Law Commons^™

The Right To Trial By Jury Shall Remain Inviolate: Jury Trials In Civil Actions In Georgia’S Courts, David E. Shipley

Scholarly Works

Trials, though rare, “shape almost every aspect of procedure,” and the jury trial is a distinctive feature of civil litigation in the United States. The Seventh Amendment of the U.S. Constitution ‘preserves’ the right to jury trial “[i]n suits at common law, where the value in controversy shall exceed twenty dollars.” Even though this amendment does not apply to the states, courts in the states “honor the right to the extent it is created in their constitutions or local statutes.”

The Georgia Constitution provides that “[t]he right to trial by jury shall remain inviolate,” and Georgia’s appellate courts have shown …

A Fourteenth Century Solution To A Twenty-First Century Problem: Using Qui Tam Legislation To Limit Executive War Power, Nicholas R. Lewis

Georgia Law Review

The United States was founded on the principle that Congress alone has the power to take the nation to war. This founding principle has failed. In its place now stands the modern principle that the Executive holds the power to initiate, wage, and conclude warfare. This modern principle, which is irreconcilable with the intent of America’s Founders, is a problem that must be remedied. And while this problem may be most pronounced in the twenty-first century, a possible solution comes from the most unlikely of places: fourteenth century England. In the 1300s, England developed qui tam legislation, a novel legal …

The University Of Georgia School Of Law And Early Legal Education, Paul Deforest Hicks

Other Law School Publications

The history of the University of Georgia School of Law examines how developments in American legal education and local attitudes and traditions influenced its formative years. Founded in 1859 as the Lumpkin Law School, it was among the newest of 21 university law schools (those that awarded law degrees) on the eve of the Civil War.

To head the revived law school, the UGA board of trustees chose William L. Mitchell. As chairman of the board’s Prudential Committee, he was a principal architect of the 1859 reorganization of the university that included creation of the law school.

Almost all southern …

American Religious Liberty Without (Much) Theory: A Review Of Religion And The American Constitutional Experiment, 5th Edition, Nathan S. Chapman

Scholarly Works

Book review of Religion and the American Constitutional Experiment, 5th ed. By John Witte Jr., Joel A. Nichols, and Richard W. Garnett. Oxford: Oxford University Press, 2022. Pp. 464. $150.00 (cloth); $39.95 (paper); $26.99 (digital). ISBN: 9780197587614.

Constitutional Text, Founding-Era History, And The Independent-State-Legislature Theory, Dan T. Coenen

Scholarly Works

One question raised by proponents of the so-called independent-state-legislature theory concerns the extent to which state courts can apply state constitutional requirements to invalidate state laws that concern federal elections. According to one proposed application of the theory, state courts can never subject such laws to state-constitution-based judicial review. According to another application, federal courts can broadly, though not invariably, foreclose state courts from drawing on state constitutions to invalidate federal-election-related state legislation. This article evaluates whether either of these positions comports with the original meaning of the Constitution. Given the article’s focus on the originalist methodology, it directs attention …

Executive Discretion And First Amendment Constraints On The Deportation State, Jennifer Lee Koh

Georgia Law Review

Given the federal courts’ reluctance to provide clarity on the degree to which the First Amendment safeguards the free speech and association rights of immigrants, the immigration policy agenda of the President now appears to determine whether noncitizens engaging in speech, activism, and advocacy are protected from retaliation by federal immigration authorities. This Essay examines two themes: first, the discretion exercised by the Executive Branch in the immigration context; and second, the courts’ ambivalence when it comes to enforcing immigrants’ rights to be free from retaliation. To do so, this Essay explores the Supreme Court’s influential 1999 decision in Reno …

Popular Enforcement Of Controversial Legislation, Randy Beck

Scholarly Works

Texas opted for popular enforcement of Senate Bill 8 (S.B. 8), prohibiting abortion once a fetal heartbeat can be detected. In an effort to prevent pre-enforcement judicial review, the legislature precluded enforcement of the statute by government officials. Instead, any member of the public may sue for statutory damages of at least $10,000 from any person who (1) performs an abortion violating the statute, (2) knowingly aids or abets such an abortion, or (3) “intends” to perform or aid and abet such an abortion.

