Law Commons^™

Labor And Employment Law, W. Jonathan Martin Iii, Alyssa K. Peters, Patricia-Anne Brownback, David S. Cromer

Mercer Law Review

This Article surveys revisions to the Official Code of Georgia Annotated (O.C.G.A.) and decisions interpreting Georgia law from June 1, 2022 to May 31, 2023, that affect labor and employment relations for Georgia employers.

Construction Law, Peter F. Crofton, David R. Cook, C. Jackson Parker

Mercer Law Review

This annual Survey Article focuses on noteworthy opinions by Georgia appellate courts and federal courts in Georgia relevant to the practice of construction law. This Survey Article highlights key developments, including Georgia’s Anti-Indemnity Act, High Voltage Safety Act, Lien Waiver Statute, the United States Supreme Court’s recent Sackett v. EPA decision, the Southern States Chemical and Tampa Tank dispute, insurance coverage updates, discovery, forum selection clauses, and more. For construction lawyers, these developments are essential to understand in navigating the ever-evolving practice of construction law in Georgia.

Confederate Standoff: The Georgia Supreme Court Clarifies Standing Requirements In Sons Of Confederate Veterans V. Henry County Board Of Commissioners, Clay Wright

Mercer Law Review

The Supreme Court of Georgia’s ruling in Sons of Confederate Veterans v. Henry County Board of Commissioners marks a transformative moment in the evolution of Georgia’s standing doctrine. The case delves into the dimensions of standing in Georgia courts, specifically addressing whether community stakeholders, such as citizens, residents, taxpayers,and voters, must prove an individualized injury to establish standing when raising a general grievance against their local government.

Evidence, John E. Hall Jr., W. Scott Henwood, Krysta Grymes

Mercer Law Review

In the decade following the adoption of Georgia’s new evidence code, courts throughout the state have analyzed and ruled upon complex issues involving the interpretation of the new rules, along with how to reconcile the new rules with the vast body of existing precedent. This Article discusses continuing interpretations of Georgia’s evidence rules in Title 24 of the Official Code of Georgia Annotated (O.C.G.A.), for the period of June 1, 2022 through May 31, 2023, specifically delving into: (1) the admissibility of layperson opinion evidence; (2) the admissibilityof “other acts” evidence; and (3) judicial interpretations of “unfairprejudice” in relation to …

Local Government, Jacob Stalvey O'Neal

Mercer Law Review

This Article surveys a selection of noteworthy cases involving local government that Georgia courts decided between June 1, 2022 and May 31, 2023.

Commissioners Shoot For The Moon, Citizens Land Among The Stars: The Supreme Court Of Georgia Affirms Citizen Referendum Power In Camden County V. Sweatt, J. Bailey Hotard

Mercer Law Review

Georgia citizens possess few direct democratic mechanisms to check the power of their local governments. One available tool is the referendum power proscribed by the Home Rule Provision of the Constitution of the State of Georgia. Under this provision, county and municipal citizens may petition their local governing authorities for referendum when a legislative decision is largely unpopular. Relying on originalism and textualism, the Supreme Court of Georgia interpreted the Home Rule Provision broadly in Camden County v. Sweatt, a decision than ran counter to a twenty-five-year precedent. This court’s recent interpretation of the Home Rule Provision allows citizens …

Administrative Law, Moses M. Tincher, Abrianna Harris

Mercer Law Review

This Article surveys cases from the Supreme Court of Georgia and the Court of Appeals of Georgia from June 1, 2022 through May 31, 2023, in which principles of administrative law were a central focus of the case. Review of decisions by administrative agencies will be the first topic discussed, followed by cases discussing discretionary appeals, followed by cases discussing procedural requirements, with scope of authority to follow. The Article will conclude with cases discussing statutory construction

Principles Of Georgia Constitutional Interpretation, Nels S.D. Peterson

Mercer Law Review

The Supreme Court of Georgia routinely emphasizes the importance of interpreting the Georgia Constitution on its own terms, and not merely importing federal interpretations of the federal Constitution. That makes sense, “[r]eal federalism means that state constitutions are not mere shadows cast by their federal counterparts, always subject to change at the hand of a federal court’s new interpretation of the federal Constitution." But independent interpretation of the Georgia Constitution is often easier to talk about than to do.

