Law Commons^™

Appellate Practice And Procedure, Roland F.L. Hall

Mercer Law Review

This Article surveys decisions addressing appellate law and procedure handed down by the Georgia Court of Appeals between June 1, 2009 and May 31, 2010. The cases discussed fall into the following categories: (1) appellate jurisdiction; (2) preserving the record; and (3) miscellaneous cases of interest.

Business Associations, Paul A. Quirós, Lynn S. Scott

Mercer Law Review

This Article surveys noteworthy cases in the areas of corporate, limited liability company, partnership, and agency law decided between June 1, 2009 and May 31, 2010 by the Georgia Supreme Court, the Georgia Court of Appeals, the United States Court of Appeals for the Eleventh Circuit, and the United States district courts located in Georgia. In addition to surveying decisions by Georgia courts and federal courts located in Georgia, this Article discusses an important decision by the Supreme Court of the United States.

Domestic Relations, Barry B. Mcgough, Elinor H. Hitt

Mercer Law Review

This survey period saw continued evolution of domestic relations law through changes in legislation and case law. Legislation passed in the 2009 Session of the Georgia General Assembly took effect during this survey period, and the Georgia Supreme Court continued to accept non-frivolous appeals in divorce cases, which provides guidance to those interested in domestic relations law.

• PRENUPTIAL AGREEMENTS
• PLEADINGS
• CHILD CUSTODY
• CHILD SUPPORT
• ALIMONY
• DIVISION OF PROPERTY
• ADOPTION
• TRUSTS

Labor And Employment Law, W. Melvin Haas Iii, William M. Clifton Iii, W. Jonathan Martin Ii

Mercer Law Review

This Article surveys recent developments in the state statutory and common law that affect labor and employment relations of Georgia employers. Accordingly, it surveys published decisions interpreting Georgia law from June 1, 2009 to May 31, 2010. This Article also includes highlights of certain revisions to the Official Code of Georgia Annotated (O.C.G.A.).

Torts, Deron R. Hicks, Travis C. Hargrove

Mercer Law Review

This Article surveys recent developments in Georgia tort law between June 1, 2009 and May 31, 2010.

• PREMISES LIABILITY
• LIABILITY FOR ANIMAL ATTACKS
• DRAM SHOP ACT
• RESPONDEAT SUPERIOR LIABILITY
• DEFAMATION
• MEDICAL MALPRACTICE
• EMOTIONAL DISTRESS
• NEGLIGENCE

Trial Practice And Procedure, Kate S. Cook, Alan J. Hamilton, Brandon L. Peak, John C. Morrison Iii, Mary K. Weeks

Mercer Law Review

This Article addresses significant judicial and legislative developments of interest to the Georgia trial practitioner occurring during the survey period of this publication.

Workers' Compensation, H. Michael Bagley, J. Benson Ward

Mercer Law Review

The survey period from June 1, 2009 to May 31, 2010 was notable for several decisions of the Georgia Court of Appeals in areas ranging from temporary exacerbation of preexisting injury to choice of law. Minimal legislation was enacted in these areas.

Wills, Trusts, Guardianships, And Fiduciary Administration, Mary F. Radford

Mercer Law Review

This Article describes selected cases and significant legislation from the period of June 1, 2009 through May 31, 2010 that pertain to Georgia fiduciary law and estate planning.

Criminal Law, Franklin J. Hogue, Laura D. Hogue

Mercer Law Review

This year we selected a small number of significant cases and amendments to Georgia criminal law on which to focus this Survey This narrower focus allows slightly more in-depth treatment within the space limitations and may be more useful, so we hope, to practicing trial lawyers in the ever-changing area of criminal law.

