Law Commons^™

Unconstitutionality And The Rule Of Wide-Open Cross-Examination: Encroaching On The Fifth Amendment When Examining The Accused, Ronald L. Carlson, Michael S. Carlson

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When Georgia adopted a new evidence code on January 1, 2013, it embraced the rule on scope of cross-examination which local courts have traditionally followed. This is the wide-open rule which permits the cross-examiner to range across the entire case, no matter how limited the direct exam. Subjects foreign to the direct can be freely explored, limited only by the rule of relevancy.

Commentators have associated the majority, more limited cross-examination methodology with American jurisprudence and the wide-ranging approach with English courts. Reflecting this divide, the Supreme Court of South Dakota recognized "two principal schools of thought" when it comes …

The Great Writ Hit: The Curtailment Of Habeas Corpus In Georgia Since 1967, Donald E. Wilkes Jr.

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A welcome development, the landmark Georgia Habeas Corpus Act of 1967 modernized and vastly expanded the availability of postconviction habeas corpus relief in the Georgia court system. Since the early 1970s, however, there has been an unfortunate trend of imposing crippling restrictions on use of the Georgia writ of habeas corpus to obtain postconviction relief. Six restrictive Georgia habeas statutes, enacted between 1973 and 2004, have, among other things, reduced the number of claims which may be asserted in postconviction habeas proceedings, curtailed appeals of postconviction habeas decisions denying relief, and created a maze of procedural barriers to obtaining postconviction …

The Filibuster And The Framing: Why The Cloture Rule Is Unconstitutional And What To Do About It, Dan T. Coenen

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The U.S. Senate’s handling of filibusters has changed dramatically in recent decades. As a result, the current sixty-vote requirement for invoking cloture of debate does not produce protracted speechmaking on the Senate floor, as did predecessors of this rule in earlier periods of our history. Rather, the upper chamber now functions under a “stealth filibuster” system that in practical effect requires action by a supermajority to pass proposed bills. This Article demonstrates why this system offends a constitutional mandate of legislative majoritarianism in light of well-established Framing-era understandings and governing substance-over-form principles of interpretation. Having established the presence of a …

Habeas Corpus Proceedings In The High Court Of Parliament In The Reign Of James I, 1603-1625, Donald E. Wilkes Jr.

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English parliamentary habeas corpus proceedings have been neglected by scholars. This Article ends that neglect. This Article focuses on the parliamentary habeas corpus proceedings that occurred in the reign of King James. The Article corrects several misunderstandings relating to the history of the writ of habeas corpus in England and to the history of the English Parliament (which in the seventeenth century commonly was referred to as the High Court of Parliament).

Part I of the Article provides answers to questions concerning the historical background and context of the parliamentary habeas corpus proceedings in the High Court of Parliament during …

Book Review, Economic Foundations Of International Law, By Eric A. Posner And Alan O. Sykes, Timothy L. Meyer

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This essay reviews Eric Posner’s and Alan Sykes’ Economic Foundations of International Law. In the last ten years or so, economic analysis of international law has established itself as a mainstream discipline, providing insights into why international law is structured as it is, the conditions under which it is effective, and how it might be improved. Economic Foundations consolidates and extends these insights. As such, the book is destined to be a starting place for economic analysis of international law. The book is divided into five parts. Part I provides an introduction to international law and the tools necessary to …

News @ Georgia Law, March 2014, Office Of Communications And Public Relations

News @ UGA School of Law

Students win National Moot Court Competition and "best of the best" national moot court tournament plus take top trophy at regional round of national mock trial competition; Georgia Law captures the ABA Tax Challenge top trophy; Appellate Litigation Clinic gains victory in court; Georgia Law finishes as semifinalists in Transactional LawMeet regional; School plans to offer new degree; Concourse named in honor of Kirbo family; Georgia Law hosted judicial ethics conference; Students organize music industry conference; Recent events held at Georgia Law focused on the intersection of public health and environmental law as well as public interest law; Meyer and …

The Post Office Banks On The Poor, Mehrsa Baradaran

Popular Media

Approximately 88 million people in the United States, or 28 percent of the population, have no bank account at all, or do have a bank account, but primarily rely on check-cashing storefronts, payday lenders, title lenders, or even pawnshops to meet their financial needs. And these lenders charge much more for their services than traditional banks. The average annual income for an “unbanked” family is $25,500, and about 10 percent of that income, or $2,412, goes to fees and interest for gaining access to credit or other financial services. But a possible solution has appeared, in the unlikely guise of …