The Real World: Iqbal/Twombly The Plausibility Pleading Standard’S Effect On Federal Court Civil Practice, Matthew Cook, Kate Cook

Mercer Law Review Symposium

Several publications already exist detailing the evolution of American civil pleading standards, the personalities involved throughout, as well as the differing iterations’ theoretical and philosophical underpinnings. This Article is written not from the viewpoint of a scholar, but a practitioner. It is the practitioner who drafts, files, and defends against these pleadings. It is the practitioner who provides the “boots on the ground” execution of legislative and judicial directives. It is the practitioner who experiences the aspects of litigation that are not ultimately published in a reporter. And it is the practitioner who must explain to his or her clients …

Solving A Sixth Amendment Crisis: The Case For Resource Parity In Georgia’S Indigent Defense System, Meagan R. Hurley

Mercer Law Review Symposium

The United States criminal legal system employs what is said to be an “adversary” system—one in which opposing parties—the prosecution and the defense—present their evidence and arguments (usually in conflict with one another) to a neutral third party (a judge or jury) for adjudication. The idea behind the adversarial process is that a judge or jury is best positioned to make determinations of guilt or innocence once provided with reliable information from competent, zealous, and prepared advocates on both sides of the podium. At its core, the adversarial system is meant to function as the mechanism by which constitutional principles …

Going Beyond Fear In Addressing Attorney Mental Health, Eric C. Lang

Mercer Law Review Symposium

We know that a career in law is challenging, but our profession has only recently focused on the mental health consequences of those challenges. We first started analyzing mental health issues after a number of attorney suicides caught the public eye. Realizing the problem was much broader than the tragic outcome of suicide, we have spent the last several years focused on the use of statistics to convince the profession of its own dangers. The solution, to date, has been an emphasis on Lawyer Assistance Programs and “wellness” initiatives accompanied by what could be described as scare tactics designed to …

Bankruptcy, John T. Laney Iii, Thomas Alec Chappell, Siena Berrios Gaddy

Mercer Law Review

This Article focuses on bankruptcy opinions issued by the Supreme Court of the United States and the United States Court of Appeals for the Eleventh Circuit. Topics addressed include constitutionality of the 2017 U.S. Trustee quarterly fee increase; statutory mootness under 11 U.S.C. § 363(m); retroactive application of § 505(a)(2)(C); exemption of traditional and Roth IRAs from a debtor’s bankruptcy estate; scope of “claim” under § 101(5); effect of post-petition transfers on the new value preference defense; scope of the fiduciary capacity exception from discharge of § 523(a)(4); and errors in debtor’s name in a financing statement.

Federal Income Taxation, Andrew Todd

Mercer Law Review

In 2022, the United States Court of Appeals for the Eleventh Circuit issued two published opinions involving U.S. federal income tax issues. The first opinion, Sarma v. Commissioner, addressed procedural issues arising under the unified partnership audit procedures that were added to the Internal Revenue Code by the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA). The second opinion, Kroner v. Commissioner, addressed an issue of first impression in this circuit concerning supervisory review of tax penalties. This Article surveys both of those opinions.

“I’Ll Give You My Trust Assets, When You Pry Them From My Cold, Dead Hands”: The Supreme Court Of Georgia Clarifies That A Mere Challenge To A Trust’S Formation Will Not Trigger An In Terrorem Clause, Kiana Johnson

Mercer Law Review

Imagine a television infomercial wakes you up from your sleep. While refocusing your vision, you faintly hear the television say: “Are you a disgruntled beneficiary?” You think to yourself, “I’m not disgruntled, but I sure wish I could have more money.” You are slightly intrigued, so you crank up the volume on the television, and the infomercial emphatically states, “Do you believe you are entitled to ‘ill-gotten gains’?” You think to yourself, “I have no idea what ill-gotten gains are.” I just want ownership over the assets I —.”

Giller v. Slosberg, 359 Ga. App. 867, 858 S.E.2d 747 …

Immigration Law, Bianca N. Dibella, Michael C. Duffey

Mercer Law Review

This Article surveys cases from the United States Court of Appeals for the Eleventh Circuit from January 1, 2022 through December 31, 2022, in which immigration law was a central focus of the case. The Article begins with a discussion of cases addressing procedural and jurisdictional issues and the interpretation of decisions by lower and state courts. Then, the Article describes the Eleventh Circuit’s recent jurisprudence around discretionary relief from removal, asylum, and habeas corpus law.

