Law Commons^™

Making Lease Payments A Lessor Problem, Devin C. Berrigan

Georgia Law Review

The frustration of purpose doctrine is a contracts defense that has garnered increased interest since the COVID-19 pandemic’s initial wave. To manage this public health emergency, many governments have issued orders restricting the operation of businesses. These orders, while necessary, put commercial lessees in a bind once it came time to pay rent because these restrictions drastically cut their profits. Other frustrating events, like war and natural disasters, cause the same problems, yet the current frustration of purpose doctrine is too narrow to be practically helpful to these lessees. This Note examines the English and Canadian frustration doctrines and draws …

Does It Sparc Joy? Cleaning Up The Spac Space, G. Max Miseyko

Georgia Law Review

For the last few years, the special purpose acquisition company—SPAC—was one of the hottest investment trends on Wall Street. In a SPAC, an investment vehicle with a limited lifespan (usually two years), a sponsor raises money from investors up front with the goal of finding a target company to take public via a reverse merger with a publicly traded shell company. Once touted as a democratized way to access public markets that avoids the rigors associated with traditional initial public offerings (IPOs), those characterizations came under fire in 2021 as academics and regulators spotlighted the hidden costs and misaligned incentives …

The Crossover Event From Hell: Evidence, Admissibility, And Truth When Reality Television Meets Criminal Prosecution, K. L. Renner

Georgia Law Review

Erika Girardi has played many roles: Real Housewives star, pop singer, Broadway performer. But Girardi’s new role as a party in a host of lawsuits related to her husband’s alleged embezzlement of client settlement funds may be her most difficult yet. For years, Girardi and her spending habits were closely documented by television cameras and broadcasted to millions of viewers. When news of Girardi’s legal troubles broke, a question emerged: if Girardi were to face criminal charges in connection with her husband’s misdeeds, would prosecutors be able to use years of footage of Girardi to help their cases?

While evidence …

Because They Are Lawyers First And Foremost: Ethics Rules And Other Strategies To Protect The Justice Department From A Faithless President, Stephen Gillers

Georgia Law Review

During the Trump presidency, Americans were reminded that the nation relies on norms or custom—not laws alone—to protect the Department of Justice and the rule of law from improper political interference. The Justice Department is an agency within the Executive Branch and the Supreme Court has told us that the executive power—“all of it”—resides in the President alone, implying that the President can use the Department anyway he wishes limited only by the Constitution and by laws that do not violate separation of powers principles. Which laws are those? This Article concludes that Congress can do only a little to …

Is Your Socially Responsible Investment Fund Green Or Greedy? How A Standard Esg Disclosure Framework Can Inform Investors And Prevent Greenwashing, Cara Beth Musciano

Georgia Law Review

As environmental, social, and governance (ESG) investing exponentially increases, so does the level of inconsistent ESG disclosures, adding to investor confusion. Without any mandates for standardization, companies will continue disclosing their sustainability efforts without concrete facts behind their subjective claims in hopes that they will appear “greener” to investors. This practice—known as greenwashing—could become prevalent, resulting in capital intended for sustainable investments flowing toward harmful businesses investors sought to avoid. Regulators should develop a mandatory ESG disclosure framework to create accurate, reliable data and to prevent capital from being misallocated against investors’ genuine sustainable efforts. Some existing rules could hold …

Contracts Without Courts Or Clans: How Business Networks Govern Exchange, Sadie Blanchard

Georgia Law Review

Legal scholars have long recognized the close-knit community as an alternative means of supporting trade when contract law and trusted courts cannot. But recent research suggests that another option may be available: heterogeneous business networks. What is interesting is that these networks lack features traditionally seen as essential to community-supported trade. In particular, they lack preexisting social ties that allow reliable information to spread at low cost, make exiting the trade difficult, and enable the coordinated sanctioning of cheaters. As a result, some leading scholars have come to doubt that these networks are capable of sustaining cooperation.