• PRETRIAL ISSUES
• OPEN COURTROOM
• VENUE
• AMENDMENTS IN RESPONSE To DECISIONS
• SENTENCING

Insurance, Stephen L. Cotter, Stephen M. Schatz, Bradley S. Wolff

Mercer Law Review

This survey year, from June 1, 2009 to May 31, 2010, brought significant developments to a broad array of insurance fields. Both the Georgia Supreme Court and the United States Court of Appeals for the Eleventh Circuit held that a cancellation notice for nonpayment of a premium can also contain an offer to reinstate upon payment in the "grace" period. The supreme court has strictly enforced basic concepts of "offer and acceptance" in the context of time-limit policy demands containing less than complete release and indemnity terms, thereby appearing to put insurers in "catch 22" situations with their insureds. A …

Product Liability, Franklin P. Brannen Jr., Jacob E. Daly

Mercer Law Review

This Article surveys developments in Georgia product liability law between June 1, 2009 through May 31, 2010. It covers noteworthy cases decided during this period by the Georgia appellate courts, the United States Court of Appeals for the Eleventh Circuit, and the United States district courts located in Georgia.

Administrative Law, Martin M. Wilson, Jennifer A. Blackburn

Mercer Law Review

Even in tough economic times, the work of administrative agencies seems to continue with particularly robust growth at the state level. The number of contested agency cases seems to be rising, even those involving the most trivial details. Although the idea of more government is not fashionable in most corridors, higher levels of activity by existing governmental agencies will be the norm until the state's economic picture achieves measurable improvement.

This Article is a survey of cases from the Georgia Supreme Court and Georgia Court of Appeals from June 1, 2009 through May 31, 2010. The cases chosen for review …

Construction Law, Frank O. Brown Jr.

Mercer Law Review

This Article focuses on noteworthy construction law decisions by appellate and federal district courts in Georgia between June 1, 2009 and May 31, 2010.

• NEGLIGENT CONSTRUCTION
• GEORGIA'S CONSTRUCTION-RELATED STATUTE OF REPOSE
• STATUTES OF LIMITATION
• ASSIGNMENT OF CLAIMS
• DAMAGES LIMITATIONS
• THE MILLER ACTS
• WARRANTIES
• ARBITRATION
• RIGHT TO TERMINATE CONTRACTS
• ECONOMIC LOSS RULE
• ACCEPTANCE DOCTRINE

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

Mercer Law Review

As you may know, July 11, 2010, marked the fiftieth anniversary of Harper Lee's Pulitzer Prize-winning classic, To Kill A Mockingbird, which anecdotally inspired many in the South and beyond to enter the legal profession. Therefore, it is fitting to open this Article with Atticus Finch's oft-quoted closing statement:

The state has not produced one iota of medical evidence ... that the crime Tom Robinson is charged with ever took place ... ...

I am confident that you gentlemen will review without passion the evidence you have heard, come to a decision, and restore this defendant to his family. …

Legal Ethics, Patrick Emery Longan

Mercer Law Review

During the survey period from June 1, 2009 through May 31, 2010, the appellate courts in Georgia decided cases involving the discipline of lawyers, ineffective assistance of counsel, legal malpractice, bar admission, judicial ethics, and attorney disqualification. The courts also decided one case involving an important issue of professionalism and several miscellaneous cases. The State Bar of Georgia Formal Advisory Opinion Board issued several opinions that relate to the professional responsibilities of Georgia lawyers.

Real Property, Linda S. Finley

Mercer Law Review

The months since the last survey period from June 1, 2009 to May 31, 2010, have continued to prove perilous to the nation as well as to the State of Georgia, as real estate values have plummeted and foreclosure of real property has reached an all time high. However, as this Article attempts to show, other issues concerning real property abound. As is the case each year, it is difficult to choose the few cases that may be surveyed from the numerous decisions affecting real property law. The cases in this Article were selected either for their legal significance, to …

Class Actions, Thomas M. Byrne, Stacey A. Mcgavin

Mercer Law Review

In its noteworthy 2004 decision in Klay v. Humana, Inc., the United States Court of Appeals for the Eleventh Circuit appeared to veer from its own precedents in affirming certification of a nationwide class asserting a claim under the federal Racketeer Influenced and Corrupt Organizations Act (RICO). During 2009 the court returned to RICO class actions in Williams v. Mohawk Industries, Inc. , and this time the Eleventh Circuit vacated a district court's refusal to certify a RICO class. The proposed class consisted of Mohawk Industries employees who complained that Mohawk engaged in racketeering activity violating the federal …

Appellate Practice And Procedure, Robert G. Boliek Jr.