The Hidden Daubert Factor: How Judges Use Error Rates In Assessing Scientific Evidence, John B. Meixner Jr., Shari Seidman Diamond

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In Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court provided a framework under which trial judges must assess the evidentiary reliability of scientific evidence whose admissibility is challenged. One factor of the Daubert test, the “known or potential rate of error” of the expert’s method, has received considerably less scholarly attention than the other factors, and past empirical study has indicated that judges have a difficult time understanding the factor and use it less frequently in their analyses as compared to other factors. In this paper, we examine one possible interpretation of the “known or potential rate of …

The Return Of Constitutional Federalism, Logan E. Sawyer Iii

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This article comments on National League of Cities v. Usery, 426 U.S. 833 (1976) and the role played by Justice Lewis F. Powell, Jr. It argues that the decision did not constitute any “return” to “constitutional federalism” and that, despite claims to the contrary, its inspiration came from the political goals of the Court’s conservative Justices. More specifically it argues that Justice Powell’s role was not influenced simply by contemporary critiques that undermined the “political safeguards of federalism” theory but, rather, that Justice Powell’s political views likely shaped both his understanding of the “political safeguards” thesis and his rejection of …

Corporate Governance Theory And Review Of Board Decisions, Christopher M. Bruner

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No abstract provided.

The Empty Promise Of Vara: The Restrictive Application Of A Narrow Statute, David E. Shipley

Scholarly Works

The Visual Artists Rights Act (VARA) was enacted by Congress in 1990 in order to bring our laws into compliance with Article 6bis of the Berne Convention and to acknowledge that protecting moral rights will foster “a climate of artistic worth and honor that encourages the author in the arduous act of creation.” The passage of this legislation is said to show Congress’s “belief that the art covered by the Act ‘meet[s] a special societal need, and [its] protection and preservation serves an important public interest.’”

Notwithstanding these lofty statements about artistic worth, honor and encouraging creation, VARA is a …

International Law And The Future Of Peace, Diane Marie Amann

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These remarks, delivered at the April 4, 2013, luncheon of the American Society of International Law Women in International Law Interest Group, reflects on contributions of Jane Addams and other members of the early 20th C. peace movement as a means to explore law and practice related to the contemporary use of force and armed conflict.

Crafting A Narrative For The Red State Option, Elizabeth Weeks Leonard

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This Article examines the current state of play following the Supreme Court's decision in NFIB v. Sebelius to allow states the option of expanding their Medicaid programs in accordance with the Patient Protection and Affordable Care Act (ACA). Holding that mandatory expansion was unconstitutionally coercive, the Court created the Red State Option. Despite the enormously generous federal financial support for Medicaid expansion, close to half of the states have declined. At the same time, at least eight Republican-led states have crossed Tea Party lines to accept federal funding for expansion. Drawing lessons from these states, including Arkansas, Arizona, Michigan, and …

It’S Time For Postal Banking, Mehrsa Baradaran

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This essay makes the case that the USPS is in a unique position to provide much-needed financial services for the large population of unbanked or underbanked Americans. First, the post office can offer credit at lower rates than fringe lenders by taking advantage of economies of scale as well as their position in the federal bureaucracy. Second, they already have branches in many low-income neighborhoods that have been long deserted by commercial banks. And, third, people at every level of society, including the unbanked, have a level of familiarity and comfort with the post office that they do not have …

The Prudential Third Party Standing Of Family-Owned Corporations, Matthew I. Hall, Benjamin Means

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On November 26, 2013, the Supreme Court agreed to decide whether for-profit corporations or their shareholders have standing to challenge federal regulations that implement the Patient Protection and Affordable Care Act (ACA). At issue in the two cases consolidated for appeal, Hobby Lobby and Conestoga Wood Specialties, are regulations mandating that employers with fifty or more employees offer health insurance that includes coverage for all contraceptives approved by the Food and Drug Administration (FDA). The plaintiffs assert that providing certain types of contraceptive care would be contrary to their religious beliefs and allege, therefore, that the mandate violates the Religious …

Disaggregative Mechanisms: The New Frontier Of Mass-Claims Resolution Without Class Actions, Jaime Dodge