Admiralty, John P. Kavanagh Jr.

Mercer Law Review

The cases discussed herein represent decisions from the United States Court of Appeals for the Eleventh Circuit, as well as district courts within the Eleventh Circuit, issued in 2022. While not an all-inclusive list of maritime decisions during that timeframe, the Author identifies and provides summaries of key rulings of interest to the maritime practitioner.

Evidence, W. Randall Bassett, Nikolas L. Volosin

Mercer Law Review

In its 2022 term, the United States Court of Appeals for the Eleventh Circuit issued several opinions on evidence. The opinions covered evidentiary issues ranging from admitting statements by criminal defendants under Miranda, the admission of expert and lay opinion testimony, the use of character evidence under Federal Rule of Evidence 404, and the admission of hearsay evidence based on exceptions under Rule 803. The discussion below explores these evidentiary issues and how the Eleventh Circuit addressed them in its 2022 term.

Trial Practice And Procedure, John O'Shea Sullivan, Leesa M. Guarnotta, Grace B. Callanan

Mercer Law Review

The 2022 Survey period yielded decisions involving issues of first impression relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit. This Article analyzes recent trial practice developments in the Eleventh Circuit, including significant rulings in the areas of consumer debt collections, arbitration, copyrights, Federal Rule of Civil Procedure 54, and a rule change regarding party disclosures.

Game, Set, …Tie? The Eleventh Circuit Gives Courts Discretion To Refrain From Choosing A Prevailing Party, Tessa Sizemore

Mercer Law Review

During the National Football League’s (NFL) 2022 opening week, the Houston Texans game versus the Indianapolis Colts ended in a tie after an impressive fourth-quarter comeback by the Colts. This is only the nineteenth opening week tie in NFL history. Much like that Texans-Colts game, the United States Court of Appeals for the Eleventh Circuit hosted a legal dispute which ended in a tie this year. While the American legal system is no game, it is certainly a surprise when our adversarial system produces a legal result with no winner.

Ready. Aim. Fire! The Eleventh Circuit Takes Its Shot At The Second Amendment’S Application To Illegal Aliens, Elizabeth Mcdaniel

Mercer Law Review

The United States Court of Appeals for the Eleventh Circuit was faced with a constitutional question involving the People and the Second Amendment of the Constitution in United States v. Jimenez-Shilon. The issue was whether 18 U.S.C. § 922(g)(5)(A), (the Statute) which prohibits illegal aliens from possessing firearms, violates the Second Amendment. Relying on the historical context of the Constitution and prior Supreme Court caselaw concerning the Second Amendment, the Eleventh Circuit held it does not. While this case was one of first impression in the Eleventh Circuit, the constitutionality of the Statute has now been litigated in nine …

Waiving Goodbye To Oil Spill Claims Against The United States: The Eleventh Circuit Creates A Narrow Exception To The Sovereign Immunity Waiver In The Suits In Admiralty Act Of 1920, Anika Akbar

Mercer Law Review

Costs related to oil spills can be extraordinary. Excluding the damage to the environment and to the vessel alone, a responsible party may incur containment costs, clean-up costs, cost of repairing public infrastructures, and fines and fees for causing the spill. Additionally, the owner of the spilling vessel also risks liability for lost profits to other businesses in the surrounding areas, including those that can no longer fish in the affected area. ...

On September 8, 2019, the M/V Savage Voyager (the Vessel) was pushing two tank barges laden with oil along the Tennessee-Tombigbee Waterway (the Waterway) when it approached …

Doubling Down: Supreme Court Of Georgia Allows For Seemingly Double Recovery Of Attorney’S Fees, Katie Anderson

Mercer Law Review

Never settle. Good words to live by, unless you are a civil defendant living in the state of Georgia. Following the Supreme Court of Georgia’s decision in Junior v. Graham, defendants in civil actions might have more of an incentive to settle their cases after the court allowed for a seemingly double recovery of attorney’s fees.

