Law Commons^™

Evidence, Marc T. Treadwell

Mercer Law Review

This survey marks the fourteenth year the author has surveyed Eleventh Circuit evidence decisions. During these years there has been, in the author's opinion, an unmistakable trend-a trend that continued during the current survey period. In stark contrast to the days when the Eleventh Circuit rigorously examined district court evidentiary decisions and freely reversed those decisions, the Eleventh Circuit now carefully defers to district judges. The abuse-of-discretion standard that has always governed evidentiary issues on appeal now seems to be the standard of review in practice as well as in name.

Absent some action by Congress, the most extensive changes …

Chandler V. James: Welcoming Student Prayer Back In The Schoolhouse Gate, Sarah Beth Mabery

Mercer Law Review

In Chandler v. James, the Eleventh Circuit Court of Appeals vacated the district court's order permanently enjoining enforcement of an Alabama statute that permitted student-initiated religious speech in public schools. The court of appeals concluded that permitting student initiated religious speech did not violate the Establishment Clause and such speech is protected by the Free Exercise and Free Speech Clauses of the First Amendment.

Kumho Tire Co. V. Carmichael: Daubert'S Gatekeeping Method Expanded To Apply To All Expert Testimony, Jeanne Wiggins

Mercer Law Review

In Kumho Tire Co. v. Carmichael, the United States Supreme Court held that while the Daubert factors for determining the admissibility of expert testimony are neither determinative nor exhaustive, the gatekeeping function articulated in Daubert requires an examination of the reliability of all types of expert testimony and is not limited in application to scientific expert testimony.

Personal Jurisdiction And The Internet: Waiting For The Other Shoe To Drop On First Amendment Concerns, Brian E. Daughdrill

Mercer Law Review

Believing that First Amendment concerns already receive sufficient protection from any "chilling effect," the Supreme Court has held that personal jurisdiction analysis should not contain additional levels of scrutiny in speech-oriented cases. Reasoning that the "actual malice" requirement for public figures enunciated in New York Times, Inc. v. Sullivan was sufficient protection, the Court has been content to analyze personal jurisdiction over nonresident defendants within the established but "imprecise inquiry," even when the defendant's speech or expression may be penalized by a claim for damages.

Enter Internet-based contacts. Courts attempting to impose traditional personal jurisdiction analysis on Internet-related contacts have …

Just Hangin' Around: Gangs And Due Process Vagueness In City Of Chicago V. Morales, Jerritt Farrar

Mercer Law Review

In City of Chicago v. Morales, the Supreme Court revisited the issue of the constitutionality of municipal and state loitering laws. In this case the Court was presented with a Chicago municipal ordinance that prohibited individuals from loitering with known gang members. The Court struck down the ordinance as overly vague under the Due Process Clause of the Fourteenth Amendment. It found that the law gave too much discretion to police officers charged with its enforcement and did not define its crucial terms specifically enough. The Court was closely divided, however, and both the concurring and dissenting Justices gave …

Greater New Orleans Broadcasting Ass'n V. United States: A Retreat From Full First Amendment Protection For Commercial Speech, Frances Clay

Mercer Law Review

In Greater New Orleans Broadcasting Ass'n v. United States, the United States Supreme Court considered whether 18 U.S.C. § 1304 which prohibits the broadcast of gambling advertisements, violated First Amendment protection of commercial speech—speech related only to the speaker's and the audience's economic interests—when applied to broadcast advertisements within states that have legalized casino gambling. Many critics expected, and perhaps hoped, the Supreme Court would seize this opportunity to discard, or at least drastically modify, the Central Hudson balancing test that the Court has used in commercial speech cases for almost twenty years. The Court refused to do so, …

Powell V. State: The Demise Of Georgia's Consensual Sodomy Statute, Gregory K. Smith

Mercer Law Review

In Powell v. State, the Supreme Court of Georgia held that section 16-6-2 of the Official Code of Georgia Annotated ("O.C.G.A."), which criminalizes sodomy, violates the right to privacy guaranteed by the Georgia Constitution. The court found that the right to engage in private, unforced, consensual, noncommercial sexual acts is included within the meaning of the Due Process Clause of the Georgia Constitution.

Holloway V. United States: Conditional V. Unconditional Intent To Kill, Michael Douglas Owens

Mercer Law Review

In Holloway v. United States, the United States Supreme Court held that the "intent to kill" element in the federal cajacking statute was satisfied by a mere conditional intent to kill. The Court reasoned that a common-sense reading of the statute indicated Congress's attempt to include the mens rea of both unconditional and conditional intent.

