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Articles 1 - 30 of 34
Full-Text Articles in Law
Pretrial Detention Of Indigents: A Standard Analysis Of Due Process And Equal Protection Claims, Robert William G. Wright
Pretrial Detention Of Indigents: A Standard Analysis Of Due Process And Equal Protection Claims, Robert William G. Wright
Georgia Law Review
Over the past several years, criminal justice activists
have sought to reform misdemeanor bail policies that
condition pretrial release on an arrestee’s ability to pay
a predetermined cash bond. Activists have challenged
such bail polices by filing lawsuits on behalf on indigent
persons who have been exposed to such policies. Often,
these lawsuits allege that bail policies violate both the
Due Process and Equal Protection Clauses of the
Fourteenth Amendment. While due process and equal
protection analyses are generally well-defined, U.S.
Supreme Court precedent does not offer a clear analysis
for courts to apply to due process and equal protection …
An Empirical Evaluation Of Proposed Civil Rules For Multidistrict Litigation, Margaret S. Williams, Jason A. Cantone
An Empirical Evaluation Of Proposed Civil Rules For Multidistrict Litigation, Margaret S. Williams, Jason A. Cantone
Georgia Law Review
The Civil Rules Committee of the Judicial Conference of the
United States recently began considering the need for specific
rules regarding multidistrict litigation (MDL) proceedings. The
possibility of creating rules specifically for MDL originates with
recently proposed legislation prompted by groups typically tied
to the defense bar. One area the Civil Rules Committee is
considering concerns the use of fact sheets in MDL proceedings.
These party-negotiated questionnaires—directed at both
parties to the case—inform judges and attorneys about the
scope of the proceeding. Understanding whether these case
management tools are currently being used and how they work
with other tools, such …
The Georgia Condominium Act’S Authorization Of Private Takings: Revisiting Kelo And “Bitter With The Sweet”, Tyler Gaines
The Georgia Condominium Act’S Authorization Of Private Takings: Revisiting Kelo And “Bitter With The Sweet”, Tyler Gaines
Georgia Law Review
Homeownership provides owners with certain property
rights and a sense of security. One of the most important
property rights is the Takings Clause of the U.S. Constitution,
which prohibits the government from taking private property
without just compensation. The Clause has been incorporated
against the states and is interpreted as prohibiting any taking
that does not serve a public use. Despite these constitutional
protections, numerous condominium owners face the threat of
private investors taking their units for no public use, without
just compensation, and without the owners’ consent.
Many state condominium laws allow private investors who
obtain a specified percentage …
Puppies, Puppies, Puppies: Why Georgia Should “Adopt” A Progressive Puppy Lemon Law And Engage In Much-Needed Statutory Reform, Jonathan T. Tortorici
Puppies, Puppies, Puppies: Why Georgia Should “Adopt” A Progressive Puppy Lemon Law And Engage In Much-Needed Statutory Reform, Jonathan T. Tortorici
Georgia Law Review
The Georgia Animal Protection Act—a set of animal
protection laws that has remained unchanged for nearly two
decades—was passed to promote animal welfare across the
state. Although the Act was progressive at its inception, its
failure to curb the atrocious conditions created by puppy mills
has become increasingly apparent, resulting in serious
consequences for both consumers and dogs. Georgia must
amend its animal protection laws to shift the costs of puppy
mills to where they belong: on pet sellers. Among other
innovative solutions to this problem, many states have enacted
“puppy lemon laws” that generally provide pet purchasers with
the …
Injunction Junction, What’S Your Function? Crafting Permanent Injunctions To Be Appropriate Remedies In Defamation Cases, James Netter
Injunction Junction, What’S Your Function? Crafting Permanent Injunctions To Be Appropriate Remedies In Defamation Cases, James Netter
Georgia Law Review
When someone is liable for defamation, a court will
almost always levy monetary penalties against the
defamer. A rarely used penalty for defamation is the
imposition of a permanent injunction on the defaming
party that would prevent them from repeating their
defamatory content. Many courts see permanent
injunctions as an unconstitutional prior restraint on a
person’s right to speak, refusing to allow the
condemnation of a person’s speech before they have
spoken it. However, the common justifications for
denying permanent injunctions are weaker upon
reevaluation, particularly in the Internet age, and some
courts and legal scholars recognize that an injunction …
State Of The Unions: The Impact Of Janus On Public University Student Fees, Jonathan Kaufman
State Of The Unions: The Impact Of Janus On Public University Student Fees, Jonathan Kaufman
Georgia Law Review
In Janus v. American Federation of State, County,
and Municipal Employees, Council 31, the U.S.
