives the litigants little, if any, meaningful indication of the Court’s reasons for dismissal. In February 2010, however, the world received a rare glimpse into the Court’s jurisdiction when, in Kachalsky v. Cacace, 925 N.E.2d 80 (N.Y. 2010), Judge Robert Smith dissented from the Court’s sua sponte dismissal of the appeal. Judge Smith voted to retain the appeal, arguing that the Court was using the requirement of “substantiality” to invoke discretion …

Alternative Learning Formats In A Land Use Seminar, Michael Lewyn

Scholarly Works

No abstract provided.

Digitizing Deliberation: Normative Concerns For The Use Of Social Media In Deliberative Democracy, Nicole M. Elias

Publications and Research

Deliberative democracy as a form of citizen engagement and social media as a means to achieving greater citizen engagement have both received considerable attention in recent years; however, little attention has been paid to the way deliberative democracy and social media function together. The central aim of this research is to highlight the normative considerations surrounding social media in a deliberative democratic process. To do this, the article uses Iris Marion Young's model of deliberative democracy that is rooted in inclusion, political equality, reasonableness, and publicity. Applying this model's normative values to the use of audience response systems demonstrates that …

Intellectual Property Rights In A Digital World, Patrick C. R Evans

Undergraduate Theses and Senior Projects

No abstract provided.

[Alpha]₁A Adrenergic Receptors Enhance Learning And Memory In Adult Mice, Mariaha Lyons

Undergraduate Theses and Senior Projects

No abstract provided.

Adrenergic Enhancement Of Synaptic Plasticity, Michael Walery

Undergraduate Theses and Senior Projects

No abstract provided.

Rethinking The Commercial Law Treaty, John F. Coyle

Georgia Law Review

In international commercial transactions, it is not
always clear which state's law will apply to govern a
particular contract. Historically, states have sought to
address this problem by means of two types of treaties.
The first aims to solve the problem by bringing about the
substantive unification of commercial law across multiple
jurisdictions;once the law is everywhere the same, then it
no longer matters which state's law applies to govern the
contract. The second aims to solve the problem in part by
empowering the transacting parties to choose the law that
will govern their contract; once these parties know that …

Erisa Subrogation And The Controversy Over Sereboff: Silencing The Critics, The Divided Bench Is A Legitimate Standard, Ashley A. P. Frazier

Georgia Law Review

ERISA protects employees in the administration of
employer-sponsored benefit plans. When a party is injured
by third parties and a health and welfare benefit plan
governed by ERISA pays benefits, conflicts have arisen
between insurers seeking subrogation and individuals
seeking full recovery. Injured parties claim they should
not have to reimburse insurers while insurers deny
responsibility for damage caused by third parties. The
Supreme Court set the standard for plan fiduciary rights
to ERISA subrogation in Sereboff v. Mid Atlantic Medical
Services, Inc. Sereboff held that the plain wording of 29
U.S.C. § 1132(a)(3) means equitable relief available under
the …

Enthusiastic Enforcement, Informal Legislation: The Unruly Expansion Of The Foreign Corrupt Practices Act, Amy D. Westbrook

Georgia Law Review

The Foreign Corrupt Practices Act (FCPA) was enacted
over thirty years ago to prohibit bribery of foreign officials
by U.S. persons. In the last few years, the Department of
Justice (DOJ) and the Securities and Exchange
Commission (SEC) have dramatically expanded the FCPA
through a surge in its enforcement. Responding to
complex developments in law, the global economy, and
agency politics, the DOJ and the SEC have brought ten
times as many cases as in prior years, and assessed
hundreds of millions of dollars in penalties. At the same
time, the substantive reach of the law has been extended
through …

The Panic Defense And Model Rules Common Sense: A Practical Solution For A Twenty-First Century Ethical Dilemma, Teresa M. Garmon

Georgia Law Review

The attorney-client relationshipremains one of the most
highly regarded associations in society and is of
indispensable importance for criminal defendants, but it
is not a relationship that lasts forever. The Model Rules of
Professional Conduct (Model Rules) not only allow
breaking this affiliation, but also sometimes demand it.
Yet, in other circumstances, the Model Rules and judicial
custom may force an attorney to proceed with a
representation-even in the face of fundamental
disagreement with the core defense in a criminal case.
Through the avenue of the gay panic defense, this Note
explores how attorneys can become trapped between their
own …

Table Of Contents

Georgia Law Review

No abstract provided.

Noah's Curse: How Religion Often Conflates Status, Belief, And Conduct To Resist Antidiscrimination Norms, William N. Eskridge Jr.