Wyoming V. Houghton: Passengers' Belongings Subject To Searches Under The "Automobile Exception" To The Fourth Amendment's Warrant Requirements, Theresa H. Hammond

Mercer Law Review

In Wyoming v. Houghton the United States Supreme Court addressed the constitutionality of conducting a warrantless search of a container under the "automobile exception" to the Fourth Amendment's warrant requirement. The Court held that when police officers have probable cause to search a vehicle, they may also search any container found in the car, including passengers' belongings, that are capable of concealing the object of the search.

Mt. Healthy And Causation-In-Fact: The Court Still Doesn't Get It!, Sheldon Nahmod

Mercer Law Review

Over fifteen years ago, I argued in a prior edition of my section 1983 treatise that the second burden-shift part of the Mt. Healthy test, articulated by the Supreme Court in 1977, should go only to damages and not to liability. I also argued that this causation-in-fact rule should not be limited to Mt. Healthy-type First Amendment employment cases, but should apply to constitutional damages actions generally and equal protection cases in particular. I remain convinced that both aspects of this position are normatively sound, even if no longer good law, in light of the Court's end-of-the-millennium decision in …

"Mixed-Motive" Discrimination Under The Civil Rights Act Of 1991: Still A "Pyrrhic Victory" For Plaintiffs?, Thomas H. Barnard, George S. Crisci

Mercer Law Review

One of the many statutory changes brought about by the Civil Rights Act of 1991 involved an effort to overturn the United States Supreme Court's decision in Price Waterhouse v. Hopkins. In that case, the Supreme Court held that when the plaintiff shows that an impermissible factor (e.g., race or gender) played a motivating role in an employment decision, the employer still can avoid liability by proving that it would have made the same employment decision in the absence of the impermissible factor.

Congress responded by amending Title VII of the Civil Rights Act of 1964 so that the …

Resolving The Conflict Between Receipt And Proper Service: Murphy Bros. V. Michetti Pipe Stringing, Inc., Jennifer N. Moore

Mercer Law Review

In Murphy Bros. v. Michetti Pipe Stringing, Inc., the United States Supreme Court resolved the conflict over what event triggers the removal period under 28 U.S.C. § 1446(b), proper service or receipt of a copy of the complaint. The Court held proper service begins the removal period.

Three Arguments Against Mt. Healthy: Tort Theory, Constitutional Torts, And Freedom Of Speech, Michael Wells

Mercer Law Review

Mt. Healthy City School District Board of Education v. Doyle is among the most important, and least discussed, cases in constitutional tort law. It stands for the abstract principle that the "but-for" rule of causation, which is the usual test in common-law torts, applies in constitutional tort suits as well. To understand the principle and its implications, it is helpful to have in mind a concrete example of its application, and Mt. Healthy provides as good an illustration as any other case. Doyle, a nontenured school teacher, quarreled with another teacher, with school employees, and with students. Two specific incidents …

An Essay On Texas V. Lesage, Christina B. Whitman

Mercer Law Review

When I was invited to participate in this symposium, I was asked to discuss whether the causation defense developed in Mt. Healthy City School District Board of Education v. Doyle applied to cases challenging state action under the Equal Protection Clause of the Fourteenth Amendment. As I argue below, it seems clear that Mt. Healthy does apply to equal protection cases. The Supreme Court explicitly so held last November in Texas v. Lesage. But the implications of Lesage go beyond questions of causation. The opinion suggests that the Court may be rethinking (or ignoring) its promise in Carey v. …

Price Waterhouse: Alive And Well Under The Age Discrimination In Employment Act, H.Lane Dennard Jr., Kendall L. Kelly

Mercer Law Review

Judicial application of the Age Discrimination in Employment Act of 1967 ("ADEA") may be the most divergent of the employment discrimination laws because the ADEA is a hybrid of two statutes: Title VII of the Civil Rights Act of 19642 ("Title VII") and the Fair Labor Standards Act of 1938 ("FLSA"). The ADEA incorporates only selected portions of each of these statutes. For example, the general prohibition against age discrimination contained in the ADEA parallels the substantive provisions of Title VII, while the remedial provisions mirror, at least in part, the FLSA. Courts, however, have generally approached the ADEA in …

The Mixed-Motive Defense In Workplace Discrimination Actions And Its Procedural Issues In The Eleventh Circuit, Richard A. Weller

Mercer Law Review

Being fired from one's place of employment is an unfortunate incident that many Americans face on one or more occasions during their lifetimes. Discharged employees obviously experience some degree of economic loss by losing salaries and benefits. Even when rightfully discharged, employees may suffer emotional and psychological harm because of their perceived failure. This harm may be magnified when the employee has been discharged for wrongful, illegal reasons.

