Law Commons^™

Let Your Conscience Be Your Guide: Comparing And Contrasting Washington's Death With Dignity Act And Pharmacy Regulations After The Ninth Circuit's Decision In Stormans, Inc. V. Wiesman, Jared B. Magnuson

Georgia Law Review

In 2015, the Ninth Circuit held in Stormans, Inc. v.
Wiesmani that the Christian owners of a pharmacy in
Washington who objected to carrying and distributing
emergency contraception because it conflicted with their
religious beliefs must distribute those drugs under the
state's pharmacy regulations. Washington's
Pharmacist Responsibility Rule and Delivery Rule
require pharmacy owners to carry and distribute
emergency contraception but do not allow any
exemptions for owners or pharmacists who object to
doing so for conscience reasons. At the same time,
Washington's Death with Dignity Act makes physician-
assisted suicide legal in the state and contains a broad
exemption …

The Cost Of Appraisal Rights: How To Restore Certainty In Delaware Mergers, Matthew E. Miehl

Georgia Law Review

Delaware's legislature created appraisal rights to
ensure that minority shareholders received fair
compensation for shares that were involuntarily sold in
a merger. Modern securities practices blur the line
between a share's equity interest and its voting interest,
which enables appraisal arbitrage-individuals,
particularly hedge funds, petitioning for appraisal
rights over shares that another person has the voting
rights to. Instances of appraisalarbitragein Delaware
mergers are soaring and causing corporate buyers to be
uncertain about a merger's ultimate price. This Note
contends that Delaware's legislature can ameliorate
this problem by establishing a contemporaneous
ownership requirement and by initiating efforts to
centralize share …

Table Of Contents

Georgia Law Review

No abstract provided.

Intergovernmental Federalism Disputes, Lochlan F. Shelfer

Georgia Law Review

Constitutional litigation is increasingly being waged
between governments, in both suits between a state and
the United States, and suits between two or more states.
The jurisdictionof the Federalcourts to hear such suits,
however, is disputed. The Supreme Court's cases are
famously difficult to reconcile, with some denying
jurisdiction and other seemingly identical cases
addressing the merits without discussing jurisdiction.
Some scholars have argued that intergovernmental
disputes over political jurisdiction historically are not
justiciableand that it is constitutionally illegitimate for
the Court to hear them. Recently, some scholars have
argued that the Court should hear such cases, but have
assumed …

Keynote Speech: Walking The Line: Modern Gerrymandering And Partisanship, Nicholas O. Stephanopoulos

Georgia Law Review

INTRODUCTION I am going to be discussing an ongoing project of mine that I call hyperpartisan election law. I make three main arguments in this project. The first is that almost all of election law was created during an unusually nonpartisan period in the 1960s, 1970s, and 1980s. Consistent with this period's very low level of partisanship, election law originally did not intend to, and did not actually have the effect, of addressing partisan cleavages. The second claim is that as the country's voters and politicians have become ever more partisan over the last generation, election law has adapted in …

Table Of Contents

Georgia Law Review

No abstract provided.

Bail And Mass Incarceration, Samuel Wiseman

Georgia Law Review

It is widely known that the United States has the highest incarceration rate in the developed world, and the causes and ramifications of mass incarceration are the subject of intense study. It is also increasingly widely recognized that the high rates of pretrial detention, often linked to the use of money bail, are unjust, expensive, and often counterproductive. But, so far, the links between money bail, pretrial detention, and mass incarceration have been largely unexplored. Our criminal justice system relies primarily on plea bargains to secure convictions at a relatively low cost. And, as shown by recent empirical work, the …

The Power Few Of Corporate Compliance, Todd Haugh

Georgia Law Review

Corporate compliance in most companies is carried out under the assumption that unethical and illegal conduct occurs in a more or less predictable fashion. That is, although corporate leaders may not know precisely when, where, or how compliance failures will occur, they assume that unethical employee conduct will be sprinkled throughout the company in a roughly normal distribution, exposing the firm to compliance risk but in a controllable manner. This assumption underlies many of the common tools of compliance — standardized codes of conduct, firm-wide compliance trainings, and uniform audit and monitoring practices. Because regulators also operate under this assumption, …

Bailing On Bail: The Unconstitutionality Of Fixed, Monetary Bail Systems And Their Continued Use Throughout The United States, Margaret E. Margaret