Georgia Law Review

Today, many devout Christian fundamentalists support
some state discrimination against gay people, on the
ground that full equality for gays would mean fewer
liberties for themselves. In its recent controversy with a
public law school, the Christian Legal Society argued that
it was entitled to state subsidies even though it violated
the school's antidiscrimination policy. The Society said it
excluded only "unrepentant homosexuals"-those gay
persons whose "immoral" conduct and degraded status
were directly linked to what the Society considered an
anti-Christian message.
Professor Eskridge demonstrates that the same clash
between equality for minorities and liberty for Christian
fundamentalists played out …

The Political Economy Of Criminal Procedure Litigation, Anthony O'Rourke

Georgia Law Review

Criminal procedure has undergone several well-
documented shifts in its doctrinal foundations since the
Supreme Court first began to apply the Constitution's
criminal procedure protections to the states. This Article
examines the ways in which the political economy of
criminal litigation-specifically, the material conditions
that determine which litigants are able to raise criminal
procedure claims, and which of those litigants' cases are
appealed to the United States Supreme Court-has
influenced these shifts. It offers a theoretical framework
for understanding how the political economy of criminal
litigation shapes constitutional doctrine, according to
which increases in the number of indigent defense
organizations …

Grossly Disproportional To Whose Offense? Why The (Mis)Application Of Constitutional Jurisprudence On Proceeds Forfeiture Matters, Amanda S. Bersinger

Georgia Law Review

To pass constitutional muster, fines-of which punitive
forfeitures are one type-must not be grossly
disproportional to the gravity of the offense from which
they arise. Currently, the United States Courts of Appeals
exhibit a split in their treatment of forfeiture of proceeds
acquired incident to a criminal enterprise. A majority of
courts to address the issue have held that proceeds
forfeitures are not punitive fines and thus escape
constitutional scrutiny. Other courts, including the
Fourth Circuit in the recent case United States v.
Jalaram, Inc., have concluded that proceeds forfeiture, like

that of instrumentalities of a crime, is punitive and …

Vesting Title In A Murderer: Where Is The Equity In The Georgia Supreme Court's Interpretation Of The Slayer Statute In Levenson?, Mark A. Silver

Georgia Law Review

The recent Georgia Supreme Court ruling in Levenson v.
Word exposes difficult interpretative and equitable
questions posed by Georgia's slayer statute. The case
began after Debra Post inherited her husband's estate but
was then arrested for his murder. She used her husband's
life insuranceproceeds and the real property she acquired
through the murder to pay two law firms to defend her in
the murder trial before pleading guilty.
The court-appointedadministratorof the estate sued the
law firms for conversion for not returning these illegally
and immorally acquired funds. Under the Georgia slayer
statute, a murderer forfeits the right to serve as …

Foreign States Are Foreign States: Why Foreign State-Owned Corporations Are Not Persons Under The Due Process Clause, Frederick W. Vaughan

Georgia Law Review

If foreign states are not "persons"under the Due Process
Clause, do foreign state-owned corporations still enjoy the
same protections as their privately owned counterparts?
This is an important question because state-owned entities
are a prevalent fixture in an increasingly global economy.
Courts confronted with the issue, however, have attempted
to resolve it by resorting to a policy-based analysis. In
doing so, they have distorted fundamental constitutional
principles.
This Note explains this distortion by discussing the
trend among leading courts of not recognizing states as
"persons" under the Due Process Clause and by examining
the meaning of "foreign state" under the …

Table Of Contents

Georgia Law Review

No abstract provided.

From Oglethorpe To The Overthrow Of The Confederacy: Habeas Corpus In Georgia, 1733-1865, Donald E. Wilkes Jr.

Georgia Law Review

This Article provides, for the first time, a comprehensive
account of the writ of habeas corpus in Georgia not

primarily focused on use of the writ as a post conviction
remedy. The Article covers the 132-year period stretching
from 1733, when the Georgia colony was established, to
1865, when the American Civil War came to a close. Part
II of this Article, which examines the writ of habeas corpus
in colonial Georgia, begins by briefly summarizing the
history and development of the writ in England, and then
analyzes the reception and availability in the colony of the
common law writ …

What Mcdonald Means For Unenumerated Rights, A. Christopher Bryant

Georgia Law Review

In June a splintered Supreme Court held in McDonald
v. City of Chicago that the Second Amendment applied to
state and local governments. But the case was about

much more than handguns. It presented the Court with
an unprecedented opportunity to correct its own erroneous
precedent and revive the Fourteenth Amendment's
Privileges or Immunities Clause. The plurality declined
the offer not, as Justice Alito's opinion suggested, out of a
profound respect for stare decisis, but rather because at
least four Justices like the consequences of that ancient
error, especially insofar as unenumerated rights are
concerned. This observation in turn raises …

Extra! Read All About It: Why Notice By Newspaper Publication Fails To Meet Mullane's Desire-To-Inform Standard And How Modern Technology Provides A Viable Alternative, Jennifer L. Case