Mercer Law Review

The United States Court of Appeals for the Eleventh Circuit addressed a wide array of significant issues in the area of appellate practice and procedure in 2009. However, the most significant decision for the Eleventh Circuit in the area of appellate procedure came from the United States Supreme Court. In Mohawk Industries, Inc. v. Carpenter, the Supreme Court affirmed a 2008 Eleventh Circuit decision in which the court held that the collateral order doctrine does not allow for an immediate appeal of an order requiring the disclosure of evidence purportedly protected by the attorney-client privilege. Accordingly, this Article will …

Environmental Law, Travis M. Trimble

Mercer Law Review

In this survey period, the United States Court of Appeals for the Eleventh Circuit decided two cases addressing the scope of agency discretion to interpret statutes. In Friends of the Everglades v. South Florida Water Management District, the Eleventh Circuit held that the Environmental Protection Agency's adoption of the "unitary waters" definition of navigable waters under the Clean Water Act was reasonable even though that approach had been universally rejected by the courts as an interpretation of the statute prior to the agency's rule. In Miccosukee Tribe of Indians of Florida v. United States, the Eleventh Circuit upheld …

Evidence, Marc T. Treadwell

Mercer Law Review

I. INTRODUCTION

During the survey year from January 1, 2009 to December 31, 2009, the United States Court of Appeals for the Eleventh Circuit continued its recent trend of limiting the number of its published opinions, a trend discussed in more detail in a previous survey. This Survey will address several unpublished-yet noteworthy-decisions. However, readers should bear in mind Eleventh Circuit Rule 36-2, which provides that "[u~npublished opinions are not considered binding precedent, but they may be cited as persuasive authority." Also note that the court's internal operating procedures suggest an even more limited role for unpublished opinions:

The court …

Intellectual Property, Laurence P. Colton, Kerri Hochgesang, Todd Williams, Dana T. Hustins

Mercer Law Review

This Article surveys caselaw developments in the area of intellectual property relevant to the Eleventh Circuit during the 2009 calendar year. Intellectual property law comprises several discrete yet overlapping areas of law. The four primary areas of intellectual property law are patent law, trademark law (including areas such as domain name law and "cybersquatting"), copyright law, and trade secret law. Because patent law and copyright law are provided for in the United States Constitution, cases in these areas are litigated exclusively in federal courts. Trademark law and trade secret law have both federal and state aspects, and the cases in …

Trial Practice And Procedure, John O'Shea Sullivan, Ashby L. Kent

Mercer Law Review

The 2009 survey period yielded several noteworthy decisions relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit, several of which involved issues of first impression. This Article analyzes several recent developments in the Eleventh Circuit, including significant rulings in the areas of civil procedure, subject matter jurisdiction, arbitration, and statutory interpretation.

Online Travel Companies Find Issues With Hotels Extremely Taxing: Georgia's Hotel- Motel Occupancy Excise Tax And Expedia, Inc. V. City Of Columbus, T.J. Evans

Mercer Law Review

In Expedia, Inc. v. City of Columbus, the Georgia Supreme Court held that under a plain reading of the "Hotel-Motel Occupancy Excise Tax" ordinance of Columbus, Georgia, and the Official Code of Georgia Annotated (O.C.G.A.) enabling statute, the applicable tax rate must be applied to the amount an online travel company (OTC) charges a purchaser for the right to occupy a hotel room, rather than the discounted amount for which the OTC contracts with hotels to pay for a room. The supreme court's decision "marks the first time any state's highest court has ruled on the substantive issues at …