Georgia Law Review

Incarceratingdefendants prior to trial was designed to be
the exception, not the norm. Many state and local
jurisdictionsthroughout the United States, however, employ
fixed, monetary bail systems that result in the systematic pre-
trial incarceration of indigent defendants solely because of
their inability to pay for their release. Not only do such bail
systems violate indigent defendants' constitutional rights,
they also contribute to the billions spent by local governments
each year on maintainingovercrowded jails and have lasting
effects on those indigent defendants wrongfully detained.
This Note explores the constitutionalityof fixed, monetary
bail systems through the lens of a recent Georgiacase, …

Revisionist Municipal Liability, Avidan Y. Cover

Georgia Law Review

The current constitutional torts system under 42
U.S.C. § 1983 affords little relief to victims of
government wrongdoing. Victims of police brutality
seeking accountability and compensation from local
police departments find their remedies severely limited
because the municipal liability doctrine demands
plaintiffs meet near-impossible standards of proof
relating to policies and causation.
This Article provides a revisionist historical account
of the origin of the Supreme Court's municipal liability
doctrine. Most private claims for damages against
cities or police departments do not implicate the
doctrine's early federalism concerns over protracted
federal judicial interference with local governance.
Meanwhile, the federal government imposes …

The Bearish Bankruptcy, Diane L. Dick

Georgia Law Review

Modern bankruptcy practice under Chapter 11
presumptively excludes the large and publicly-traded
corporate debtor's shareholders from the negotiation
table based on a longstanding assumption that they
have no economic interest to protect because most
bankrupt companies are insolvent. But bankruptcy
practice overlooks a shareholder's most important
economic interest: the right to enjoy the reorganized
firm's unlimited upside potential after all creditor
claims are satisfied. This interest, which is essentially
an option right, is totally ignored in the debtor's
hypothetical liquidation analysis. In a similar way,
the debtor's upside potential is not fully captured by
prevailing enterprise valuation techniques.
Of course, …

Talk Isn't Cheap: Protecting Freedom Of Speech In Light Of Georgia's Anti-Boycott Legislation, Maria Kachniarz

Georgia Law Review

Historically,political boycotts have occupied a central
place in American tradition, going as far back as the
Founding. However, the years of 2016 and 2017 have
marked a sudden influx of state anti-boycott legislation.
Georgia was no exception, passing a statute in 2016
prohibiting those who boycott Israel from contracting
with the state. This statue violates the FirstAmendment
guaranteesof freedom of speech. First, boycotts of Israel,
or BDS as they are collectively called, are protected
political speech. The Supreme Court has repeatedly
protected politically motivated boycotts, despite their
detrimental economic effects. Further, Georgia's anti-
boycott legislation impermissibly stifles that protected
speech …

Crowdfunding Signals, Darian M. Ibrahim

Georgia Law Review

Entrepreneurs can now “crowdfund,” or sell securities to unaccredited investors over the Internet, to raise capital. But will these companies be able to attract the follow-on investors (angels and venture capitalists) that are necessary for long-term success? Angels and VCs face extreme levels of information asymmetry when deciding whether to fund a company. Signals can reduce this asymmetry. Early commentary argues a company only crowdfunds as a last resort for fear of sending a negative signal about the company’s quality to follow-on investors. This Article argues the inverse. This Article argues a successful crowdfunding campaign can send a positive signal …

Detainee Transfers And Immigration Judges: Ice Forum-Shopping Tactics In Removal Proceedings, Roger Grantham

Georgia Law Review

U.S. immigration policy and ICE tactics have been greatly scrutinized over the past year. While many criticisms focus on border policy and the conditions of detention, scholars have also raised concerns over ICE’s unfettered discretion to transfer detainees to different detention centers. Not only may ICE transfer detainees anywhere in the country, ICE has gradually expanded this practice. Now, on average, every detainee is transferred at least once each year. ICE, however, is not the sole point of criticism for immigration advocates. Recently, Immigration Judges’ decisions have been scrutinized for their lack of consistency. Wide variations in IJ decision making …

Table Of Contents

Georgia Law Review

No abstract provided.

A Single Symbolic Dollar: How Nominal Damages Can Keep Lawsuits Alive, Megan E. Cambre

Georgia Law Review

The Eleventh Circuit's August 2017 opinion in
Flanigan's Enterprises v. City of Sandy Springs
deepened a circuit split regarding the role of
nominal damages in the justiciabilityanalysis. The
critical question is whether, in cases involving
constitutional violations, a claim for nominal
damages alone suffices to confer standing or to
defeat mootness when other forms of relief are
unavailable or moot. The Second, Fifth, and Ninth
Circuits have all held that nominal damages alone
are enough, but not without contention from
dissenting judges. The First, Third, Fourth,
Seventh, Eighth, and D.C. Circuitshave considered
the question-but have not conclusively decided its
answer. …

Table Of Contents

Georgia Law Review

No abstract provided.

