Law Commons^™

Secrets, Secrets Are No Fun: Supreme Court Of Georgia Expands The Possible Remedies For A Confidential Breach Of Fiduciary Relationship And Analyzed Certified Questions Of Law, Olivia M. Sanders

Mercer Law Review

The crux of the Supreme Court of Georgia’s decision in King v. King revolved around one theme: the consequences for a party that fails to disclose information in a confidential and fiduciary relationship. In King, the plaintiff’s difficult circumstances began over three decades earlier when his father died in a plane crash and a wrongful death suit was filed on his behalf. Though the plaintiff became entitled to settlement funds as a result of the wrongful death suit, the plaintiff never received the funds and filed a suit accordingly, alleging that the defendant breached his fiduciary duties and converted the …

Accountability Courts In Georgia: Judges In The State Of Georgia Explain How They Have Been Empowered By Visionary Political And Judicial Leaders To Tackle Crime, Prison Population, Mental Illness, And Drug Dependency Through Service In Accountability Courts, W. James Sizemore Jr.

Mercer Law Review

Georgia leads the way nationally when it comes to promoting and funding the expansion of accountability courts (commonly called drug courts or mental health courts). The fact that the effort to expand such courts in Georgia was spearheaded by Republican Governor Nathan Deal is surprising to some. This article provides a peek behind the curtain at the massive judicial and political effort to make accountability courts an essential part of criminal justice reform in the State of Georgia.

The article begins with a brief look at the history of accountability courts in Georgia, specifically focusing on several Superior Court Judges …

The Case Of The Vanishing Supreme Court Contest: Barrow V. Raffensperger Eliminates The Power Of The People To Elect Their Appellate, Superior, And State Court Judges, Ashley Mallon

Mercer Law Review

Imagine being elected a Georgia Supreme Court Justice. You have spent hundreds of thousands of dollars on your campaign and more than a year of your life running for election, only to have it all come crashing down. You’ve been informed that your win is now legally meaningless and void, even though you were chosen by the people. You are told that it is now an office that the current Governor gets to fill because the predecessor in the office to which you were just elected, intentionally chose to resign two months early. This political loophole and disenfranchisement of voters …

Open Chambers Revisited: Demystifying The Inner Workings And Culture Of The Georgia Court Of Appeals, Stephen Louis A. Dillard

Mercer Law Review

I was sitting in my cluttered but comfortable office, preparing for what would ultimately be my last hearing as a lawyer, when the phone rang. On the other end of the line was Governor Sonny Perdue's executive assistant: "Mr. Dillard, do you have time to speak with the governor?" I did, of course. And less than two weeks after that brief but life-changing conversation with Governor Perdue, I was one of Georgia's two newlyappointed appellate judges (and the seventy-third judge to serve on the court of appeals since 1906).

Over six years have passed now, and during that time a …

Open Chambers: Demystifying The Inner Workings And Culture Of The Georgia Court Of Appeals, Stephen Louis A. Dillard

Mercer Law Review

I vividly remember the day I learned of my appointment to the Georgia Court of Appeals. I was sitting in my cluttered but comfortable office, preparing for what would ultimately be my last hearing as a lawyer, when the phone rang. On the other end of the line was Governor Sonny Perdue's executive assistant: "Mr. Dillard, do you have time to speak with the governor?" I did, of course. And less than two weeks after that brief but life-changing conversation with Governor Perdue, I was one of Georgia's two newly appointed appellate judges (and the seventy-third judge to serve on …

Neuropsychiatry In The Courtroom, Richard L. Elliott

Mercer Law Review

This Symposium, "The Brain Sciences in the Courtroom," will make frequent reference to neuropsychiatry, neuroinaging, and brain science, and assumes a rudimentary understanding of neuroscience. While some readers have considerable experience in these areas, others might benefit from a brief introduction to key concepts in neuroscience, and to their applications in the courtroom from a historical perspective. In providing such an introduction, several points will become clear. For 200 years, lawyers, judges, and expert witnesses have struggled to understand how neuroscience can be helpful in the courtroom, with varying degrees of success. This is, in part, due to the fact …

Appellate Practice And Procedure, K. Todd Butler

Mercer Law Review

This Article reviews cases decided in 2003 by the United States Court of Appeals for the Eleventh Circuit that have the greatest bearing on issues of federal appellate procedure for attorneys practicing in the Eleventh Circuit. Topics reviewed include parties' designation of matters appealed in the Notice of Appeal; parties' actions taken during or prior to trial to preserve issues for appeal; the interlocutory jurisdiction of appellate courts; the lack of appellate jurisdiction resulting from the mootness of issues appealed; and the invited error and judicial estoppel rules.

The Peculiarity Of Per Curiam: In The Georgia Supreme Court, R. Perry Sentell Jr.

