Law Commons^™

Construction Law, Brian J. Morrissey, R. Kyle Woods

Mercer Law Review

The field of construction law embraces a wide range of topics that students of the law more traditionally recognize as contracts, torts, insurance, remedies, procedure, and property. These traditional legal concepts, however, have special applications in construction industry disputes. Because of the burgeoning nature of construction law practice, a survey within this area of specialization will be helpful to practitioners. This Article is intended to focus upon legal problems and issues of current interest to those who represent owners, architects, engineers, contractors, subcontractors, and suppliers on construction projects. To facilitate an understanding of recent developments in construction law, the authors …

Business Associations, Paul A. Quirós, Lynn Scott Magruder

Mercer Law Review

This Article surveys noteworthy cases that Georgia appellate courts and the United States district courts in Georgia decided during the survey period. It also reviews important acts of the Georgia General Assembly concerning corporation, partnership, securities, and banking law. Additionally, we have broadened our review to include cases decided by the Eleventh Circuit Court of Appeals as they relate to Georgia corporate, partnership, and banking law. Although this Article traditionally has reviewed agency law, the authors have elected to eliminate it from the scope of review this year.

Commercial Law, James C. Marshall

Mercer Law Review

The decade of the eighties saw substantial ground gained and lost by both sides of the seemingly interminable tug of war between debtors and creditors concerning the collection of deficiencies following nonjudicial sales of personal property. The first movement in this contest for the nineties, Contestabile v. Business Development Corp., occurred only twelve days into the decade. Although debtors clearly gained ground in this initial skirmish, how much ground is unclear.

Contracts, B. Morris Martin

Mercer Law Review

In 1990 the Georgia General Assembly passed an Act addressing a long-standing debate concerning the proper limits on contracts that restrain parties in their trade, business, or employment. After reaffirming the principle that contracts in general restraint of trade are against public policy and void, the general assembly codified the exception to the rule carved out by the courts. This exception held reasonable restraints on competition in business or employment are partial restraints of trade and are not against public policy. The Act, which became effective on July 1, 1990, amended section 13-8-2 of the Official Code of Georgia Annotated …

Domestic Relations, Barry B. Mcgough, Andrea G. Alpern

Mercer Law Review

In this survey period, the legislature revised the step-parent adoption statute four months after the Georgia Supreme Court declared it unconstitutional. In a case of first impression, the supreme court held that a third-party defendant in a divorce case must comply with the application- for-appeal procedure of section 5-6-35(a)(2) of the Official Code of Georgia Annotated ("O.C.G.A.").' In another case, the supreme court declared that even after spouses are no longer functioning as partners, the property they acquire before entry of a final decree of divorce is marital property.

Section I of this Article covers cases dealing specifically with children, …

Criminal Law And Procedure, Donald F. Samuel, Kathleen V. Duffield

Mercer Law Review

In many respects, this was a quiet year in the area of criminal law and procedure. Though the appellate courts reviewed nearly as many criminal cases as all other types of cases combined, there were few major developments that marked a departure from settled precedent. Perhaps the most significant developments involved two areas of substantive law: the Georgia Supreme Court staked out new territory in the area of bribery,1 holding that a "campaign contribution" may amount to a bribe if the donor expects a specific quid pro quo;2 and the court held that in future murder cases involving self-defense, the …

Evidence, Marc T. Treadwell

Mercer Law Review

The most significant development in Georgia evidence law during the survey period was the continued effort to adopt a new Georgia evidence code based upon the Federal Rules of Evidence. As reported in last year's survey article, the proposed Georgia Rules of Evidence (the "proposed Rules") were introduced during the 1989 session of the, general assembly but did not reach the floor of either chamber. The proposed Rules were again introduced in the 1990 session and promptly received unanimous Senate approval. The Rules were then referred to the House Judiciary Committee where they remained until the end of the session. …

Insurance, Maximilian A. Pock

Mercer Law Review

After spending a quarter of .a century as a "court watcher" in these pages, this writer may be permitted to make some observations on the evolution of Georgia jurisprudence in the burgeoning field of insurance law. Since no clear. patterns commend themselves for jurimetric analysis, these observations are. necessarily impressionistic and even random. First, it is apparent the so-called "easy reading" or "simple English" policies, adopted by insurers in response to the.Parthenopean oratory of consumer groups, are winding their way through the courts. Professor Huber drafted the Swiss Civil Code at the turn of this century with the purpose of …

Legal Ethics, L. Ray Patterson

Mercer Law Review

With one exception, the legal ethics cases this year involved well established rules of law. The case constituting the exception dealt with the breach of a rule of ethics as the basis for a malpractice claim. This Article will discuss that issue first and then will proceed to discuss other relevant cases.