If Established By Law, Then An Administrative Judge Is An Officer, Jennifer L. Cotton

Georgia Law Review

Administrative Judges (AJs) are a large and often overlooked group of federal agency adjudicators. While courts have examined Article II Appointments Clause challenges to Administrative Law Judges (ALJs), courts have yet to encounter a legal challenge to the constitutionality of AJs’ appointment procedures. The constitutionality of any federal government actor’s appointment is dependent upon whether that actor is an “officer” or an “employee” under the Article II Appointments clause. It is apparent that the current “significant authority” test that the Supreme Court has espoused to distinguish between officers and employees is unworkable. This Note endeavors to set forth a bright-line …

Perfecting Bitcoin, Kevin V. Tu

Georgia Law Review

Bitcoin is still here. The price of Bitcoin rebounded-
setting a record high of $19,783.21 per Bitcoin in
December 2017 before dropping to a price of $8,690 per
Bitcoin as of March 22, 2018. Moreover, legal and
regulatory developments, like New York's BitLicense and
federal taxation of virtual currency as property, can be
viewed as legitimizing its use. The normalization of
virtual currency is evidenced by its increasingly
mainstream applications. Virtual currency can be used
as a faster and lower cost method of transferringfunds
domestically and internationally. A growing number of
retailers now accept virtual currency as a method of …

How To Fill A Procedural Loophole: Re-Evaluating The Ragan And Walker Analysis In Light Of Federal Rule Of Civil Procedure 4(M), Holly M. Boggs

Georgia Law Review

Legislatures implement statutes of limitations to
protect defendants from being brought into lawsuits for
incidents long past. However, a proceduralloophole in
the Georgiafederal court system could permit plaintiffs
to disregardstatutes of limitations and wait as long as
they please to notify a defendant of a pending claim.
The loophole exists because federal courts in Georgia
must defer to state law governing the tolling of statutes
of limitations, and that state law is procedurally
incompatible with the federal court's system. In order
to fill the procedural loophole, this Note argues that the
Eleventh Circuit should apply the federal rule-rather
than Georgia's …

Two Wrongs Don't Make It Right: Title Vii, Sexual Orientation, And The Misuse Of Stare Decisis, Kenneth A. Pilgrim

Georgia Law Review

More than thirty years ago, LGBT employees across
the United States sought relief from discrimination
under Title VII of the Civil Rights Act, claiming
protection under the statute's guarantee that employers
may not discriminate "because of sex." The federal
Courts of Appeals responded with a unanimous voice.
Title VII does not cover sexual orientation.
That conclusion was neither shocking nor
controversial in the early 1980's, but the Judiciary's
interpretationof Title VII has changed fundamentally in
the decades since. Multiple Supreme Court decisions
and newly recognized theories of sex discriminationhave
called into question the notion that Title VII has nothing
to …

The Impropriety Of Punitive Damages In Mass Torts, James A. Henderson Jr.

Georgia Law Review

Punitive damages have been around for centuries in classic
one-on-one tort actions and are here to stay. Mass torts, of
more recent origin, have matured to the point that this article
is comfortable referring to most of them as traditional.
Notwithstanding the legitimacy of both institutions when
employed separately, loud warning signals should sound
when, as with drinking and driving, they are combined.
Potentially destructive mixes of punitive damages and mass
torts have, unfortunately, been prevalent in traditional,fault-
based mass tort actions. The difficulties are mostly
administrative.Although punitive damages are conceptually
compatible with fault-based mass torts, courts administer
punitive awards …

Cumulative Finality, Bryan Lammon

Georgia Law Review

A proper notice of appeal is a necessary first step in
most federal appeals. But federal litigants sometimes
file their notice of appeal early, before district court
proceedings have ended. When those proceedingsfinally
end and no new notice is filed, the law of cumulative
finality determines what effect-if any-the premature
notice has. Sometimes the notice is effective and the
appeal proceeds as normal. Sometimes it's not, and
litigants lose their right to appeal.
At least, that's how the law of cumulative finality looks
from a distance. Up close, the courts of appeals are
hopelessly divided on matters of cumulative finality. …

Patent Law And Means-Plus-Function Claim Language: Where It Was, Where It Is (Post Williamson V. Citrix), And Where It Should Go In The Future, Joel Bradley

Georgia Law Review

In response to proliferating abuse of the functional
language allowances governing means-plus-function
patent claims in 35 U.S.C. § 112, the Federal Circuit, in
its recent decision Williamson v. Citrix, lowered the
presumption againstpatent claims arising under § 112.
Before Citrix, there existed a strongpresumption that the
scope of § 112 did not encompass claims not including
the specific language "means"-aloophole that drafters
employed to avoid being subject to § 112 limitations.
The Federal Circuit sought to remedy this loophole by
lowering the strength of the presumption and also by
shifting the focus of the presumption to language
analogous to "mean." …

