Law Commons^™

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 …

A Judicial Solution To The Forum-Selection Clause Enforcement Circuit Split: Giving Erie A Second Chanc, Kelly A. Blair

Georgia Law Review

In The Bremen v. Zapata Off-Shore Co., the Supreme
Court established the federal standard of enforcing forum-
selections clauses as presumptively reasonable. The Court,
however, first addressed the enforceability of forum-
selection clauses in a diversity case in Stewart
Organization, Inc. v. Ricoh Corp., in which the Court held
that under Erie, federal law, specifically 28 U.S.C.
§ 1404(a), governs the enforceability of forum-selection
clauses. After Stewart, a split within the United States
Courts of Appeals developed when litigants used Rule 12
motions to dismiss-a procedural vehicle unaddressed by
the Stewart Court-to enforce these clauses. The circuit
split has two …

The First Amendment, Public School Students, And The Need For Clear Limits On School Officials' Authority Over Off-Campus Student Speech, Rory A. Weeks

Georgia Law Review

When, if ever, can school officials punish a student's off-
campus speech? The Supreme Court's student-speech
jurisprudence does not provide a clear answer. But this
much is clear: School officials do not possess absolute
authority over students' on-campus speech. Public school
students do not shed their First Amendment rights at the
schoolhouse gate. And yet during school or school-related
activities, public school students do not have coequal First
Amendment rights with adults in other contexts. During
school or school-related activities, school officials may
proscribe otherwise-permitted speech in order to fulfill the
school's basic educational mission, which includes
instructingstudents in civility. …

American Electricpower V. Connecticut: Disaster Averted By Displacing The Federal Common Law Of Nuisance, Damian M. Brychey

Georgia Law Review

Historically, the federal common law of nuisance has
provided a means to regulate interstate pollution. With
the passing of legislative acts such as the Clean Water Act
and the Clean Air Act, however, traditional federal
nuisance lawsuits were displaced. The continued viability
of the federal common law of nuisance to regulate
pollution, specifically greenhouse gases, was brought to
the forefront of American jurisprudence in American
Electric Power Co. v. Connecticut. There, the Supreme
Court held that the Clean Air Act and the EPA actions the
Act authorizes displace any federal common law right to
seek abatement of greenhouse gases-reversing the …

Playing Well With Others-But Still Winning: Chief Justice Roberts, Precedent, And The Possibilities Of A Multi-Member Court, William D. Araiza

Georgia Law Review

This Essay considers methods by which a Supreme
Court Justice inclined to weaken precedent may do so
without explicitly overruling cases. Adding to the
literature examining "stealth overruling" and the

dynamics of multi-judge courts, it examines instances
from the first five years of the Roberts Court where Chief
Justice Roberts acted in a way consistent with that of a
judge who strategically situates himself among his
colleagues so as to erode precedent while appearing to
uphold it. The Essay does not speculate that the Roberts
Court, or Chief Justice Roberts himself, is any more
inclined than past Courts or Justices …

State Amici, Collective Action, And The Development Of Federalism Doctrine, Michael E. Solimine

Georgia Law Review

State attorneys general (SAGs) have been individually
and collectively active on many legal and regulatory fronts
in recent years. One of those activities has been the filing
of amicus curiae briefs in the United States Supreme

Court, especially in cases impacting the states and
federalism doctrine. Frequently SAGs will join in one
amicus brief, and briefs signed by forty or more states are
not uncommon. This phenomenon has been the subject of
attention by legal scholars and political scientists, but the
normative jurisprudential significance of such briefs has
not. In their opinions, the Justices vary in how much legal
weight, …

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 …

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 …

When Delegation Begets Domination: Due Process Of Administrative Lawmaking, Evan J. Criddle

Georgia Law Review

In federal administrative law, the nondelegation
doctrine purports to forbid Congress from entrusting its
essential legislative powers to administrative agencies.
The Supreme Court developed this doctrine during the
nineteenth century to safeguard republican values
embedded in the Constitution. Over time, however, the
Court has loosened the doctrine's grip, permitting federal
agencies to wield broad lawmaking powers subject to
minimalist "intelligible principles" established by
Congress. The Court has defended this approach on
pragmatic grounds, arguing that Congress cannot perform
its essential legislative function without entrusting
lawmaking authority to administrative agencies. What
the Court has never adequately addressed, however, is the
extent …

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 …

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 …

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 …

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 …

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 …