Intellectual Property, John C. Yates, Michael W. Mattox

Mercer Law Review

This Article is divided in the following sections: (1) Recent History of Intellectual Property Developments; (2) Trade Secrets; (3) Trademarks and Unfair Competition; (4) Restrictive Covenants and Employment Issues; (5) Copyright and Fine Art; (6) Computer Crime; and, (7) Future Trends. Driven by the explosive growth of technology, the protection of intellectual property in the 1990s will undoubtedly prove to be one of the most dynamic and controversial areas of the law. The state legislature and the United States Congress are considering numerous bills which will affect intellectual property. This area of the law, therefore, requires careful monitoring of legislative …

Local Government Law, R. Perry Sentell Jr.

Mercer Law Review

In a year charged with worldwide exhilaration, the wall of sophisticated repression crumbled and free jurisprudential passage prevailed across litigational checkpoints previously fraught with the deadly terror of ignorance. In an atmosphere literally saturated with analytical amazement, Georgia local government law declared its independence from stultifying mediocrity. Laying siege to ambivalence the subject demanded high profile recognition in both judicial and legislative diplomacy. On this map of legal terrain, the cases are loosely marshalled by topic and the posted statutes are all general ones. It would not be prudent at this juncture to reveal more.

Real Property, Robert L. Foreman Jr., T. Daniel Brannan, Barry G. Roberts

Mercer Law Review

Although the judicial and legislative developments during the survey period covered little new ground, several interesting developments occurred in Georgia real property law. In the following pages, the authors review some of the more noteworthy developments.

Trial Practice And Procedure, David A. Forehand Jr., Ken M. Nimmons

Mercer Law Review

Because the trial of a lawsuit is often, by its very nature, as dramatic as a Shakespearean production, the trial lawyer must assume the roles of writer, actor, and director. He must indulge himself in the effusions of forensic eloquence, "reason with the accuracy and power of the trained logician, and enforce his cause with all the inspirations of genius," and ultimately persuade a jury to his cause. In attempting to set the stage for a successful conclusion to the drama of trial, the trial lawyer must adhere to the rules of trial practice and procedure. While the authors of …

State And Local Tax, Crawford B. Edwards Jr.

Mercer Law Review

The past year was a relatively quiet year for tax matters. The cases were varied and for the most part, either clarified some issues or covered procedural matters. In the area of real estate transfer taxes, the transfer tax is based on the net value of the conveyance (the purchase price less the outstanding indebtedness), when an existing mortgage or encumbrance remains after the transfer. In the ad valorem tax area, the cases dealt primarily with procedural matters concerning valuation. The court clarified the religious exemption by providing a "primary use of the property" test in cases in which religious …

Torts, Cynthia Trimboli Adams, Charles R. Adams Iii

Mercer Law Review

In its formative years, the late nineteenth-century academic-judicial symbiosis placed a high value on the achievement of order and coherence in fields of law. A successful law review article or treatise was one that "illuminated" a field by propounding doctrines capable of continuing to organize an increasing number of cases in intelligible fashion.

Perhaps more than any other type of law review publication, the survey article continues to serve this lofty ideal. It will be for the reader to judge these writers" success in attaining it here.

Wills, Trusts, And Administration Of Estates, James C. Rehberg

Mercer Law Review

Without doubt, the most important developments in fiduciary law in Georgia during the past year were legislative. The most attention-grabbing of these are, first, the repeal of Georgia's version of the common law rule against perpetuities and the adoption in its stead of the Uniform Statutory Rule Against Perpetuities and, second, the repeal of the Georgia Gift to Minors Act and the adoption in its stead of the Georgia Transfers to Minors Act. These two statutes, along with several other significant but less attention-grabbing ones, will be discussed in the first portion of this Article. A discussion of noteworthy judicial …

Workers' Compensation, H. Michael Bagley, Daniel C. Kniffen, John G. Blackmon Jr.

Mercer Law Review

Unlike recent years, which saw significant changes in the Georgia Workers' Compensation Act through appellate decisions, the past survey period was. most noteworthy for the actions of the Georgia Legislature. Following months of debate in a study committee, formed by State Senator Harold Dawkins and composed of representatives from industry, labor, insurance, self-insurers, and attorneys, the 1990 Georgia General Assembly passed amendments sponsored by Senator Dawkins and Senator Arthur "Skin" Edge that corrected some longstanding problems in Georgia's workers' compensation laws. This year's Article reviews this new legislation, as well as the appellate decisions affecting workers' compensation.

The Third Best Choice: An Essay On Law And History, Theodore Y. Blumoff

Articles

The thesis of this Essay is that our use of history is as essential and unavoidable as conclusive answers are irretrievable. Irretrievability exists whether the historical reality sought results from a survey of traditional historical materials in an effort to recapture original understanding, or from a common-law effort to discover the Court's own history of an issue. In either case, however, the need to attempt to recover historical truths is perceived as essential. I subscribe, for the most part, to the contextualist premise that we cannot recover sufficient historical data on issues that matter to make history determinate in the …