Georgia courts have consistently upheld the public policy of barring double recovery. Damages in civil actions are intended to make a plaintiff whole, not punish a defendant. However, in Junior, the court held that two statutory provisions, despite their similar measure of damages, did …

Criminal Law, Thomas D. Church, Whitney Baker

Mercer Law Review

This Article provides a brief examination of the United States Court of Appeals for the Eleventh Circuit’s most important opinions in 2022 in the area of federal criminal law. Rather than engage in an exhaustive review of the facts and laws in each case, we focus on the key holdings from only the most noteworthy, published decisions. Section II of this Article addresses substantive criminal offenses, such as economic crimes, drug offenses, and firearm offenses, while Section III covers criminal procedure, the rules of evidence, and constitutional issues arising in criminal prosecutions. Section IV deals with the Federal Sentencing Guidelines …

Environmental Law, Travis M. Trimble

Mercer Law Review

In 2022, the United States Court of Appeals for the Eleventh Circuit held that a plaintiff and the organization to which she belonged had standing, based on her claimed injury to her aesthetic well-being, to bring a Clean Water Act (CWA) citizen suit against a developer who had allegedly filled a wetland in violation of its permit, even though the plaintiff had never visited the wetland and even though the wetland was on private property not accessible to the plaintiff. The United States District Court for the Northern District of Alabama concluded that acid mine leachate from a refuse pile …

Managers Are People, Too! The Eleventh Circuit’S Rejection Of The “Manager Exception” Allows Human Resource And Managerial Employees To Bring Title Vii Retaliation Claims, Kaitlyn Myles

Mercer Law Review

Human resource (HR) managers undertake important tasks at companies. For example, a company may employ a human resource manager to manage internal issues, such as those affecting lower-level employees. That HR manager may come to the conclusion that a lower-level employee, having faced some discrimination from the company, had their rights violated. In that situation, the HR manager may advocate for the employee against the company. Subsequently, the company terminates the HR manager for siding with the employee over the company. Can the HR manager successfully bring a retaliation suit against the company? It depends. More specifically, the answer depends …

For Whom The Church Bells Toll: The Supreme Court Of Georgia Resolves The Issue Of Whether Fraud Can Toll The Statute Of Limitations For Sexual Abuse Claims, Sydney Thompson

Mercer Law Review

In January of 2002, the Boston Globe published an article detailing widespread allegations of child sexual abuse by serial pedophiles and a sophisticated coverup that implicated high ranking clergy members. In the aftermath of the article, thousands of men and women from across the United States came forward with their own allegations, which revealed patterns of abuse and deception in dioceses around the country. The wave of litigation that followed raised compelling questions about statutes of limitations, discovery rules, and the long term effects of childhood sexual abuse.

Twenty years after the Globe’s article, the Supreme Court of Georgia decided …

Class Action, Thomas M. Byrne, Stacey Mcgavin Mohr

Mercer Law Review

The United States Court of Appeals for the Eleventh Circuit worked its way through a varied menu of class-action issues during 2022, including the multifaceted problem of uninjured class members—which the court has decided to consider en banc—as well as several class-action jurisdictional issues. The court also declined to rehear en banc its controversial 2020 decision prohibiting class-representative incentive awards, a decision that the Supreme Court recently declined to review as well.

Labor And Employment, W. Jonathan Martin Ii, Patricia-Anne Brownback

Mercer Law Review

This Article focuses on recent cases concerning federal labor and employment laws. The following is a discussion of those opinions.

How Free Is Your Speech On Social Media? Reconciling The Circuit Split Created By The Eleventh And Fifth Circuit’S Decisions On Anti-Censorship Laws Governing Social Media Platforms, Stella Preston

Mercer Law Review

If you were to walk up to a random person on the street and ask to look at their cell phone, it is almost guaranteed that you would find one or more social media applications (apps) installed. In fact, according to a 2021 study conducted by Pew Research Center, around 72% of the adult population within the United States uses some form of social media. Some of the most notoriously known and popularly used social media apps include Facebook, Twitter, Instagram, and YouTube. At a fundamental and foundational level, social media is used as a means of communication between people …

An Ouroboros Of Sorts: Eleventh Circuit Remands To Bia As “Moral Turpitude” Continues Creating Division, Emma Blue

Mercer Law Review

The blue sky stretches endlessly across the open road, a red pickup coasting down the highway. The truck’s cabin is warm from the summer sun. A father holds the steering wheel in a loose grip, relaxed against the plastic bench seat. His daughter sits beside him, staring out the window at the sky ripping by—it’s them against the world, and for a breath, the peace is infinite. But then the deepest pothole snags the back wheel. The pickup veers off road in a chorus of metallic screeching. The father tries to correct, but the tire shudders against the dirt, careening …