Bankruptcy, James D. Walker Jr., Amber Nickell

Mercer Law Review

I. INTRODUCTION

In 2009 the country entered into a significant recession, but bankruptcy law-perhaps surprisingly-remained relatively static, at least in the Eleventh Circuit. On a national level, things were a bit more interesting; the Chrysler bankruptcy was much discussed in the media and there was a renewed interest in allowing individuals to modify primary residence mortgages in bankruptcy. Still, even the collapse of the housing market could not move Congress to amend the Bankruptcy Code. Despite the action on a national level, in the Eleventh Circuit it was business as usual with a year that can best be described as …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

The United States Supreme Court continued to be extremely active in the realm of employment discrimination during the 2009 survey period. The Court decided five significant employment cases during 2009. Perhaps the most significant was the decision in Gross v. FBL Financial Services, Inc., in which the Court handed employers a huge victory as to the burden of proof necessary to establish age discrimination claims pursuant to the Age Discrimination in Employment Act of 1967 (ADEA). On the other hand, employees were the clear winner in Crawford v. Metropolitan Government of Nashville, in which the Court expanded the …

Federal Taxation, Dustin M. Covello, Augustus N. Makris

Mercer Law Review

This Article surveys the limited number of significant federal tax cases decided by courts in the Eleventh Circuit in 2009. In Commissioner v. Neal, the United States Court of Appeals for the Eleventh Circuit became the first circuit court of appeals to examine whether the United States Tax Court was required to conduct a trial de novo when a taxpayer appealed the Internal Revenue Service's denial of relief under I.R.C. § 6015. In Nero Trading, LLC v. United States, the Eleventh Circuit addressed the nature of the hearing a district court must provide to a taxpayer who challenges …

Labor And Employment, W. Christopher Arbery, Valerie N. Njiiri

Mercer Law Review

The trial and appellate courts within the Eleventh Circuit handed down a number of important opinions affecting labor and employment law during the survey period of January 1, 2009 to December 31, 2009. These included a ruling on a question of first impression in the Eleventh Circuit regarding whether harassment claims are cognizable under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and notable decisions involving the Employee Retirement Income Security Act of 1974 (ERISA) and the Fair Labor Standards Act (FLSA).

The "Green" Effect On White Collar Sentencing: An Analysis Of The Impact Of The Economy On Imprisonment Lengths Of Sentences For Federal White Collar Defendants, Jessica P. Morgan

Mercer Law Review

On June 29, 2009, Bernard L. Madoff was sentenced to 150 years in prison for his creation and perpetration of an unprecedented, worldwide "Ponzi" scheme, which caused an ultimate loss to thousands of investors totaling upwards of $65 billion. Although Madoff's Ponzi scheme caused more investor losses than any one similar scheme in American history, many were shocked by the severity of Madoff's sentence. As a man in his seventies, a sentence of 150 years incarceration is well beyond a life sentence and serves as a symbol to deter those who would engage in similar conduct in the future. ... …

"Sexting" To Minors In A Rapidly Evolving Digital Age: Frix V. State Establishes The Applicability Of Georgia's Obscenity Statutes To Text Messages, Hayley S. Strong

Mercer Law Review

The capabilities of modern cell phones are advancing at an unprecedented rate, and with these advancements, cell phones now resemble personal computers in numerous ways. Messages, pictures, and videos, which were once transmittable only by computer, can now be sent from one cell phone to another or from a computer to a cell phone and vice versa. While the differences between these two electronic devices may seem increasingly trivial to the average electronics user, these differences are pivotal for the criminal defendant who has used a cell phone to send a sexually explicit text message to a minor. The disparity …

Legal Writing: The View From Within, J. Christopher Rideout, Jill J. Ramsfield

Mercer Law Review

"[Wiriting is an act of identity . . . ."

We have seen that law professors systematically focus their students' attention on layers of textual and legal authority when deciphering the conflict stories at the heart of legal cases. But what happens to the people in these stories? What aspects of their identities and lives remain important when refracted through this legal lens? We can ask as well: What aspects of the law students' and professors' lives and experiences are considered to be salient during the conversation?

Why is writing hard to do? For lots of reasons, most people would …