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Aggregation has long been viewed as the primary if not sole vehicle for mass claims resolution. For a half-century, scholars have consistently viewed the consolidated litigation of similar claims through joinder, class actions and more recently multi-district litigation as the only mechanism for efficiently resolving mass claims. In this Article, I challenge that long-standing and fundamental conception. The Article seeks to reconceptualize our understanding of mass claims resolution, arguing that we are witnessing the birth of a second, unexplored branch of mass claims resolution mechanisms — which I term “disaggregative” dispute resolution systems because they lack the traditional aggregation of …

The Stealth Press Clause, Sonja R. West

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In this piece, however, I pause to push back on the conventional wisdom that the Court actually has refused to view the press as constitutionally special. Contrary to what we have been told, I contend the Supreme Court has indeed recognized the press as constitutionally unique from nonpress speakers. The justices have done so implicitly and often in dicta, but nonetheless they have continually and repeatedly treated the press differently. While rarely acknowledged explicitly, this "Stealth Press Clause" has been hard at work carving out special protections for the press,guiding the Court's analysis and offering valuable insights into how we …

Remanding Multidistrict Litigation, Elizabeth Chamblee Burch

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Multidistrict litigation has frequently been described as a “black hole” because transfer is typically a one-way ticket. The numbers lend truth to this proposition. As of 2010, the Judicial Panel on Multidistrict Litigation remanded only 3.425% of cases to their original districts. That number dwindled to 3.1% in 2012, and to a scant 2.9% in 2013. Retaining cases in hopes of forcing a global settlement can cause a constellation of complications. These concerns range from procedural justice issues over selecting a forum and correcting error, to substantive concerns about fidelity to state laws, to undermining democratic participation ideals fulfilled through …

Why Wynne Should Win, Dan T. Coenen

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In Maryland State Comptroller of the Treasury v. Wynne, the Court could reshape core features of dormant Commerce Clause law. Maryland’s theory in the case is that it can lay an income tax on every penny of an individual resident’s income even if some of that income is earned entirely outside the state and therefore, in keeping with standard state practice, already taxed elsewhere. On its face, this approach exposes interstate income earners to overlapping income taxation. Maryland’s scheme thus violates a cardinal principle of dormant Commerce Clause law, “forbidding” state laws that expose interstate commerce “to the risk …

Facilitative Judging: Organizational Design In Mass-Multidistrict Litigation, Jaime Dodge

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Faced with the emerging phenomenon of complex litigation—from school desegregation to mass torts—the judiciary of the last century departed from the traditional, purely adjudicative role in favor of managerial judging, in which they actively supervised cases and even became involved in settlement talks. I argue that a similar transition in judicial role is now occurring. I contend that transferee judges are now stepping back from active participation in settlement discussions but playing a far greater role in structuring and administering the litigation. This new judicial role focuses on facilitating the parties’ resolution of the case, whether through settlement or remand …

In-Sourcing Corporate Responsibility For Enforcement Of The Foreign Corrupt Practices Act, Larry D. Thompson

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In this article I first review our nation's long-standing and active aversion to corporate corruption overseas, as principally embodied in the Foreign Corrupt Practices Act. I then explain how achievement of the FCPA's goals is undermined by the uncertainty in current federal enforcement policies and the consequent ambivalence toward self disclosure exhibited by multinational corporations. Finally, I argue that the only realistic way to make up the shortcomings in FCPA enforcement that flow from the Justice Department's limited resources is to motivate corporations themselves to police corruption in their foreign subsidiaries by giving them a concrete incentive in the form …

Teaching “The Wire”: Crime, Evidence, And Kids, Andrea L. Dennis

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I have a confession: I have only watched Season 1 of The Wire, and it has been many years since I did that. Thus, both my knowledge and pedagogical use of the show are limited. What explanation can I offer for my failings? I am a Maryland native with family who resides in Baltimore City, or Charm City as it is affectionately called. I worked for several years as an assistant federal public defender in Baltimore City. Over time, I have seen the city evolve, and I have seen it chew up and spit out many good people and some …

