Law Commons^™

An Analysis Of In Re Piper Aircraft Corporation, Tara Adyanthaya

Mercer Law Review

In In re Piper Aircraft Corp., the Eleventh Circuit Court of Appeals determined when future claimants hold claims within the meaning of section 101(5) of the United States Bankruptcy Code (the "Bankruptcy Code"). Piper Aircraft Corporation filed for bankruptcy and attempted to reorganize under Chapter 11 of the Bankruptcy Code. Because many Piper aircraft were operational at the time of the filing, it was after confirmation of the reorganization plan, but arising out of or relating to products manufactured, sold, designed, or distributed by Piper prior to confirmation. The bankruptcy court appointed a Legal Representative to protect the interests …

The Eleventh Circuit Gives The Banking Industry A Lesson About Reverse Preemption In Barnett Bank Of Marion County, Na. V. Gallagher, Jess Pinkerton

Mercer Law Review

Recently, in Barnett Bank of Marion County, N.A. v. Gallagher, the United States Court of Appeals for the Eleventh Circuit was presented with the question of whether Florida's prohibition against affiliations between banks and insurance agents was protected from preemption by the McCarran-Ferguson Act. The appellant, Barnett Marion, is a subsidiary of Barnett Banks, Inc., the largest bank holding company centered in Florida. Barnett Marion maintains its principal place of business in Ocala, Florida; however, it owns and operates a branch in Belleview, Florida, a locality where the population is less than five thousand. On October 18, 1993, Barnett …

United States V. Hays: A Winnowing Of Standing To Sue In Racial Gerrymandering Claims, Jack Pritchard

Mercer Law Review

In United States v. Hays, the United States Supreme Court addressed the issue of whether individuals who reside outside racially gerrymandered districts have standing to sue on racial gerrymandering claims. In May 1992, Louisiana passed Act 42 of its Regular Session, which redrew its district boundaries to form two majority-minority districts -Districts 4 and 2. District 4 was a "Z-shaped creature" that zigzagged through twenty-eight parishes and five major cities, yet the Act was precleared by the United States Attorney General. The plaintiffs, Hays et al., were residents of Lincoln Parish, which was located in the newly formed District …

Administrative Law, Susan Wells Drechsel

Mercer Law Review

The Eleventh Circuit Court of Appeals addressed a broad range of administrative law issues during 1995. In a case of first impression for the Eleventh Circuit, the court held that a criminal defendant's time spent in halfway and safe houses cannot be credited against the defendant's sentence. In reaching this conclusion, the court deferred to a "program statement" issued without notice and comment by the United States Department of Justice's Bureau of Prisons. The court also discussed, but did not decide, the first impression issue for the circuit of the proper scope of judicial review in an appeal of a …

Admiralty, Thomas S. Rue

Mercer Law Review

The Court of Appeals for the Eleventh Circuit decided eight admiralty cases with written opinions in 1995. Five of the decided cases involved issues of first impression. One case considered whether appellate review may be exercised over a stay order favoring arbitration after the stayed action is dismissed for failure to arbitrate as ordered. Two cargo cases dealt with issues of first impression. One case involved two issues of first impression: whether the carrier's failure to deliver the goods on a sight draft basis constituted a misdelivery and whether a misdelivery amounted to a deviation causing the loss of the …

Evidence, Marc T. Treadwell

Mercer Law Review

The publication of this, article marks the tenth time the Mercer Law Review has honored the author by asking him to survey Eleventh Circuit evidence decisions. While some may argue the Review has returned to the same well entirely too many times, ten years of analyzing Eleventh Circuit evidence decisions cannot help but to give some perspective and, perhaps, even some insight into the court's decisions. In this regard, there can be no doubt that the Eleventh Circuit has dramatically reduced its level of scrutiny of evidentiary issues. In the late 1980s, it could be fairly said that the court …

Waiver Of Sovereign Immunity: An Analysis Of Gilbert V. Richardson, Susan Hurt

Mercer Law Review

In Gilbert v. Richardson, the Georgia Supreme Court addressed the issue of whether a county waives its sovereign immunity by purchasing liability insurance. On September 1, 1991, Deputy Kathy Richardson responded to an emergency call and collided with Emma and Tommy Gilbert's vehicle. Both Gilberts were injured. The Gilberts brought suit against the Walker County Sheriff's Department, the sheriff, and a deputy sheriff. Plaintiffs alleged that Sheriff Millard, as the employer of the deputy sheriff, was liable for the acts of the deputy while she was acting within the course of her employment. Walker County's Georgia Interlocal Risk Management …

Bankruptcy, W. Homer Drake Jr., Michael M. Duclos

Mercer Law Review

During 1995, the United States Court of Appeals for the Eleventh Circuit decided seventeen cases in the area of bankruptcy law. These decisions covered a wide variety of issues arising under the Bankruptcy Code,1 and one decision even concerned a case under the old Bankruptcy Act of 1898 ("Bankruptcy Act").2 This article is a survey of the bankruptcy decisions rendered by the Eleventh Circuit in 1995.

