Law Commons^™

Cost Allocation In Title Vii Remedies: Who Pays For Past Employment Discrimination, Fran Ansley

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No abstract provided.

Attacking Jury Verdicts: Paradigms For Rule Revision, Ronald L. Carlson, Steven M. Sumberg

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The rule that a juror cannot impeach his own verdict has been applied inconsistently by the courts. This article describes the majority rule, known as the Mansfield or no-impeachment rule, and examines its origin and supporting policies. It then presents minority rules, questions posed by post-verdict interviewing of jurors, and procedural problems that accompany the impeachment of verdicts. The article also analyzes the recent erosion of the Mansfield rule and suggests that an exception to the rule should be made to allow a juror to impeach his own verdict by proving that he was threatened.

Probing The Discriminatory Effects Of Employee Selection Procedures With Disparate Impact Analysis Under Title Vii, Elaine W. Shoben

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Last term the Supreme Court handed down three decisions in which it defined with some precision the proper use of statistics in Title VII cases. Those decisions filled a void that had existed since Griggs v. Duke Power Co., but they left some questions unanswered. In this article Professor Shoben discusses those decisions and addresses the issues still unresolved. She proposes a structured framework for the systematic analysis of disparate impact cases that is consistent with, yet builds upon, the three recent decisions. In addition, Professor Shoben considers whether allowing a plaintiff to establish a prima facie case with …

Choice Of Forum And Public Policy: Some Indications Of The Development In United States Law Of A Distinct "International" Public Policy, Gabriel M. Wilner

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In this decade, the United States Supreme Court decided two cases which revolved around the enforceability of choice of forum clauses contained in transnational commercial contracts. The decisions which the Court rendered reshaped significantly the legal contours of the enforceability of such clauses. In the two cases, the Court signaled that it was prepared to recognize the distinction between what may be termed "internal" public policy and what may be termed "international" public policy. The recognition of this distinction is likely to have a vital bearing on the right of persons to provide for a specific foreign judicial or arbitral …

A Commerce Power Seesaw: Balancing National League Of Cities, J. Ralph Beaird, C. Ronald Ellington

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This Article seeks to explore the developing principles of state sovereignty limitations on Congress’ exercise of its granted powers and the potential conflicts in reconciling the enforcement of strong federal policy interests with the allowance to the states of primary control over certain governmental functions. Since both tenth and eleventh amendment questions were raised by the application of the Fair Labor Standards Act’s ever broadening coverage to state employees and its grant of federal court jurisdiction over enforcement suits, and since the Act precipitated the League of Cities decision, the Court’s treatment of the Act will serve as the primary …

"A Most Deplorable Paradox": Admitting Illegally Obtained Evidence In Georgia--Past, Present, And Future, Donald E. Wilkes Jr.

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This Article explores the admissibility of illegally obtained evidence in Georgia criminal cases prior to 1961 and during the post-Mapp era and endeavors to assess the future admissibility of illegally seized evidence in Georgia under both federal and state law.

Criminal Law In Tennessee In 1975: A Critical Survey, Joseph G. Cook

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No abstract provided.

Nineteenth Century Anti-Entrepreneurial Nuisance Injunctions--Avoiding The Chancellor, Paul M. Kurtz

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This Article will explain how the 19th-century entrepreneur, faced with a hostile rule of strict liability for interference with the use and enjoyment of property, avoided the heavy hand of the chancellor's injunction. Although the term "entrepreneur" describes a diverse group of businessmen--from the mill owner to the early 19th century to the slaughterhouse operator of later in the century--the denominator common to all nuisance action in this period was a developmental use of real property that interfered with the use of neighboring property. An examination of the responses of courts to private nuisance suits between an individual property owner …

Legal Malpractice: A Calculus For Reform, Fredrick W. Huszagh, Donald W. Molloy

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Our most distinguished professions do not maintain congruency between membership standards and actual performance. This deficiency is manifest; spiraling malpractice litigation witnesses a substantial increase in both the number of suits and the amount of recovery. Neither the professions nor public can long endure this trend. Governmental and possibly lay intervention in profession affairs is imminent unless the professions move decisively to understand better the dynamics of malpractice and do excise its causes. This article examines professional malpractice and existing responses to it, relates various cases in a calculus that can be employed to anticipate systemic patterns of malpractice, and …

Claiming Illegal Electronic Surveillance: An Examination Of 18 U.S.C. 3504(A)(1), Margaret V. Sachs

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This Comment will first discuss the making of claims under section 3504(a)(1), and will show that the statute should not be read to require that claims be accompanied by evidentiary support. It will then suggest that the statute should be read to encompass claims of attorney-third party conversations. Finally, the scope of the government's response to section 3504(a)(I) claims will be examined.

Remembering Recall In Local Government Law, R. Perry Sentell Jr.