Georgia Law Review

Decades ago the Supreme Court articulated that due
process requires adopting a means of service that one
would naturally adopt if he actually desired to inform
another. For generations newspaper publication has been
allowed where the party to be notified is not known or
cannot be located. But, given the rapid transformation

of information dissemination over our country's recent
history, are newspapers a method that anyone would use if
they truly wanted to relay information to another person?
This Note examines the shift in how American's receive
news and information in our modern society. It explores
the decline in newspaper …

Imprisoned By Liability: Why Bivens Suits Should Not Be Available Against Employees Of Privately Run Federal Prisons, Isabella R. Edmundson

Georgia Law Review

With the increasing privatization of prisons, a growing
issue is whether individual employees in private federal
prisons are liable through a Bivens suit for violating the
constitutional rights of inmates. Four circuits have
confronted the issue. Three circuits have held that no
Bivens action is available; but recently the Ninth Circuit
has held the contrary.
The Supreme Court's Bivens case law offers mixed
messages as to whether an implied cause of action should
be available in this situation. One view is that, despite an
initial willingness to expand Bivens, the Supreme Court
has consistently moved away from recognizing new Bivens …

Amy And Vicky's Cause: Perils Of The Federal Restitution Framework For Child Pornography Victims, Robert W. Jacques

Georgia Law Review

Child pornography is unique among violent crimes in at
least one aspect: victims are harmed not only from their

initial abuse but also from knowing that people on the
Internet continue to view the images. In recent years, a
split has arisen among federal courts on whether victims
of child pornography are entitled to restitution from non-
production offenders, i.e., offenders that were not involved
in the initial abuse of victims. The controversy has
surrounded 18 U.S.C. § 2259-the mandatory restitution
statute for sex offenses. While some courts find victim
harm not sufficiently traceable to the crimes at issue to …

Ineffective-Assistance-Of-Counsel Blues: Navigating The Muddy Waters Of Georgia Law After 2010 State Supreme Court Decisions, Ryan C. Tuck

Georgia Law Review

The constitutional right to counsel is a guarantee of
effective counsel, but vindicating this right through an
ineffective assistance of counsel challenge (IC) is difficult
for most defendants, especially indigent ones. In Georgia,
the difficulty of arguing a successful IAC claim is
heightened by strange rules for when such claims can be
raised. Georgia long has adhered to an IAC timing
approach that few other jurisdictions still follow and the
Supreme Court has rejected, threatening waiver if
defendants do not argue IAC as early as practicable.
When appellate counsel is new, this opportunity is the
direct appeal. In contrast, most …

Table Of Contents

Georgia Law Review

No abstract provided.

The Judicial Power And The Inferior Federal Courts: Exploring The Constitutional Vesting Thesis, A. Benjamin Spencer

Georgia Law Review

The Third Branch of our federal government has
traditionally been viewed as the least of the three in
terms of the scope of its power and authority. This
view finds validation when one considers the
extensive authority that Congress has been permitted
to exercise over the Federal Judiciary. From the
beginning, Congress has understood itself to possess
the authority to limit the jurisdiction of inferior
federal courts. The Supreme Court has acquiesced to
this understanding of congressional authority
without much thought or explanation.
It may be possible, however, to imagine a more
robust vision of the Judicial Power through closer …

Promulgating Proportionality, William W. Berry Iii

Georgia Law Review

Two lines of cases have dominated the Supreme Court's
Eighth Amendment death penalty jurisprudence: the
Furman-Gregg line of cases emphasizes the need to adopt
rules to eliminate the arbitrariness inherent in unguided
capital sentencing by juries, while the Woodson-Lockett
line of cases emphasizes the opposite concern-the need for
juries to make individualized sentencing determinations-
highlighting the inadequacy of rules.
At first glance, these competing aims create some
internal tension, if not outright conflict. In his
concurrence in Walton v. Arizona, Justice Scalia argued
that this conflict was - irreconcilable: "[t]he latter
requirement [of individualized factual determinations]
quite obviously destroys whatever …

Seen But Not Heard: An Argument For Granting Evidentiary Hearings To Weigh The Credibility Of Recanted Testimony, Michael M. Hill

Georgia Law Review

The case of Troy Davis shows how difficult it is for a
convicted criminal defendant to obtain postconviction
review of witness recantations. Convicted of murder on
the testimony of nine eyewitnesses, Davis spent over a
decade petitioning for judicial review of the recantations of
seven of those witnesses before the U.S. Supreme Court
ordered an evidentiary hearing in 2009. Concurrently, the
DNA revolution continued to prove the innocence of an
increasing number of convicted inmates across the nation,
and the majority of those convictions had relied on
eyewitness testimony. If these scientific advances suggest
that eyewitness identification is not as …