Mercer Law Review

On notable occasions, the format of a message acquires a heritage equal in significance to the message itself. Because of its history, familiarity, intrigue, or sheer repetition, an account's style of presentation may serve not only to characterize the account, but also to condition its recipient to a pre-ordained demeanor of expectation. Style and substance are thus comingled, and the medium subsumes the message.

It should come as no surprise that the described phenomenon claims a special affinity to the law and to legal "messages." Much of the information transmitted in law and in legal circles projects history, familiarity, intrigue, …

"Garbage In, Garbage Out": The Litigation Implosion Over The Unconstitutional Organization And Jurisdiction Of The City Court Of Atlanta, Edward C. Brewer Iii

Mercer Law Review

The City Court of Atlanta, the primary traffic court for Atlanta, Georgia, has exercised jurisdiction since 1996 over more than one million traffic violations and, since 1988 and under two statutes, some fifty thousand nontraffic misdemeanors. The City Court's first predecessor, the Traffic Court of Atlanta, adjudicated traffic law violations from 1955 to 1967 and was replaced in 1967 by a second court, also known as the City Court, which existed until 1996. That City Court's jurisdiction was expanded in 1988 to include nontraffic misdemeanors arising from the same occurrence as the traffic violation. In 1996 the City Court was …

City Of Chicago V. International College Of Surgeons: The Interplay Between Supplemental Jurisdiction And Cross-System Appeals, And The Impact On Federalism, Jacob Edward Daly

Mercer Law Review

In City of Chicago v. International College of Surgeons, the United States Supreme Court reversed a well-established rule in holding that federal district courts may exercise supplemental jurisdiction over state law claims for deferential review of local administrative agency decisions.

Federal Practice, Richard Mills

Mercer Law Review

The formula for success in trial practice is simple: Be prepared, be decent, and be on time.

There are ninety-four district courts in the United States. Twenty-four states have two or more districts; for example, Illinois and Georgia have three. Twenty-six states, plus the District of Columbia, Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana Islands, are single districts. And in all of those ninety-four districts over the last thirty years, the civil cases have tripled! In my district we have quadrupled our caseload in that same time frame. In the last five years alone, we have had …

Amchem Products, Inc. V. Windsor: The Supreme Court Defines The Standard For Settlement Class Action Certification, Jimmy White

Mercer Law Review

In Amchem Products, Inc. v. Windsor, a case stemming from the asbestos litigation crisis of the 1970s and 1980s, the United States Supreme Court addressed the certification criteria for settlement-only class actions under rule 23 of the Federal Rules of Civil Procedure ("Rule 23").

Raines V. Byrd: A Death Knell For The Congressional Suit?, Adam L. Blank

Mercer Law Review

In Raines v. Byrd, the Supreme Court of the United States denied standing to six members of Congress who challenged the constitutionality of the Line Item Veto Act. In its first consideration of congressional standing in nearly two decades, the Court held that a perceived diminution in institutional voting strength did not create a sufficiently particularized injury in fact to satisfy the Article III "case or controversy" requirement.

Gaining Appellate Review By "Manufacturing" A Final Judgment Through Voluntary Dismissal Of Peripheral Claims, Rebecca A. Cochran

Mercer Law Review

In recent decades, the paths from federal district courts to the federal circuit courts of appeals have narrowed considerably. Appeals through rule 54(b), section 1292(b), the collateral order doctrine, and other litigants and judges to test the limits of the most prevalent appellate path-appeal from a final judgment. This Article argues that the purposes of the final judgment rule, including judicial economy, are served, not hindered, by voluntary dismissals with prejudice of peripheral claims to render final an earlier ruling that decided the heart of the litigation.

First, this Article profiles the district court cases in which peripheral claims dismissals …

Judicial Power And The Rules Enabling Act, Linda S. Mullenix

Mercer Law Review

Congress undermines and erodes judicial power when it imperially declares and exercises an exclusive right to enact federal procedural rules. Thus, congressional intrusion into federal procedural rulemaking is the most significant contemporary issue of judicial independence. The proper province of procedural rulemaking is no mere pointillist academic quibble, but rather an issue that runs to the core of judicial power. A judiciary that cannot create its own procedural rules is not an independent judiciary Moreover, a judiciary that constitutionally and statutorily is entitled to create its own procedural rules, but must perform that function under a constant cloud of congressional …

The Fragmentation Of Federal Rules, Erwin Chemerinsky, Barry Friedman

Mercer Law Review

In 1938, the Federal Rules of Civil Procedure were adopted. Their adoption represented a triumph of uniformity over localism. The lengthy debate that prefaced the adoption of the rules focused upon the value of a national set of rules, as opposed to the then-governing practice of "conformity," in which local federal practice mirrored that of the state in which the federal courts sat. Although many different arguments were offered in favor of the federal rules, at bottom the rules' proponents carried the day by arguing that procedure ought to be the same across the federal courts and the cases those …

United Mine Workers V. Bagwell: The Civil/Criminal Indirect Contempt Fine Distinction Revisited, Franklin P. Brannen Jr.