However, in some cases an employer may have legitimate, legal reasons to terminate an employee and simultaneously have illegal, discriminatory reasons. In such a "mixed-motives" situation, employers may be able to limit …

Rainey V. Chever: Expanding A Natural Father's Right To Inherit From His Illegitimate Child, Elizabeth G. Long

Mercer Law Review

In Rainey v. Chever, the Georgia Supreme Court held unconstitutional section 53-2-4(b)(2) of the Official Code of Georgia Annotated ("O.C.G.A."), which required that before a natural father could inherit through his illegitimate child, the natural father had to either openly treat the child as his own or provide support for the child. Coming up only one vote short, the United States Supreme Court denied plaintiff's petition for writ of certiorari. The three dissenting Justices declared their belief that Georgia's statute addressed the "alarming trend" of outof- wedlock births.5 Furthermore, the dissenting Justices asserted that because of the "substantial tension" …

Sutton V. United Air Lines, Inc.: The Role Of Mitigating Measures In Determining Disabilities, Julia J. Hall

Mercer Law Review

In Sutton v. United Air Lines, Inc., the United States Supreme Court held that the determination of "disability" under the Americans with Disabilities Act of 1990 ("ADA") requires a consideration of any mitigating or corrective measures. The Court further held that an individual is "regarded as" disabled under the ADA if a covered entity mistakenly believes that the individual's actual, yet nonlimiting, impairment substantially limits a major life activity. This Casenote focuses only on the issue of whether the determination of disability under the ADA should be made with reference to any mitigating measures for the impairment.

Mt. Healthy, Causation And Affirmative Defenses, Joseph Z. Fleming

Mercer Law Review

In Mt. Healthy City School District Board of Education v. Doyle, the Supreme Court established a rule of causation to distinguish between a result caused by a constitutional violation and one not so caused by establishing "the proper test ... which likewise protects against invasion of constitutional rights without commanding undesirable consequences not necessary to the assurance of those rights." Reconciling such inconsistencies is similar to the type of situation that has confounded physicists trying to achieve a unified field theory-a theory capable of describing nature's forces within a single, all-encompassing, coherent framework. Physicists since Einstein have sought such …

Mixed-Motive Cases On Employment Discrimination Law Revisited: A Brief Updated View Of The Swamp, Robert Belton

Mercer Law Review

In 1973 the Supreme Court enunciated an analytical framework in McDonnell Douglas Corp. v. Green with the purpose of providing plaintiffs in statutory employment discrimination cases a full and fair opportunity to prove intentional discrimination despite the unavailability of direct evidence. The McDonnell Douglas framework is used primarily in cases litigated under the disparate treatment theory of discrimination and is based upon presumptions and burden-shifting schemes. McDonnell Douglas was the predominant analytical framework for statutory employment discrimination cases until the Supreme Court decided Price Waterhouse v. Hopkins in 1989. ...

Congress overturned the fundamental holding of Price Waterhouse in the …

Chaos Or Coherence: Individual Disparate Treatment Discrimination And The Adea, Michael J. Zimmer

Mercer Law Review

Individual disparate treatment law appears to be in a chaotic state. The one clear thrust is that the Supreme Court's jurisprudence in the area, and even Congress's most recent amendments to Title VII, no longer govern the field alone. This chaos, however, may be the prelude to a new coherence. That possibility is the point of this Article, which will explore it from the viewpoint of the Age Discrimination in Employment Act ("ADEA").

Part I sets the stage by describing the initial failure of Justice Brennan's attempt in Price Waterhouse v. Hopkins to supplant the preexisting framework established in McDonnell …

Seay V. Cleveland: Resolution Of The Ministerial Discretionary Dichotomy, Franklin D. Guerrero Jr.

Mercer Law Review

In 1992 the Georgia State Legislature passed the Georgia State Tort Claims Act ("GTCA") which waived the state's sovereign immunity. The GTCA defines "state" as the "State of Georgia and any of its offices, agencies, authorities, departments, commissions, boards, divisions, instrumentalities, and institutions" but the statute specifically excludes "counties, municipalities, school districts, other units of local government, hospital authorities, or housing and other local authorities." Under the GTCA a discretionary function or duty is specifically defined by statue. However, the common law distinction between ministerial and discretionary functions still applies to all entities exempted from the GTCA.