Supreme Court overruled forty-one years of precedent
that had allowed public-sector unions to collect
agency-shop fees from nonmembers. The Court ruled this
mandatory fee collection unconstitutional as a violation
of nonmember First Amendment rights. This decision
may pose problems for other public entities, such as
public universities, who also collect mandatory fees that
support political speech.
Heating Up And Cooling Down: Modifying The Provocation Defense By Expanding Cooling Time, Ariel J. Pinsky
Heating Up And Cooling Down: Modifying The Provocation Defense By Expanding Cooling Time, Ariel J. Pinsky
Georgia Law Review
This Note argues for expanding the provocation
defense for criminal defendants by broadening the
applicability and recognition of both cooling time and
rekindling. This expansion can be accomplished by
transforming cooling time and rekindling into subjective
standards that focus on the unique internal and external
qualities of the defendant. Doing so would not only be
consistent with the underlying purpose of the defense but
also appropriate considering our modern understanding
of the psychological effects of trauma and reactivity to
provoking stimuli. Accordingly, courts should practice
leniency with respect to cooling time and rekindling. The
best approach to provocation is one …
Free Speech And Off-Label Rights, Amy J. Sepinwall
Free Speech And Off-Label Rights, Amy J. Sepinwall
Georgia Law Review
When a litigant invokes a constitutional right to
protect interests different from the ones underpinning
the right, he engages in what this Article calls an
off-label rights exercise. The Free Speech Clause has
recently become an especially prominent, and troubling,
site of off-label rights exercises. Two of the most
prominent cases in the Supreme Court’s last term
involved litigants who invoked their constitutional
rights to free speech to protect interests unrelated to
speech or expression. In Janus v. American Federation
of State, County, & Municipal Employees, a state
employee argued that forcing him to pay for the union’s
bargaining activities …
Overlapping Legal Rules In Financial Regulation And The Administrative State, Matthew C. Turk
Overlapping Legal Rules In Financial Regulation And The Administrative State, Matthew C. Turk
Georgia Law Review
Reforms which seek to overhaul the Dodd-Frank Act
have begun to gain support within the Trump
Administration and Congress. The leading proposals go
beyond technical matters and reflect a wholesale
critique: financial regulation has become too
burdensome, too complex, and grants too much
discretion to regulators. This Article argues that what is
really at stake in these debates is the distinct issue of
“regulatory overlap”—the joint use of multiple legal
rules to address a common market failure. It begins by
developing a general framework for analyzing
overlapping legal rules of all kinds. That framework is
then applied in case studies …
Regulating Bank Reputation Risk, Julie A. Hill
Regulating Bank Reputation Risk, Julie A. Hill
Georgia Law Review
In the aftermath of a school shooting in Florida, the
New York State bank regulator urged banks to manage
the “reputation risk” posed by doing business with the
National Rifle Association (a gun rights advocacy
group). As part of Operation Choke Point, a federal
regulator told banks to end relationships with payday
lenders because those activities posed “reputation risk.”
Another federal regulator warns banks their reputations
might be damaged by lending to oil and gas companies
that are perceived to cause environmental harm.
