Digital Commons Network^™

Stemming The Federal Tort Fountain: Why Federal Courts Should Maintain Implied Certification Limitations On Qui Tam Suits Against Nonclaimant Defendants, Dennis O. Vann Jr.

Georgia Law Review

Qui tam suits in the health-care industry increasingly
target pharmaceutical and medical-device manufacturers
rather than the medical providers who directly make
claims to federal health-insurance programs. These suits
commonly argue that the manufacturer induced the
provider to falsely certify compliance with federal and
state antifraud laws, such as the Anti-Kickback Statute.
This Note shows that suits based on such "implied
certification"of adherence to laws should not be permitted
under the Federal False Claims Act unless the
non submitting defendant is first convicted of providing a
kickback. First, this Note analyzes recent amendments to
the Anti-Kickback Statute in the Affordable Care …

Table Of Contents

Georgia Law Review

No abstract provided.

A Reliance Approach To Precedent, Hillel Y. Levin

Georgia Law Review

Why and when should courts presumptively defer to their
own past precedents? The doctrine of precedent lies at the
core of American jurisprudence and legal practice, but the
source of its normative force remains unclear.
Consequently, its application is confused and contested.
In this Article, I argue that precedent matters because
and to the extent that it generates reliance interests on the
part of the public. Although I am not the first to suggest
that reliance is the foundational justification for deference
to precedent, this Article represents the first sustained effort
to defend the reliance approach in deontological terms and …

State Power To Define Jurisdiction, Samuel P. Jordan, Christopher K. Bader

Georgia Law Review

States should have broader authority to decline
jurisdiction over federal claims. The normative
considerations supporting this doctrine of "reverse
abstention" have been developed in previous work. But
what of the Constitution? The traditional reading,
reflected in existing precedent, asserts that the Supremacy
Clause, Article III, and perhaps Article I operate together
to create an inflexible obligation for state courts to hear
federal claims. This reading is misguided. The
Supremacy Clause contains no jurisdictional obligation of
its own force, but only gives supreme effect to other validly
enacted federal laws. And no other clause provides the
authority to impose such an …

Jurisdictional Sequencing, Alan M. Trammell

Georgia Law Review

The Supreme Court has begun to grapple with the
problems presented by the doctrine of jurisdictional
sequencing-the decision of certain issues, and even the
dismissal of cases, before a federal court has verified its
subject matter jurisdiction. Recent jurisprudence has
created confusion as to what, if anything, a federal court
may do before it verifies subject matter jurisdiction.
Moreover, scholars and courts have struggled to discern
an underlying rationale for jurisdictional sequencing, and
no theory has been able to explain the case law fully or
offer a satisfying normative defense of the doctrine.

This Article develops a theory of jurisdictional …

Interagency Litigation And Article Iii, Joseph W. Mead

Georgia Law Review

Agencies of the United States often find themselves on
opposite sides of the "v. " in disputes ranging from alleged
unfair labor practices in federal agencies, to competing
statutory interpretations, to run-of-the mill squabbles over
money. Yet Article III's case-or-controversy requirement

includes--at a minimum-adverse parties and standing.
Courts have disagreed with one another over the extent to
which litigation between the sovereign and itself meets
Article III standards. Despite the volume of scholarship
on Article III standing, relatively little attention has been
paid to Article III's requirement of adverse parties in
general, or the justiciability of intrabranch litigation in
particular. …

The Problem With The Bureau Of Land Management's Delegation Of Wildlife Management In Wilderness, Lindsay S. Jones

Georgia Law Review

Congress passed the Wilderness Act of 1964 "to secure for
the American people of present and future generations the
benefits of an enduring resource of wilderness." When it
passed the Act, Congress preserved over 9 million acres of
federal lands; and since then, the National Wilderness
Preservation System has been expanded by more than 100
million acres. The Act requires the federal agencies to
manage the wilderness areas to preserve their wilderness
character and to leave the lands unimpaired for future
generations.
Wildlife is an integral part of what makes wilderness
worth preserving. Despite the vital role wildlife plays in …