This Article offers …

Democratic Renewal And The Civil Jury, Richard L. Jolly, Valerie P. Hans, Robert S. Peck

Georgia Law Review

The United States is in a period of democratic decline. Waning commitment to principles of self-governance throughout the polity necessitates urgent action to revitalize the Republic. The civil jury offers an often-overlooked avenue for such democratic renewal. Welcoming laypeople into the courthouse and deputizing them as constitutional actors demonstrates a profound faith in representative governance and results in wide-reaching and pronounced sociopolitical and administrative benefits. The Seventh Amendment of the U.S. Constitution and similar state provisions protect the rights of litigants to jury trials in most circumstances. But these promises have been hollowed over time through legal, political, and practical …

Safeguarding America’S “Unnatural” Guardians: How Georgia’S Legal Guardianship Statute Excludes “Atypical,” Matriarchal Familial Structures Rooted In Black Culture, Destiny B. Barnett

Georgia Law Review

The stereotypical American family is often seen as one man, one woman, and their child. However, this notion of the traditional family is changing. For centuries, familial matriarchs have assumed roles typically reserved for a child’s biological parents. Specifically, African American grandmothers, aunts, and other female figures have served as kinship caregivers for countless generations of children dating back to before the period of American slavery. These forgotten matriarchs, who often serve as the foundation of African American family units, have been historically abandoned by our universalist legal system that idolizes the nuclear concept of family and favors the retention …

A Short Treatise On College-Athlete Name, Image, And Likeness Rights: How America Regulates College Sports’ New Economic Frontier, John T. Holden, Marc Edelman, Michael Mccann

Georgia Law Review

For the past seventy years, intellectual property law’s right of publicity has allowed for celebrities to monetize their names, images and likenesses for commercial gain. Until recently, the National Collegiate Athletic Association’s (NCAA) internal Principle of Amateurism excluded college athletes from the endorsement marketplace, keeping the wealth of college sports in the hands of a select few administrators, athletic directors, and coaches.

Following years of mounting pressure from the college-athletes’ rights movement, a number of states recently announced new laws to ensure college athletes the right to endorse products free from NCAA interference. As such, the NCAA begrudgingly relented on …

Table Of Contents

Georgia Law Review

No abstract provided.

Table Of Contents

Georgia Law Review

No abstract provided.

The Color Of Pain: Racial Bias In Pain And Suffering Damages, Maytal Gilboa

Georgia Law Review

For more than half a century, our legal system has formally eschewed race-based discrimination, and nearly every field of law has evolved to increase protections for minority groups historically burdened by racial prejudice. Yet, even today, juries in tort actions routinely consider a plaintiff’s race when calculating compensatory tort damages, and they do so in a manner that systematically results in lower awards to Black plaintiffs than to White. This Article examines this problem, zeroing in on the specific issue of racial bias in calculations of tort damages for pain and suffering.

The severity of a plaintiff’s injury is commonly …

The Double-Side Of Deepfakes: Obstacles And Assets In The Fight Against Child Pornography, Abigail Olson

Georgia Law Review

Deepfake technology recently took the internet by storm. Although they can be used for both innocuous and nefarious purposes, deepfakes overwhelmingly depict people who appear to be creating nonconsensual pornography. The rise of deepfake technology must be accounted for in the existing federal legal framework, specifically in cases implicating images of children. While deepfakes’ malicious uses ought to be criminalized, exceptions should be made to use deepfake technology as a tool to enforce and deter purveyors of child pornography. This Note explores what the emerging legal framework addressing deepfakes should look like and considers the importance of using the “flipside” …

No [Concrete] Harm, No Foul? Article Iii Standing In The Context Of Consumer Financial Protection, Annefloor J. De Groot

Georgia Law Review

In the U.S. Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins, the Court held that a bare procedural violation of a federal consumer protection statute is not enough to satisfy Article III’s standing requirement because the alleged injury is not sufficiently concrete. This decision resulted in a sizeable circuit split regarding standing under the Fair Debt Collection Practices Act, with some circuit courts interpreting the holding as narrowing the scope of standing for consumer protection claims, and others maintaining a broader interpretation, allowing plaintiffs to obtain redress for violations of consumer financial protections laws.

In its 2021 ruling in …

Table Of Contents

Georgia Law Review

No abstract provided.