Assessing The Efficacy Of The Cfpb's Regulation Of Student Loan Companies, Ian E. Calhoun

Georgia Law Review

Outstanding student loan balances totaled over
$1.38 trillion as of December 31, 2017 with 11% of
student loan debt over ninety days delinquent or in
default. Due to half of all student loans being in
deferment, grace periods, or forbearance, the actual
delinquency rate is likely double the above figure.
Delinquent student borrowers enrolled in some form of
college education expect to improve their financial
position. Instead, many find themselves unable to break
even under the weight of large amounts of debt with
confusing, and often misleading, repayment plans.
Many blame the lending practices of student loan
providers and servicers …

The First Amendment Case Against Partisan Gerrymandering, Emmet J. Bondurant Ii, Ben W. Thorpe

Georgia Law Review

The Supreme Court recognizes that "[p]artisan
gerrymanders... [are incompatible] with democratic
principles."I This makes good sense. The fundamental
objective of redistrictingis to "establish 'fairand effective
representation for all citizens. '2 And partisan
gerrymandering-whichthe Supreme Court defines as
"drawing... district lines to subordinate adherents of
one political party and entrench a rival party in
power'--runs counter to that fundamental objective.
Nonetheless, the Supreme Court has yet to invalidate
a redistricting plan solely as an unconstitutional
partisan gerrymander. This Symposium issue of the
Georgia Law Review, however, comes at a crucial
moment in the Court's treatment of that question. A case
now …

The History Of Redistricting In Georgia, Charles S. Bullock Iii

Georgia Law Review

In his memoirs, Chief Justice Earl Warren singled out
the redistrictingcases as the most significant decisions of
his tenure on the Court., A review of the changes
redistricting introduced in Georgia supports Warren's
assessment. Not only have the obligations to equalize
populations across districts and to do so in a racially fair
manner transformed the makeup of the state's collegial
bodies, Georgia has provided the setting for multiple cases
that have defined the requirements to be met when
designing districts.
Other than the very first adjustments that occurred in
the 1960s, changes in Georgia plans had to secure
approval from …

Constitutional Preservation And The Judicial Review Of Partisan Gerrymanders, Edward B. Foley

Georgia Law Review

This Essay makes three contributions to the debate
over whether the Constitution contains a judicially
enforceable constrain on gerrymanders. First,it directly
tackles the Chief Justice'sfear of thejudiciaryappearing
partisan,observing that the same fear would exist if the
Constitution explicitly banned gerrymanders and
explaining why an implicit ban should be no less
judicially enforceable than an explicit ban under
Marbury v. Madison. Second, invoking the idea of
"institutional forbearance" in the important new book
How Democracies Die, the Essay shows how the
Elections Clause can be construed to protect
congressional districting from abuses of legislative
discretion committed by state legislatures. Together,
these …

Non-Alj Adjudicators In Federal Agencies: Status, Selection, Oversight, And Removal, Kent H. Barnett, Russell Wheeler

Georgia Law Review

This article republishes—in substantively similar form—our 2018 report to the Administrative Conference of the United States (ACUS) concerning federal agencies’ adjudicators who are not administrative law judges (ALJs). (We refer to these adjudicators as “non-ALJ Adjudicators” or “non-ALJs.”) As our data indicate, non-ALJs significantly outnumber ALJs. Yet non-ALJs are often overlooked and difficult to discuss as a class because of their disparate titles and characteristics. To obtain more information on non-ALJs, we surveyed agencies on non-ALJs’ hearings and, among other things, the characteristics concerning non-ALJs’ salaries, selection, oversight, and removal. We first present our reported data on these matters, which …

The Sec Rides Into Town: Defining An Ico Securities Safe Harbor In The Cryptocurrency “Wild West”, C. Daniel Lockaby

Georgia Law Review

This Note recommends a viable way for the Securities and Exchange Commission (SEC) to apply the Regulation S foreign-issuer safe harbor to Initial Coin Offerings (ICOs). In the last two years, cryptocurrencies and blockchain-based companies have witnessed dramatic rises in price and value. New entrants to the crypto-markets often use ICOs as virtual public offerings to earn capital and develop their projects.

The SEC has signaled that they plan to fold ICOs and blockchain offerings into existing securities law. How these new virtual capital-raising mechanisms will fit into this framework is still largely unknown. As a defensive measure, many ICOs …