The cause of action authorized by S.B. 8 is a “popular action,” a once common method …

Journeys Through Space And Time While Reading International Law And The Politics Of History, Found On A Palimpsest, Translated For You, The Reader, Harlan G. Cohen

Scholarly Works

I was invited to a symposium on Anne Orford’s book, International Law and the Politics of History. On my way there, my mind wandered, and I found myself lost in a forest of half-remembered stories and unfinished thoughts. Searching for a way out, this is what I discovered.

The Lost History Of Delegation At The Founding, Christine Chabot

Georgia Law Review

The new Supreme Court is poised to bring the administrative state to a grinding halt. Five Justices have endorsed Justice Gorsuch’s dissent in Gundy v. United States—an opinion that threatens to invalidate countless regulatory statutes in which Congress has delegated significant policymaking authority to the Executive Branch. Justice Gorsuch claimed that the “text and history” of the Constitution required the Court to replace a longstanding constitutional doctrine that permits broad delegations with a more restrictive one. But the supposedly originalist arguments advanced by Justice Gorsuch and like-minded scholars run counter to the understandings of delegation that prevailed in the Founding …

The Clean Air Act Of 1963: Postwar Environmental Politics And The Debate Over Federal Power, Adam D. Orford

Scholarly Works

This Article explores the development of the Clean Air Act of 1963, the first law to allow the federal government to fight air pollution rather than study it. The Article focuses on the postwar years (1945-1963) and explores the rise of public health medical research, cooperative federalism, and the desire to harness the powers of the federal government for domestic social improvement, as key precursors to environmental law. It examines the origins of the idea that the federal government should "do something" about air pollution, and how that idea was translated, through drafting, lobbying, politicking, hearings, debate, influence, and votes, …

Originalism From The Soft Southern Strategy To The New Right: The Constitutional Politics Of Sam Ervin Jr, Logan E. Sawyer Iii

Scholarly Works

Although originalism’s emergence as an important theory of constitutional interpretation is usually attributed to efforts by the Reagan administration, the role the theory played in the South’s determined resistance to civil rights legislation in the 1960s actually helped create the Reagan coalition in the first place. North Carolina Senator Sam Ervin Jr., the constitutional theorist of the Southern Caucus, developed and deployed originalism because he saw its potential to stymie civil rights legislation and stabilize a Democratic coalition under significant stress. Ervin failed in those efforts, but his turn to originalism had lasting effects. The theory helped Ervin and other …

Nation’S Business And The Environment: The U.S. Chamber’S Changing Relationships With Ddt, “Ecologists,” Regulations, And Renewable Energy, Adam D. Orford

Scholarly Works

Nation’s Business was a monthly business magazine published by the U.S. Chamber of Commerce, with a subscription list larger than Business Week, Forbes, or Fortune. This study explores how the magazine responded and adapted to the rise of environmentalism, and environmental regulation of business, by exploring its treatment of four topics: DDT, environmentalists, government regulation, and renewable energy. It is built on a full-text review of all issues of Nation’s Business published between 1945 and 1981. It reveals the development of a variety of anti-environmental logics and discourses, including the delegitimization of environmentalism as emotional and irrational, the undermining …

Inside Baseball: Justice Blackmun And The Summer Of '72, Savanna L. Nolan

Articles, Chapters and Online Publications

This article examines the historical context of Justice Blackmun's infamous opinion from Flood v. Kuhn, also known as the baseball case. Analysis includes discussion of recently re-discovered personal letters between Justices Powell and Blackmun.

Glimpses Of Women At The Tokyo Tribunal, Diane Marie Amann

Scholarly Works

Compared to its Nuremberg counterpart, the International Military Tribunal for the Far East has scarcely been visible in the seven decades since both tribunals’ inception. Recently the situation has changed, as publications of IMTFE documents have occurred alongside divers legal and historical writings, as well as two films and a miniseries. These new accounts give new visibility to the Tokyo Trial – or at least to the roles that men played at those trials. This essay identifies several of the women at Tokyo and explores roles they played there, with emphasis on lawyers and analysts for the prosecution and the …