Mckennon V. Nashville Banner Publishing Company: Progression Of The After-Acquired Evidence Doctrine, Lauren L. Logan

Mercer Law Review

In McKennon v. Nashville Banner Publishing Co., the United States Supreme Court held that after-acquired evidence of employee wrongdoing that would have led to termination on lawful and legitimate grounds does not bar the employee from all relief sought under an employment discrimination action. The plaintiff, Christine McKennon, had worked for the defendant, Nashville Banner Publishing Company, for thirty years when, as claimed by Banner, she was discharged as part of a work force reduction plan. McKennon, who was sixty-two years old at the time of her discharge, claimed that her termination was based on her age. She filed …

Constitutional Criminal Procedure, James P. Fleissner

Mercer Law Review

This Article surveys significant 1995 decisions of the United States Court of Appeals for the Eleventh Circuit in the field commonly referred to as "Constitutional Criminal Procedure." The primary focus of this branch of criminal procedure is on the interpretation of the Fourth, Fifth, and Sixth Amendments to the Constitution. In selecting notable cases from 1995, the author looked for important interpretations of legal tests, rulings in cases of first impression, and opinions on close or controversial questions. I have endeavored to provide criminal practitioners with a useful "briefing" on recent significant developments in the Eleventh Circuit. Furthermore, I hope …

Employment Discrimination, John F. Dickinson, F. Damon Kitchen

Mercer Law Review

The employment law docket of the Eleventh Circuit last year was a reflection of the general state of employment-related litigation in all but one respect. It included a large number of decisions, many of which turned on complicated procedural issues arising out of trial practice before juries. On the other hand, as in previous years the court of appeals published no opinion concerning a disability claim under the Americans With Disabilities Act of, 1990. These are sure to come.

Consistent with the tradition of past articles on this topic, this survey does not attempt to include all opinions that touch …

Federal Sentencing Guidelines, Andrea Wilson

Mercer Law Review

Whether the sentencing guidelines have finally become familiar enough for consistent application or because there were so few amendments last year,' there seem to be fewer dramatic and controversial Eleventh Circuit decisions regarding sentencing this year than in years past. The court took the opportunity to focus more closely on the process of sentencing itself rather than on the precise application of the guidelines.

The Court wrote extensively about the district courts' frequent failure to create a fully articulated record on which appellate review can be had. Expanding on its earlier requirement that district courts elicit and respond to objections …

The Allure Of The Illogic: A Coherent Solution For Rule 703 Requires More Than Redefining "Facts Or Data", Paul R. Rice

Mercer Law Review

In his article entitled Developing A Coherent Theory of the Structure of Federal Rule of Evidence 703, Professor Imwinkelried proposes a theory for the interpretation of Rule 703. He argues that a restrictive interpretation of the terms "facts or data" in Rule 703 would resolve the conflicts that have plagued that Rule. Professor Imwinkelried's proposal would exclude research data and other background facts from the definition of "facts or data." By his interpretation, when an expert is testifying to an opinion based on facts that have not been proven at the trial the expert witness may only rely on …

No Exclusion For Adea Claims Under I.R.C. § 104(A)(2): An Analysis Of Commissioner V. Schleier, T. Mark Sandifer

Mercer Law Review

In order to resolve inconsistent conclusions between the courts of appeals as to the taxability of damages received under the Age Discrimination in Employment Act of 1967 (ADEA), the United States Supreme Court granted certiorari in Commissioner v. Schleier. After receiving damages in an ADEA settlement with United Airlines, Inc., Erich Schleier included as gross income the back pay portion of the settlement, but excluded the portion of the settlement attributed to liquidated damages on his 1986 federal income tax return. The Tax Commissioner issued a deficiency notice, claiming Schleier should have included the liquidated damages as gross income. …

Rosenberger V. Rector & Visitors Of The University Of Virginia: Free Speech Clause And Establishment Clause Doctrines Work Together To Protect Individual Thought And Expression, Elizabeth M. Wheeler

Mercer Law Review

In Rosenberger v. Rector & Visitors of the University of Virginia, the United States Supreme Court evaluated the constitutionality of a state university's refusal to fund a student group's activity based solely on the group's Christian perspective. Respondent, the University of Virginia, regularly authorizes the payment of the printing bills for various student publications. Upon authorization, the University pays outside printing contractors directly with money from the Student Activities Fund ("SAF), which is supported by mandatory student fees. The purpose of the SAF is to make available to students a wide range of opportunities by supporting extracurricular activities that …