Taking A Toll On The Equities: Governing The Effect Of The Plra's Exhaustion Requirement On State Statutes Of Limitations, Keri E. Mccrary

Georgia Law Review

If prisoners are required by federal law to exhaust
institutional remedies before they may file suit in federal
court, should a prisoner with a legitimate claim suffer
dismissal by the federal court if the statute of limitations
lapses during the time the prisoner spends exhausting
administrative remedies? The Prisoner Litigation Reform
Act (PLRA) of 1996 offers no guidance. Federal courts
may choose to apply equitable tolling to a prisoner's claim
should this predicament arise, saving it from dismissal
based on tardiness, but nothing requires the court to do so.
The PLRA's enigmatic exhaustion requirement has
engendered much litigation, and the …

Enforceability Of Choice-Of-Law Clauses In The Context Of Misclassification Litigation: Bridging The Gap Between Worker And Employer, Koleen S. Sullivan

Georgia Law Review

Picture this: a California resident working in California
files suit against the employer for allegedly misclassifying
the worker as an independent contractor instead of an
employee. The employer is headquartered in Georgia and
the worker has signed an employment contract including a
choice-of-law clause selecting Georgia law. Does Georgia
law apply? If the language of the clause is broad enough
to include a misclassification claim, perhaps. What if the
application of Georgia law violates California public
policy? The answer to this is almost assuredly a
resounding "no." But should Georgia law apply?
This Note argues that it should, under the …

Safe Haven No Longer: The Role Of Georgia Courts And Private Probation Companies In Sustaining A De Facto Debtors' Prison System, Sarah D. Bellacicco

Georgia Law Review

Georgia was specifically established as a colony for debtors-a haven where they could be safe from imprisonment. It is a haven no longer. Georgia courts are regularly imprisoning people for failing to pay debts, often through probation revocation of probationers who have failed to pay a fine or fee imposed as a condition of probation. Some of these probationers are on probation solely because they could not pay a fine on the day of sentencing, a practice which greatly increases the amount they owe due to the additional probation fees imposed. In Bearden v. Georgia, the Supreme Court held that …

Killers Shouldn't Inherit From Their Victims-Or Should They?, Carla Spivack

Georgia Law Review

This Article questions, for the first time, the equitable and policy basis of Slayer Rules, the rules that bar killers from inheriting from those they kill. It shows that killings that involve inheritance usually occur as a result of domestic abuse or severe mental illness, and argues that, because the legal and social service systems offer little help to those trapped in abusive relationships or those disabled by mental illness, it is not justifiable for those systems to deprive the killer of an inheritance when he or she takes the only means of escape available.

The Great Bankrupt Divide: Amending The Rights Of Trademark Licensees Under The Code, Sumner R. Pugh Iv

Georgia Law Review

The federal circuit courts are split over whether a licensee has the right to continue using a licensed trademark after the license is rejected in bankruptcy. In Sunbeam Products, Inc. v. Chicago American Manufacturing, LLC, the Seventh Circuit held that rejection does not abrogate the licensee's right to use the licensed trademark, a decision that expressly rejects the Fourth Circuit's contrary holding that rejection ends a licensee's right to use the licensed mark. While this Note argues that the Fourth Circuit interpreted and applied the Bankruptcy Code accurately in Lubrizol Enterprises v. Richmond Metal Finishers, it finds that the effect …

Protect Yourself: Why The Eleventh Circuit's Approach To Sanctions For Protective Order Violations Fails Litigants, Adam J. Fitzsimmons

Georgia Law Review

Litigants commonly struggle to balance the need to comply with discovery requests and the desire to protect valuable trade secrets. Protective orders to help strike that balance. Questions arise, however, when one of the parties violates that protective order and discloses the opponent's confidential information. Chiefly, what remedies are available for a party whose invaluable intellectual property has been disclosed? At least one circuit has held the most common sanction, payment of attorney's fees, is unavailable for a violation of a protective order. Generally, Federal Rule of Civil Procedure 37(b)(2) governs sanctions for violations of discovery orders, but the text …