Marshall Shapo's "Constitutional Tort" Fifty-Five Years Later, Michael Wells

Scholarly Works

In 1965, Northwestern University Law Review published Professor Marshall Shapo’s article, Constitutional Tort: Monroe v. Pape and the Frontiers Beyond.1 Professor Shapo’s paper analyzed the origins of constitutional tort law, which consists of suits for damages for constitutional violations committed by government officials or the governments themselves. The article began with an account of the post-Civil War background of 42 U.S.C. § 1983, a statute enacted in 1871 to enforce the Fourteenth Amendment. After the Civil War, recalcitrant southerners, acting through groups like the Ku Klux Klan, intimidated the freedmen and their white supporters, organized lynch mobs, burned houses, and, …

Forgotten Federal-Missionary Partnerships: New Light On The Establishment Clause, Nathan Chapman

Scholarly Works

Americans have long disputed whether the government may support religious instruction as part of an elementary education. Since Everson v. Board of Education (1947), the Supreme Court has gradually articulated a doctrine that permits states to provide funds, indirectly through vouchers and in some cases directly through grants, to religious schools for the nonreligious goods they provide. Unlike most other areas of Establishment Clause jurisprudence, however, the Court has not built this doctrine on a historical foundation. In fact, in Trinity Lutheran v. Comer (2017), the dissenters from this doctrine were the ones to rely on the founding-era record.

Intriguingly, …

Timelords & Timelines: Four Web Apps For Storytelling In Libraries, Rachel S. Evans, Sharon Bradley, David Rutland

Presentations

From online embeds to interactive displays, timelines can serve many purposes and tell powerful stories. In this panel librarians discuss collaboration and how to bring history to life through displays, events and online platforms for engaging students and preserving community milestones. Four of our favorite tools for creating digital timelines and gathering content will be shared including Prezi, TikiToki, TimeToast, and Piktochart. Comparisons will be given based on cost, technical limitations, and general ease of use. Specific examples will also be shared and discussed.

The Case That Stirred The State Of Georgia, Donald E. Wilkes Jr.

Popular Media

In the second half of the 19th Century, hundreds of murders occurred in Georgia, but only two murder cases electrified the entire state. Both cases were the subject of massive amounts of publicity in Georgia newspapers, and for years both cases were ceaselessly talked about in every part of this state.

One of these two notable murder cases was the Woolfolk murder case, involving Tom Woolfolk, nicknamed Bloody Woolfolk, who in 1887 murdered nine members of his family with an axe in Bibb County and after two trials was hanged in 1890. In 1997, I published a book review in …

Method And Dialogue In History And Originalism, Logan E. Sawyer Iii

Scholarly Works

There is a sharp separation between the scholarly literature of originalists and professional historians. Originalists cite one another, but regularly ignore recent work by historians. Historians are generally happy to return the favor. Engagement between the two communities is too often limited to methodological disputes and amicus briefs. As a result, historical inquiry offers less to constitutional law than it might, and constitutional lawyers offer less to history than they could. Some of this separation is due to unavoidable methodological tension, but those tensions have not always frustrated productive dialogue. Originalism, in fact, emerged as an important theory of constitutional …

Constructing The Original Scope Of Constitutional Rights, Nathan Chapman

Scholarly Works

In this solicited response to Ingrid Wuerth's "The Due Process and Other Constitutional Rights of Foreign Nations," I explain and justify Wuerth's methodology for constructing the original scope of constitutional rights. The original understanding of the Constitution, based on text and historical context, is a universally acknowledged part of constitutional law today. The original scope of constitutional rights — who was entitled to them, where they extended, and so on — is a particularly difficult question that requires a measure of construction based on the entire historical context. Wuerth rightly proceeds one right at a time with a careful consideration …

Amazing Facts About The Jfk Assassination, Donald E. Wilkes Jr.

Popular Media

During the past half century, resourceful scholars, journalists and private researchers within the JFK assassination research community, to their enormous credit, repeatedly have uncovered relevant evidence unavailable or overlooked during the official investigations. The members of this research community are the persons who have been the most active in examining the millions of pages of previously secret government documents relating to the assassination that have been declassified and released to the public since 1992.