Developing A Coherent Theory Of The Structure Of Federal Rule Of Evidence 703, Edward J. Imwinkelried

Mercer Law Review

Some commentators have suggested that the American judicial hearing is becoming trial by expert. As recently as 1974, the Jury Verdict Reporter for Cook County, Illinois, listed only 188 regularly testifying experts? Today, there are more than 3,100-a 1,540 percent increase. In the late 1980s, the Cook County state courts averaged one expert per trial. In some areas, the trend is even more pronounced. In the early 1990s, the Rand Corporation released a study of the use of experts in trials in California courts of general jurisdiction. Expert witnesses appeared in eighty-six percent of the trials studied, an average of …

Paranoia, Patriotism, And The Citizen Militia Movement: Constitutional Right Or Criminal Conduct?, R.J. Larizza

Mercer Law Review

As this country rushes towards the twenty first century, a growing cloud of civil unrest has found its way into the hearts of many Americans. In a bold move to challenge the power of the federal government, a significant number of American citizens have sought refuge from perceived government injustice by forming citizen militias. These self styled militia groups fear that the liberties guaranteed by the United States Constitution are rapidly evaporating in the wake of a federal government that has grown too large and powerful. For example, while addressing the Senate Subcommittee on terrorism, Norman Olson (Commander of the …

Allied-Bruce Terminix Companies V. Dobson: The Implementation Of The Purposes Of The Federal Arbitration Act Or An Unjustified Intrusion Into State Sovereignty?, Lauri Washington Sawyer

Mercer Law Review

In Allied-Bruce Terminix Companies v. Dobson, the United States Supreme Court held that section 2 of the Federal Arbitration Act ("FAA) was applicable to contract actions which were brought in state court. The controversy began with a house originally owned by Mr. and Mrs. Gwin in Fairhope, Alabama. In 1987, the Gwins purchased a lifetime termite protection plan from the local Allied-Bruce Terminix office, a franchise of Terminix International. The termite protection plan was to protect the house "'against the attack of subterranean termites,' to reinspect the house periodically, to provide any 'further treatment found necessary,' and to repair, …

Thinking Like A Lawyer: Second Thoughts, James R. Elkins

Mercer Law Review

What does it mean to have a law-trained mind? What kind of purposes and achievements are held out to those who seek schooling in law? What kind of failures are associated with those who adopt a legal mind-set? What happens to the moral sensibilities of those who follow the path of teachers who claim to teach you to "think like a lawyer"? How does a law education shape one's ethics and how is this education put to work in the practice of law? What do we become as a result of an education in law? These are difficult questions because …

Experts, Judges, And Commentators: The Underlying Debate About An Expert's Underlying Data, Ronald L. Carlson

Mercer Law Review

Debate concerning the limits of judicial power over expert witnesses remains active and in its early stages. Commentators charting the course of judicial opinions observe that some of the modem regulatory proposals have yet to enlist official adoption. Part of the problem may relate to recognition of questions. Courts will adjudicate critical issues only when they are made aware of them. The burden of calling attention to an expert's flawed bases falls squarely on trial lawyers who must make astute and incisive objections.

In this formative period of legal development important decisions will be made. The future direction of courtroom …

Uneasy Burden: What It Really Means To Learn To Think Like A Lawyer, Peter R. Teachout

Mercer Law Review

If you think you can think about a thing that is hitched to other things without thinking about the things that it is hitched to, then you have [learned to think like a lawyer].
Thomas Reed Powell

It imposes the uneasy burden and occasional joy of a complex double vision, a fluid, ambivalent response to men and events which represents, at its finest, a profoundly civilized adjustment to the cost of being human in this modern world.
Ralph Ellison

I first met Jim Elkins in the summer of 1979 when we were fellows together in a Law and Humanities program …

Florida Bar V. Went For It, Inc.: The Supreme Court Opens The Door For Heightened Limits On Attorney Advertising, Brett A. Steele

Mercer Law Review

Florida Bar v. Went For It, Inc. involves the constitutionality of Florida Bar rules prohibiting personal injury lawyers from sending targeted direct-mail solicitations to accident victims and their families within thirty days following an accident. In March 1992, respondent Went For It, Inc., a lawyer referral service, and its owner, G. Stewart McHenry, filed suit in the United States District Court for the Middle District of Florida against the Florida Bar, seeking declatory and injunctive relief. After referral from the district court, a magistrate judge recommended summary judgment in favor of the Florida Bar. The magistrate judge found that the …