Consumer Engagement In Travel-Related Social Media, Xu Li

Electronic Theses and Dissertations

The term of "consumer engagement" is extensively used in the digital era. It is believed that engaged consumers play an important role in products/services referral and recommendation, new product/service development and experience/value co-creation. Although the notion of consumer engagement sounds compelling, it is not fully developed in theory. Different interpretations coexist, resulting in confusion and misuse of the concept. This study attempts to define consumer engagement and develop a conceptual framework of consumer engagement, addressing antecedents of consumer engagement in online context. Moreover, some situational and social media usage-related factors are incorporated into the framework. A set of propositions are …

Guest Satisfaction Analysis Of A Casual Dining Restaurant: A Comparison Of Tourist Vs Non-Tourist Satisfaction Scores., Jessica Wickey

Electronic Theses and Dissertations

Purpose - The purpose of this study is to analyze guest/customer satisfaction surveys of a casual dining restaurant in the Orlando, Florida area; specifically, to analyze if there is a difference between satisfaction levels of tourist and non-tourist guests. The guest satisfaction surveys were analyzed on eight dimensions of satisfaction; Pace of Service, Service Overall, Server Communication & Accuracy, Food (Taste & Quality), Food Preparation, Bar (Beer, Wine, & Cocktail), Gratefulness, and Atmosphere in whole (including atmosphere and cleanliness).The eight dimensions were evaluated in the GPS (guest pulse survey) based on a Net Promoter Score, or NPS® system, and were …

An Exploratory Study Of Customer Vulnerability: A Cross-Segment Approach, Taryn Aiello

Electronic Theses and Dissertations

The purpose of this study is to explore the concept of customer vulnerability across varying service industries. While the concept of customer vulnerability has been debated in business, marketing, sociology, and psychology scholarly literature, there has been little research conducted that specifically investigates consumers’ perceptions of vulnerability during the service exchange. Specific to this research, customer vulnerability is defined as experiences in which consumers participate in a service exchange with a firm during a time of individual or shared medical, physical, emotional, or spiritual necessity, whether the vulnerability is experienced during the course of the transaction or whether consumers arrive …

"These Illegals": Personhood, Profit, And The Political Economy Of Punishment In Federal-Local Immigration Enforcement Partnerships, Daniel L. Stageman

Publications and Research

Contemporary popular discourse linking immigration and immigrants to crime has proved extremely difficult to dislodge, despite clear evidence that immigrant labor provides broad and direct economic benefits to a significant proportion of the US population. The criminalizing discourse directed at immigrants may in part be functional, by leading to restrictionist immigration policies and practices and subjecting immigrants to intensified economic exploitation.

This study examines the economic context in which state and local governments adopt restrictionist immigration policies and practices, and implicates the political economy of punishment (Rusche and Kirchheimer, Punishment and social structure. New York: Columbia University Press, 1939) …

Retention And Invention In Bhojpuri Diasporic Music Culture: Perspectives From The Caribbean, India, And Fiji, Peter L. Manuel

Publications and Research

No abstract provided.

Making Higher Education More Affordable, One Course Reading At A Time: Academic Libraries As Key Advocates For Open Access Textbooks And Educational Resources, Karen Okamoto

Publications and Research

Open access textbooks (OATs) and educational resources (OERs) are being lauded as a viable alternative to costly print textbooks. Some academic libraries are joining the OER movement by creating guides to open repositories. Others are promoting OATs and OERs, reviewing them, and even helping to create them. This article analyzes how academic libraries are currently engaged in open access textbook and OER initiatives. By drawing on examples of library initiatives across the United States, the author illustrates how libraries are facilitating the adoption and implementation of these affordable resources.

What Is Philosophy Of Criminal Law?, Youngjae Lee

Faculty Scholarship

No abstract provided.