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Inherent in a system of representative government is the thesis that if those who "represent" do not fulfill the promise or expectation, those who are "represented" must possess the leverage of a remedy. The most obvious of such remedies, of course, is resort to the ballot box at the conclusion of the representative's term of office. The extent to which more drastic remedies are desirable is a provokinig point of perplexity, for few have yet satisfactorily resolved the conundrum of how much pure democracy stability in government can accommodate. The procedure of recall is undeniably one of the more drastic …

School Desegregation -- Failure To Revamp Segregated School District Attenuates The Milliken V. Bradley Barrier To Federal Interdistrict Remedies United States V. Missouri, 515 F.2d 1365 (8th Cir.), Cert. Denied, 96 S. Ct. 374 (1975), James C. Smith

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Kinloch School District, small and all-black, adjoins the predominantly white Berkeley and Ferguson-Florissant School Districts in St. Louis County, Missouri. Kinloch and Berkeley had comprised one district until 1937, when they split along racial lines. In 1971 the United States, pursuant to Title IV of the Civil Rights Act of 1964 and the fourteenth amendment, commenced a school desegregation action against the State of Missouri, the State and county boards of education, the three school districts, and several public officials. The district court concluded that all the defendants had unlawfully maintained Kinloch as a racially segregated school district. After reviewing …

Is Georgia On Their Minds?--Some Legal Aspects Of Investment And Trade By Foreign Business Enterprises, Gabriel M. Wilner, Terry K. Smith

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This article will focus on the legal environment within the State in regard to foreign investment and trade. In making this survey it is also necessary to note briefly the full context in which foreign investment and trade is accomplished. The State cannot act or fail to act in areas dictated by the economic, political, and social philosophies held by its citizens. Likewise, the State cannot act in areas in which the Federal Government has acted pursuant to the United State Constitution. Among the areas in which the State is prohibited or preempted from acting are foreign affairs, especially in …

State Taxation Of Interstate Business And The Supreme Court, 1974 Term: Standard Pressed Steel And Colonial Pipeline, Walter Hellerstein

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It was an item of more than routine interest when the Supreme Court, late in the 1973 term, noted probable jurisdiction in two cases raising issues of central importance with respect to state tax power over interstate business. Standard Pressed Steel Co. v. Department of Revenue presented critical questions concerning due process and commerce clause limitations on a state's power to impose an unapportioned gross receipts tax on an interstate vendor; Colonial Pipeline Co. v. Traigle posed the recurring and unresolved question of the scope and vitality of the doctrine that the “privilege” of doing interstate business is immune from …

The New Federalism In Criminal Procedure Revisited, Donald E. Wilkes Jr.

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As a result of the Burger Court's seemingly inexorable relaxation of federal protection for criminal defendants, a number of state courts have continued to expand basic rights on state law grounds, thereby utilizing the adequate state ground doctrine to avoid further review by the Burger Court. Part II of this article will examine the evasion cases decided since March 1975. The prospects for continued evasion will be accessed in Part III.

The Origins Of Usus, Alan Watson

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It has long been recognized that the XII Tables was not a complete statement of the law, and that some topics of great legal importance were either not set out or were very partially treated. The general opinion has been, however, that the fragmentary state of our knowledge of the XII Tables' provisions makes it impossible to be precise as to the the topics not dealt with or treated only in part. Recently, though, I have tried to show that we have some information on the great majority of the clauses in the XII Tables: hence on this view, where …

Michelin Tire Corp. V. Wages: Enhanced State Power To Tax Imports, Walter Hellerstein

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In Michelin Tire Corp. v. Wages, the Supreme Court abandoned a century of precedent in holding that the Import-Export Clause does not bar a state from imposing a nondiscriminatory ad valorem property tax on imported goods. The provision forbidding the states from laying "any Imposts or Duties on Imports or Exports" was never intended to prohibit such a levy, the Court now tells us, and the case first suggesting that it did, Low v. Austin, was "wrong decided." Over a mild protest of Mr. Justice White, the Court thus obviated any examination of the principal issue the parties …

A Reappraisal Of The Wealth Transmission Process: The Surviving Spouse, Year's Support And Intestate Succession, Verner F. Chaffin

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This Article will attempt to describe and evalute certain aspects of the wealth transmission process. Attention will be given to the surviving spouse's intestate share and its size, the spouse's protection against disinheritance through forced share legislation or otherwise, and, more significantly, whether such a drastic legislative intrusion on freedom of testation is really needed. The adequacy of the support allowance for the decedent's family during the period of administration will also be explored. Attention will also be focused on selected provisions of the intestacy scheme, such as the order of succession, the doctrine of advancements, whether distribution is per …

A Critique Of Two Arguments Against The Exclusionary Rule: The Historical Error And The Comparative Myth, Donald E. Wilkes Jr.

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“The great body of the law of evidence consists of rules that operate to exclude relevant evidence.” The most controversial of these rules are those which prevent the admission of probative evidence because of the irregular manner in which the evidence was obtained. Depending on whether the method of obtaining violated a provision of positive law, irregularly obtained evidence may be separated into two classes. Evidence obtained by methods which meet legal requirements but contravene some moral or ethical principle is unfairly obtained evidence. Evidence obtained in violation of a legal right or immunity is improperly obtained evidence, regardless of …

"Reference Statutes"--Borrow Now And Pay Later?, R. Perry Sentell Jr.