The Effect Of The Jobs Act On Underwriting Spreads, Usha Rodrigues

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U.S. underwriting fees, or spreads, have somewhat inexplicably clustered around 7% for years, a phenomenon that some have suggested evidences implicit collusion. The goal of Title I the JOBS Act of 2012 was to make going public easier for smaller firms; certain provisions specifically should make the underwriters’ task less risky, and thus less expensive. Presuming these provisions are effective, then one would predict that underwriting spreads would decrease as the costs to the underwriter for a public offering declined. Admittedly the prior presumption is a big one: it may be that the JOBS Act reforms were largely ineffective, and …

Banking And The Social Contract, Mehrsa Baradaran

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This article asserts that there exists today and has always existed an interdependent relationship between banks and the state. I refer to this connection and its mutual benefits and responsibilities as a social contract. When Alexander Hamilton responded to President Washington’s inquiry about the advisability of a national bank, he wrote that “such a Bank is not a mere matter of private property, but a political machine of the greatest importance to the State.” This social contract has existed since the inception of banking in the United States and has been reinforced over time, but it has recently become weakened …

When Churches Reorganize, Pamela Foohey

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This Article combines an analysis of documents submitted in connection with Chapter 11 cases filed by religious organizations with the results of in-depth interviews with these organizations’ leaders and their bankruptcy attorneys to assess whether reorganization has the potential to offer an effective solution to these debtors’ financial distress. In doing, it makes three contributions. First, it identifies a subset of organizations that seemed more likely to turn to bankruptcy: small congregationalist and non-denominational churches, often with predominately African-American membership. The Article pinpoints salient questions about these churches’ access to credit and use of bankruptcy for future study. Second, it …

The Problem Of Abusive Related-Partner Allocations, Gregg D. Polsky, Emily Cauble

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This Article highlights a flaw in the existing rules regarding partnership tax allocations that has not yet received sufficient attention by existing literature. Namely, the partnership tax allocation rules are implicitly premised on the assumption that partners are unrelated and, thus, transact with each other at arm’s length. As a result, related partners can and do devise tax allocation schemes that exploit the gap in the current partnership tax allocation rules to achieve unwarranted tax savings.

This Article proposes to end this abuse by disallowing special allocations among related partners. Under the proposal, allocations among related partners would be required …

Ignorance, Harm, And The Regulation Of Performance-Enhancing Substances, Lisa Milot

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There is a disconnect between how legal and sporting authorities, on the one hand, and many elite athletes, on the other, view the use of performance-enhancing substances. While official and popular narratives portray the use of these substances as isolated examples of deviant behavior, to the elite athletes who daily push their bodies beyond societally normal limits of pain and risk, enhancement is oftentimes an accepted part of the job. As a result, efforts to regulate and detect athletes’ use of these substances have consistently captured only a small fraction of the use that exists.

This Article describes the ways …

The Great Writ In The Peach State: Georgia Habeas Corpus, 1865-1965, Donald E. Wilkes Jr.

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There is a plenitude of scholarly writing on the Great Writ of Habeas Corpus, which is universally recognized as "one of the decisively differentiating factors between our democracy and totalitarian governments."' The overwhelming majority of these scholarly publications are concerned with the writ of habeas corpus as administered in the federal court system. There are far fewer scholarly publications on the writ of habeas corpus as administered in the courts of the State of Georgia, and most of these works are concerned with Georgia habeas corpus as a state postconviction remedy, past and present. Only one scholarly piece, a law …

Encouraging Victims: Responding To A Recent Study Of Battered Women Who Commit Crimes, Andrea L. Dennis, Carol E. Jordan

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The article discusses evolution of social services and legal remedies for domestic violence. It reviews research done on domestic violence victims to find out factors that prevent victims from reporting the incident. It offers tips on how to motivate victims to report the incidence of domestic violence. It offers a new proposal targeting women who both suffer violence and have a criminal history.

To The Victor Goes The Toil -- Remedies For Regulated Parties In Separation-Of-Powers Litigation, Kent H. Barnett

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The U.S. Constitution imposes three key limits on the design of federal agencies. It constrains how agency officers are appointed, the extent of their independence from the President, and the range of issues that they can decide. Scholars have trumpeted the importance of these safeguards with soaring rhetoric. And the Supreme Court has permitted regulated parties to vindicate these safeguards through implied private rights of action under the Constitution. Regulated parties, for their part, have been successfully challenging agency structure with increased frequency. At the same time, regulated parties, courts, and scholars have largely ignored the practical question of “structural …