Mercer Law Review

United Mine Workers v. Bagwell involves the imposition of indirect contempt fines stemming from a labor dispute in Virginia. In April 1989, respondents Clinchfield Coal and Sea "B" Mining Companies filed suit to enjoin petitioner International Union, United Mine Workers of America from conducting unlawful strike activities. The trial court entered an injunction that prohibited the union and its members from undertaking illegal strike-related activities. In subsequent hearings, the court imposed over $64,000,000 in fines. The trial court required that the companies prove violations of the injunction beyond a reasonable doubt but did not afford the union the right to …

Introduction To Mercer Law Review Symposium On Federal Judicial Independence, L. Ralph Mecham

Mercer Law Review

No abstract provided.

Congress And The Courts: Establishing A Constructive Dialogue, Orrin G. Hatch

Mercer Law Review

The topic of federal judicial independence is an amorphous one, and Professor Redish's fine contribution to this symposium provides meaningful shape and structure to this topic. I will leave it largely to the academics to debate the many theoretical questions raised by Professor Redish. At the outset, I would simply like to offer a few observations on the four categories into which Professor Redish subdivides the concept of federal judicial independence.

I agree with Professor Redish that what he labels "institutional" independence, "decisional" independence, and "counter-majoritarian" independence identify those basic respects in which the Constitution guarantees the federal courts protections …

Nonacquiescence By The Social Security Administration As A Matter Of Law: Using Stieberger V. Sullivan As A Model, Jody L. Davis

Mercer Law Review

Intracircuit nonacquiescence by an administrative agency is the "deliberate refusal to implement holdings in binding [circuit] court [of appeals] decisions in cases adjudicated before it." When a circuit court renders a decision that differs from the agency's schematic, the agency will either issue a formal declaration that it will not follow the circuit decision, or will silently disregard the decision and attempt to impress others that it is following the circuit's rule. The Social Security Administration's ("SSA") policy of intracircuit nonacquiescence in the Southern District of New York has been successfully challenged as being "inconsistent with the constitutionally required separation …

In Re Grabill Corporation; Appeal Of Ncnb National Bank Of North Carolina: Four To One Against Jury Trials In Bankruptcy Courts, Merritt Mcgarrah

Mercer Law Review

In In re Grabill Corporation; Appeal of NCNB National Bank of North Carolina, the Seventh Circuit Court of Appeals joined the majority of the federal circuits in holding that bankruptcy judges do not have the express or implied authority to conduct jury trials. When the Seventh Amendment grants the right to a jury trial, the district court must conduct the trial.

Article Ii Courts, David Bederman

Mercer Law Review

It is understandable that a reader may be puzzled by the title of this study. American lawyers are undoubtedly familiar with the notion of "constitutional" courts established under Article III of the Constitution.1 They also are likely to recall another class of federal tribunals, created by virtue of the legislative authority vested in Congress by Article I of the Constitution.' However, few lawyers and scholars are aware that there exists a third class of courts created by the Constitution. These are executive courts that, from time to time in the Republic's history, have been formed to administer justice, in times …

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 …

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 …

Interstitial Lawmaking: Uniformity Or Conformity?, Lillian Harris Lockary

Mercer Law Review

When Congress does not fully address the substantive law contemplated by a statute, federal courts have the responsibility to fashion a governing rule of decision according to their own standards-the conflict of laws rules of the forum. More precisely, the task of judicial legislation could be labeled one of interstitial lawmaking, of interpreting an indeterminate statute, rather than conflict of law. If subject matter jurisdiction is founded on a federal statute, and not diversity of citizenship, the source of law for the litigation is federal, and the rule of Erie R.R. v. Tompkins, that state law applies of its …

The Omnibus Hearing: Benefit Or Burden For State Courts?, Joel J. Fryer

Mercer Law Review

The inefficiency of the criminal justice system has come to be recognized by judicial reformers as a major problem that has been exacerbated by the expansion of the rights of defendants. During the past 15 years, largely in response to U.S. Supreme Court decisions attempting to insure due process and promote fairness, trial courts have had to accommodate not only the resultant changes in criminal practice and procedure but also the increased caseload caused by defendants' assertion of constitutional rights which have been recently articulated and guaranteed. The recognition that the burden placed on courts must not be so great …

Practice And Procedure, Arnold Shulman, Joseph C. Jackson

Mercer Law Review

Unfortunately in writing on the subject of practice and procedure there is little or no opportunity to indulge in attempts at anticipatory law. The writers of substantive topics may, on occasion, give a conning tower view of what should be the law and theorize on the progressive trend in various fields. However firm the trend may be toward simplification of practice and procedure, the facts only too well bear out the statement that pleading is statutory and rule-made law, and leaves to the courts very little ground for interpretive opinions. Also, all too frequently, the courts take occasion to use …