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In 1923, the General Assembly of Nod enacted the "Statute of Paul" (so designated because of the sponsoring legislator, Paul Perfect), which empowered municipalities of Nod (called "sleepy hollows") to issue licenses to individuals wishing to engage in legitimate private enterprises. One provision of the Paul Statute directed that applicants for such licenses "must make application in the mode prescribed by Code Section 23-112, dealing with county licesning [sic] of pickle processors" (popularly known as the "Peter Pickle Statute"). In 1923, Code Section 23-112 required that an applicant for a pickle processing license submit his application to county licensing authorities …

The Hidden Crisis In Georgia Land Use, J. William Futrell

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As will be more fully developed, the primary defect in the existing legal basis for land use planning is its fragmented and incomplete nature. The consequences of the improper and uncontrolled use of land spill over the narrow boundaries of the political subdivision in which the development occurs. Furthermore, natural areas of statewide or national importance may be lost because of local apathy.

These same conflicts in land use exist in Georgia, and the prevailing legal institutions in Georgia are just as inadequate as those in other states; but, in Georgia, the debate on legal solutionis has been muted. While …

Selected Oddities In Georgia Municipal Law, R. Perry Sentell Jr.

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Generally speaking, practitioners, jurists, professors, legislators, and students desire certainty in the law. For those interested in the law of municipal corporations in Georgia, however, that search for certainty is frequently frustrating, if not impossible. In his Article, Professor Sentell points to a number of Georgia constitutional and statutory rules which, when read with the interpretations of these provisions by the Georgia courts, generate uncertainty and confusion for one confronted with a question in municipal corporation law. The discussion begins with a look at the definitional uncertainty of what is a municipal corporation under Georgia law, turns next to an …

International Trade Institutions And Techniques For Reform, Gabriel M. Wilner

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The tensions which exist between the need of producers of primary products to obtain a reasonable price and the need of the industrial consumers to be assured of sufficient amounts of primary products must be brought under control through institutions and legal rules that will reshape confrontation into negotiation and then, perhaps, even into cooperation. Only international planning within the framework of generally acceptable rules and institutions will bring about the type of stability that will largely depoliticize international economic relations.

Personal Liability Of State Officials Under State And Federal Law, Charles R. Mcmanis

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The common law rule of governmental immunity made governments immune from suit and held public officials personally liable for the torts they committed in the performance of their duties. In recent years, however, the law of tort liability has moved toward the increased immunity of governmental officials and employees and the increased liability of governmental units. In this Article Professor McManis first outlines the notion of sovereign immunity, following with an analysis of the nature and the scope of the immunity afforded governmental official sunder federal and state law, with a particular emphasis on the law of Georgia. The author …

The Mixed Courts Of Egypt: A Study Of The Use Of Natural Law And Equity, Gabriel M. Wilner

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The system of Mixed Courts in Egypt was an unusual institution. It represented an international solution in the context of what was obviously a colonial situation. The system lasted 74 years from 1876 to 1949. A system of law was established whose sources were general codes created especially for use by the Mixed Courts. The Charter of the Mixed Courts specified two residual sources of law. It is these sources and their application upon which this paper is principally focused. Article 34 reads: "The new Courts, in the exercise of their jurisdiction in civil and commercial matters, and within the …

Criminal Law In Tennessee In 1974: A Critical Survey, Joseph G. Cook

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No abstract provided.

Counterclaims And Statutes Of Limitations: A Critical Commentary On Present Tennessee Law, John Sobieski

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No abstract provided.

More On The New Federalism In Criminal Procedure, Donald E. Wilkes Jr.

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The Burger Court has continued to relax federal constitutional restraints on the power of police and prosecutorial officials to detect and convict persons suspected of crime. During the 1973 Term, the fourth amendment right to be free from unreasonable search and seizure appears to have been the principal casualty of the Court's permissive attitude toward the exercise of governmental authority to enforce criminal laws. Although over half a dozen search and seizure cases were decided, in not a single one did the Court find that evidence had been obtained in violation of the fourth amendment. Other decisions narrowly interpreted the …

Emptio, "Taking", Alan Watson

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According to Festus, "Emere, quod nunc est mer cari, antiqui acdpiebant pro sumere" and modern philologists do accept some such meaning as the original in Latin.)

The Thesaurus Linguae Latinae) however, thinks there is no certain example of this sense of emere and considers the instances adduced by Skutsch) to be scarcely convincing. I should like to produce for consideration a different instance drawn from the derivative emptio or emptor. The instance in question may not take us as far back as emere = sumere but will at least to emere = accipere.

Foreword: Recent Developments In Labor Law: The Ninth Annual Labor Relations Institute, J. Ralph Beaird

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The papers presented in this symposium issue were initially presented at a labor institute jointly sponsored by the Atlanta Lawyers Foundation, the Federal Bar Association, the Labor Law Section of the State Bar of Georgia and the Institute of Continuing Legal Education in Georgia. This is the ninth such institute with the first having been held in 1964 for the purpose of acquainting the practicing bar with developments and trends in the field of labor law.