While many key factual questions about the JFK assassination remain answered, we now, in 2018, know more of the facts surrounding the assassination than ever before. …

Between Economic Planning And Market Competition: Institutional Law And Economics In The Us, Laura Phillips Sawyer

Scholarly Works

In 1926 John Maurice Clark published a seminal text in institutionalist economics, Social Control of Business, surveying the ways in which business was subject to control by a variety of formal and informal constraints. 1 The text rejected mainstream ideas in neoclassical political economy by explaining how individual self-interest and competition could be manipulated not only through legal rules but also by custom, habit, codes of ethics, and morals. Representative of the institutionalist movement, Clark discarded presumptions of an individualistic economy based on market competition. Instead, he posited that long-term public goals of prosperity and equity could be achieved through …

A Reformed Liberalism: Michael Mcconnell’S Contributions To Christian Jurisprudence, Nathan Chapman

Scholarly Works

Michael McConnell is one of the most influential constitutional scholars of the past thirty years. He has written a great deal about religious liberty, but relatively little about how his own religious beliefs may relate to his constitutional jurisprudence. This essay is the first to explore the connection between McConnell’s religious views and scholarship. The essay engages with a short piece by McConnell that sketches the outlines of a “reformed liberalism.” McConnell argued that reformed Christian theology is compatible with the classical liberalism that animated the framing of the U.S. Constitution. Though he did not develop this account into a …

Qui Tam Litigation Against Government Officials: Constitutional Implications Of A Neglected History, Randy Beck

Scholarly Works

The Supreme Court concluded twenty-five years ago, in Lujan v. Defenders of Wildlife, that uninjured private plaintiffs may not litigate “generalized grievances” about the legality of executive branch conduct. According to the Lujan Court, Congress lacked power to authorize suit by a plaintiff who could not establish some “particularized” injury from the challenged conduct. The Court believed litigation to require executive branch legal compliance, brought by an uninjured private party, is not a “case” or “controversy” within the Article III judicial power and impermissibly reassigns the President’s Article II responsibility to “take Care that the Laws be faithfully executed.” The …

Did J. Edgar Hoover Kill Jfk?, Donald E. Wilkes Jr.

Popular Media

This article reviews a recent story in the National Enquirer that asserts that J. Edgar Hoover ordered the JFK murder which directly contradicts earlier claims made by the publication.

The Jfk Cover-Up Continues, But The Truth Is Seeping Out, Donald E. Wilkes Jr.

Popular Media

In 1992, nearly three decades after JFK was slain by hidden sniper fire in Dallas, TX, on Nov. 22, 1963, Congress without any dissenting votes passed a statute “to provide for the expeditious disclosure of records relevant to the assassination of President John F. Kennedy.”

The recent astonishing refusal of President Trump to release in full the contents of all remaining classified JFK assassination files confirms that more than half a century after the assassination the governmental coverup of the full truth about that dreadful murder is still underway.

This article reviews the actions immediately preceding October 26, 2017, the …

Inimicus Libertatis: Chief Justice Rehnquist’S Majority Or Plurality Opinions In The Field Of Criminal Procedure, Donald E. Wilkes Jr.

Scholarly Works

Since the early 1970’s an increasingly conservative Supreme Court of the United States has been leading this country through a “Criminal Procedure Counterrevolution” (also called “The Rehnquisition”), during which the federal rights and remedies of criminal defendants have been inexorably and significantly eroded. There are numerous books and law review articles discussing this counterrevolution. Chief Justice Rehnquist, the most articulate and ideological of the Courts conservative justices, may properly be regarded as the intellectual founder and leader of this trend in favor of restricting criminal procedure rights.

This article analyzes and provides a bibliography of Supreme Court criminal procedure opinions …

Grassy Knoll Shots? Limousine Slowdown?, Donald E. Wilkes Jr.

Popular Media

This article reviews the book Twenty-six Seconds by Alexandrea Zapruder. It also questions whether the only film of the JFK assassination was altered by the CIA.

Circumstances Undetermined: Dorothy Kilgallen And Jfk's Murder, Donald E. Wilkes Jr.

Popular Media

This article reviews the mysterious circumstances surrounding reporter Dorothy Kilgallen's death and the assassination of President John F. Kennedy.

Law Of The Sea-Submerged Lands-A State Must Exercise Substantial, Continuous, And Recognized Authority To Establish A Body Of Water As A Historic Bay, Sarah Melissa Stebbins

Georgia Journal of International & Comparative Law

No abstract provided.