A Fiduciary Theory Of Judging, Ethan J. Leib, David L. Ponet, Michael Serota

Faculty Scholarship

For centuries, legal theorists and political philosophers have unsuccessfully sought a unified theory of judging able to account for the diverse, and oftentimes conflicting, responsibilities judges possess. This paper reveals how the law governing fiduciary relationships sheds new light on this age-old pursuit, and therefore, on the very nature of the judicial office itself. The paper first explores the routinely overlooked, yet deeply embedded historical provenance of our judges-as-fiduciaries framework in American political thought and in the framing of the U.S. Constitution. It then explains why a fiduciary theory of judging offers important insights into what it means to be …

Trends In The Social [Ir]Responsibility Of American Multinational Corporations: Increased Power, Diminished Accountability, Cynthia A. Williams, John M. Conley

Faculty Publications

No abstract provided.

Beyond Our Hearts: The Ecology Of Couple Relationships, Holning S. Lau

Faculty Publications

No abstract provided.

The Lautsi Decision And The American Establishment Clause Experience: A Response To Professor Weiler, William P. Marshall

Faculty Publications

No abstract provided.

The Sixth Amendment Rights To Fairness: The Touchstones Of Effectiveness And Pragmatism, Robert P. Mosteller

Faculty Publications

No abstract provided.

Judicial Review For Enemy Fighters: The Court’S Fateful Turn In Ex Parte Quirin, The Nazi Saboteur Case, Andrew Kent

Faculty Scholarship

The emerging conventional wisdom in the legal academy is that individual rights under the U.S. Constitution should be extended to noncitizens outside the United States. This claim - called globalism in my article - has been advanced with increasing vigor in recent years, most notably in response to legal positions taken by the Bush administration during the war on terror. Against a Global Constitution challenges the textual and historical grounds advanced to support the globalist conventional wisdom and demonstrates that they have remarkably little support. At the same time, the article adduces textual and historical evidence that noncitizens were among …

The Regulation Of Race In Science, Kimani Paul-Emile

Faculty Scholarship

The overwhelming majority of biological scientists agree that there is no such thing as race among modern humans. Yet, scientists regularly deploy race in their studies, and federal laws and regulations currently mandate the use of racial categories in biomedical research. Legal commentators have tried to make sense of this paradox primarily by looking to equal protection strict scrutiny analysis. However, the colorblind approach that attends this doctrine — which many regard as synonymous with invalidation — does not offer a particularly useful way to think about the use of race in research. It offers no way to address how …

Shields, Swords, And Fulfilling The Exclusionary Rule's Deterrent Function, James L. Kainen

Faculty Scholarship

When the exclusionary rule prevents the prosecution from using evidence necessary to bring a case to trial, the rule deters illegality while raising no issue about how it might interfere with usual factfinding processes. However, when a case proceeds to trial although a court has suppressed some prosecution evidence, courts need to decide the extent to which the defendant may benefit from the absence of the proof without opening the door to its admission. The exclusion of any relevant evidence raises similar questions, and courts often say the exclusionary rule is a shield from suppressed evidence, but not a sword …

State Speech And Political Liberalism, Abner S. Greene

Faculty Scholarship

Jim Fleming and Linda McClain have written an impressive book on the responsible exercise of rights, which flows from prior writing by each.Their title, "Ordered Liberty," is a bit of a misnomer, however. When one thinks of that phrase, one thinks of the ways in which we balance liberty against order, i.e., against security, police power, controlling the excesses of liberty. Responsibility in the exercise of rights is an aspect of how rights are orderly, but the major hard cases involving rights are hard because significant claims of harm are in play. Think of much of constitutional criminal procedure, free …

Google And Search-Engine Market Power, Mark R. Patterson

Faculty Scholarship

A significant and growing body of commentary considers whether possible manipulation of search results by Google could give rise to antitrust liability. Surprisingly, though, little serious attention has been paid to whether Google has market power. Those who favor antitrust scrutiny of Google generally cite its large market share, from which they infer or assume its dominance. Those who are skeptical of competition law’s role in regulating search, on the other hand, usually cite Google’s 'competition is only a click away' mantra to suggest that Google’s market position is precarious. In fact, the issue of Google’s power is more complicated …