Hiv No Longer A Death Sentence But Still A Life Sentence: The Constitutionality Of Hiv Criminalization Under The Eighth Amendment, Lauren Taylor

Georgia Law Review

When the HIV/AIDS epidemic began in the 1980s in the United States, there was mass confusion and hysteria regarding HIV transmission and prevention, leading many states to enact HIV criminalization statutes to prosecute persons living with HIV who either exposed another person to HIV or put someone in danger of being exposed to HIV. Yet, almost forty years later, these statutes are still used to criminalize and control the behaviors of people living with HIV, and in some cases, impose lengthy prison sentences hinging on the possibility of exposure. These HIV criminalization statutes and subsequent criminal cases often do not …

Centering Noncitizens' Free Speech, Gregory P. Margarian

Georgia Law Review

First Amendment law pays little attention to noncitizens’ free speech interests. Perhaps noncitizens simply enjoy the same First Amendment rights as citizens. However, ambivalent and sometimes hostile Supreme Court precedents create serious cause for concern. This Essay advocates moving noncitizens’ free speech from the far periphery to the center of First Amendment law. Professor Magarian posits that noncitizens epitomize a condition of speech inequality, in which social conditions and legal doctrines combine to create distinctive, unwarranted barriers to full participation in public discourse. First Amendment law can ameliorate speech inequality by promoting an ethos of free speech obligation, amplifying the …

Facebook, Crime Prevention, And The Scope Of The Private Search Post-Carpenter, Connor M. Correll

Georgia Law Review

The Fourth Amendment of the U.S. Constitution protects people “against unreasonable searches and seizures.” The private search doctrine provides a notable exception to the Fourth Amendment, providing that the government may reconstruct a search previously performed by a private party without first obtaining a warrant. The U.S. Supreme Court developed the private search doctrine prior to the advent of the internet; however, modern technology has changed the way that individuals live. What was once done entirely in private is now done alongside ever-present third parties, such as cell phones and virtual assistants.

Facebook and other social media sites complicate Fourth …

Portraits Of Bankruptcy Filers, Pamela Foohey, Robert M. Lawless, Deborah Thorne

Georgia Law Review

One in ten adult Americans has turned to the consumer bankruptcy system for help. For almost forty years, the only systematic data collection about the people who file bankruptcy has come from the Consumer Bankruptcy Project (CBP), for which we serve as co-principal investigators. In this Article, we use CBP data from 2013 to 2019 to describe who is using the bankruptcy system, providing the first comprehensive overview of bankruptcy filers in thirty years. We use principal component analysis to leverage these data to identify distinct groups of people who file bankruptcy. This technique allows us to situate the distinctions …

Rethinking Countercyclical Financial Regulation, Jeremy C. Kress, Matthew C. Turk

Georgia Law Review

The 2008 financial crisis exposed a longstanding problem in financial regulation: traditional regulatory strategies tend to be procyclical. That is, regulatory tools—most notably, bank capital requirements—incentivize excessive credit growth during economic expansions and insufficient lending during contractions. The procyclicality of U.S. financial regulation was a key driver of the housing bubble in the mid-2000s and the massive credit crunch that followed. To combat this phenomenon, Congress and the federal banking agencies attempted to mitigate procyclical boom-and-bust cycles by implementing regulatory approaches that were explicitly countercyclical. The Dodd-Frank Act and related post-crisis reforms included several countercyclical features that were designed to …

Uzuegbunam V. Preczewski, Nominal Damages, And The Roberts Stratagem, Michael Wells

Georgia Law Review

In Uzuegbunam v. Preczewski the Supreme Court held for the first time that federal-court jurisdiction exists over a § 1983 case that presents only a claim for nominal damages. As a result, such claims remain subject to adjudication even when the plaintiff’s request for prospective relief, targeting an allegedly unlawful practice, has been mooted by the government’s discontinuance of the thus-challenged behavior. In dissent, Chief Justice Roberts maintained that the majority’s ruling clashed with Article III’s “personal stake” requirement and also unwisely permitted plaintiffs to sidestep controlling jurisdictional rules by adding a meaningless claim for nominal damages to a complaint …

Anticompetitive Merger Review, Samuel N. Weinstein

Georgia Law Review

U.S. antitrust law empowers enforcers to review pending mergers that might undermine competition. But there is growing evidence that the merger-review regime is failing to perform its core procompetitive function. Industry concentration and the power of dominant firms are increasing across key sectors of the economy. In response, progressive advocates of more aggressive antitrust interventions have critiqued the substantive merger-review standard, arguing that it is too friendly to merging firms. This Article traces the problem to a different source: the merger-review process itself. The growing length of reviews, the competitive restrictions merger agreements place on acquisition targets during review, and …

No Motion Left Behind: Adjudicating Motions To Remand In Cases Snap Removed To Mdls, Millie Price

Georgia Law Review

Under the current wording of the federal removal statute, 28 U.S.C. § 1441, defendants in some jurisdictions may remove a state action to federal court before an in-state defendant is served. These defendants are taking advantage of the forum defendant rule in 28 U.S.C. § 1441(b)(2). This phenomenon has been coined “snap removals.” Three federal courts of appeals allow such removals, whereas many federal district courts say it is improper. The “home” district court might not be the end point for the case, though. Corporate defendants often ask for the case to be transferred to a pending Multidistrict Litigation (MDL) …

A First Amendment Law For Migrant Emancipation, Daniel Morales

Georgia Law Review

The First Amendment promises to change our world, but like any legal doctrine, its radical potential is stymied by the status quo bias of the legal system that administers it. For migrants, I urge here, this guarantor of free speech and expression does even less than it does for other subordinated groups. The formal and informal disabilities that migrants face in the public square—like the omnipresent threat of deportation—make existing First Amendment doctrine a weak and unreliable ally in the fight for migrants’ rights. It is possible to imagine another, emancipatory First Amendment law that might better facilitate the alteration …

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 …

Fear Foreigners, And Free Expression: A Brief Reflection On Ideological Exclusion And Deportation In The United States, Julia Rose Kraut

Georgia Law Review

“Why should we be afraid of this man and his ideas?” asked Secretary of State William P. Rogers, referring to Belgian, Marxist economist Ernest Mandel.1 In 1969, Mandel applied for a nonimmigrant visa to visit the United States after receiving invitations to speak at several American colleges and universities, including Amherst College, Columbia University, Princeton University, Massachusetts Institute of Technology, and the New School for Social Research.2 Mandel had received visas to visit the United States twice before: one in 1962 and another in 1968.3 Yet, this time, Mandel’s application for a visa was denied.4

The State Department informed Mandel …

Jus Sanguinis Or Just Plain Discrimination? Rejecting A Biological Requirement For Birthright Citizenship Of Children Born Abroad To Same-Sex Couples Via Assisted Reproductive Technology, Thomas Evans

Georgia Law Review

Until recently, the State Department had a policy deeming children born abroad to married same-sex couples to be children born out of wedlock. Then, applying the statute for children born out of wedlock with more rigorous requirements, the State Department only allowed citizenship to pass through a biological relationship between the biological parent and the child.

Although the State Department updated this policy in May 2021 to allow for birthright citizenship of children born abroad to married same-sex couples, the new policy does not go far enough. This Note argues that Congress should amend the Immigration and Nationality Act to …

Discrimination, Trump V. Hawaii, And Masterpiece Cakeshop, Christopher C. Lund

Georgia Law Review

This short symposium piece is a comment on two of the Supreme Court’s recent religion cases. The first is Trump v. Hawaii, the travel ban case, where the Court rejected the claim of unconstitutional religious discrimination against Muslims.1 The second is Masterpiece Cakeshop, the case about the baker who refused to make a cake for a gay wedding, where the Court accepted the claim of unconstitutional religious discrimination against a conservative Christian.2 One case finds discrimination, while the other rejects it. Yet more fundamentally, the pairing suggests differences in how we perceive or react to evidence of discrimination. Both on …

Regulatory Constitutional Law: Protecting Immigrant Free Speech Without Relying On The First Amendment, Michael Kagan

Georgia Law Review

The Supreme Court has long deprived immigrants of the full protection of substantive constitutional rights, including the right to free speech, leaving undocumented immigrants exposed to detention and deportation if they earn the government’s ire through political speech. The best remedy for this would be for the Supreme Court to reconsider its approach. This Essay offers an interim alternative borrowed from an analogous problem that arises under the Fourth Amendment. Under the Constitution, the Supreme Court has indicated that illegally obtained evidence may be suppressed in a removal proceeding only if the Fourth Amendment violation was “egregious.” Yet, some circuit …

Complicated Mercy: Compensating The Wrongfully Convicted In Georgia, Elizabeth O'Roark

Georgia Law Review

An exoneree’s story does not end when they walk out of prison and back into society. After spending years in prison for a crime they did not commit, the exoneree must rebuild a life with years of lost income, little credit, and no retirement. Georgia is one of the few states that does not have a statute setting out how to fairly and efficiently compensate its exonerees. Exonerees must instead ask state representatives to present a resolution to the General Assembly. If the resolution passes through both chambers of the legislature, then the exoneree can receive some compensation for the …