Reputation risk is the risk that bank stakeholders will
negatively change their perception of the bank. It …
Discriminatory Dualism, Sarah L. Swan
Discriminatory Dualism, Sarah L. Swan
Georgia Law Review
This Article identifies and theorizes a significant but
previously overlooked feature of structural
discrimination: it frequently develops into two seemingly
opposing, yet in fact mutually supportive practices. This
“discriminatory dualism” occurs in multiple contexts,
including policing, housing, and employment. In
policing, communities of color experience overpolicing
(i.e., the aggressive overenforcement of petty crime) at the
same time as they experience underpolicing (i.e., the
persistent failure to address violent crime). In housing,
redlining (i.e., the denial of credit to aspiring
homeowners based on race) combines with reverse
redlining (i.e., the over-offering of credit on exploitative
terms) to suppress minority homeownership. And …
Georgia’S Runoff Election System Has Run Its Course, Graham P. Goldberg
Georgia’S Runoff Election System Has Run Its Course, Graham P. Goldberg
Georgia Law Review
Georgia requires candidates to earn a majority of
votes in their party’s primary to win elected office. The
majority-vote requirement—passed by the General
Assembly in 1964—is stained by racially-fraught
politics of the era, and even its alleged “good
government” goals are now antiquated. This Note
explores the history of Georgia’s majority-vote
requirement, examines two legal challenges to the law,
and analyzes its flaws and virtues. Finally, this Note
demonstrates that more appealing alternatives to the
majority-vote requirement exist and recommends that
Georgia replace its current runoff election system with
either ranked choice voting or a forty-percent
threshold-vote requirement.
Bending The Arc Toward Justice: The Current Era Of Juvenile Justice Reform In Georgia, Melissa D. Carter
Bending The Arc Toward Justice: The Current Era Of Juvenile Justice Reform In Georgia, Melissa D. Carter
Georgia Law Review
America’s juvenile justice system is experiencing another era of reform. The formal juvenile justice system originated from the ideology and methods of social reformers who viewed deviant behavior as a treatable condition and sought redemption of criminal youth. In the first era of reform, that view powered the state’s exercise of its parens patriae authority and produced a paternalistic judiciary and institutions that used custody as a means of achieving social control. Over time, changing political and social views of childhood and a growing recognition in the law of children as rights-holders shifted the system’s focus away from the rehabilitative …
Juvenile Justice Reform In Georgia: A Collective Decisionmaking Approach To De-Politicize Crime And Punishment, The Honorable Steven Teske
Juvenile Justice Reform In Georgia: A Collective Decisionmaking Approach To De-Politicize Crime And Punishment, The Honorable Steven Teske
Georgia Law Review
Since the creation of the first juvenile court in 1899, juvenile courts have undergone periods of transition in response to legislative enactments prompted by societal events or in response to legal challenges involving due process rights of children. This Article examines politics and the extent in which it played a role in shaping juvenile justice and crime policies and its impact on children and public safety. In this critical review of each period of transition, this Article concludes that the lack of success among juvenile justice agencies, including the courts, is predominately the result of the politicizing of crime and …
Probation And Monetary Sanctions In Georgia: Evidence From A Multi-Method Study, Sarah Shannon
Probation And Monetary Sanctions In Georgia: Evidence From A Multi-Method Study, Sarah Shannon
Georgia Law Review
Georgia leads the nation in probation supervision, which has been the subject of recent legislative reforms. Probation supervision is the primary mechanism for monitoring and collecting legal financial obligations (LFOs) from people sentenced in Georgia courts. This Article analyzes how monetary sanctions and probation supervision intersect in Georgia using quantitative data from the Department of Community Supervision as well as interviews with probationers and probation officers gathered as part of the Multi-State Study of Monetary Sanctions between 2015 and 2018. Several key findings emerge: (1) there is substantial variation between judicial districts in the amount of fines and fees ordered …
Boots And Bail On The Ground: Assessing The Implementation Of Misdemeanor Bail Reforms In Georgia, Andrea Woods, Sandra G. Mayson, Lauren Sudeall, Guthrie Armstrong, Anthony Potts
Boots And Bail On The Ground: Assessing The Implementation Of Misdemeanor Bail Reforms In Georgia, Andrea Woods, Sandra G. Mayson, Lauren Sudeall, Guthrie Armstrong, Anthony Potts
Georgia Law Review
This Article presents a mixed-methods study of misdemeanor bail practice across Georgia in the wake of reform. We observed bail hearings and interviewed system actors in a representative sample of fifty-five counties to assess the extent to which pretrial practice conforms to legal standards clarified in Senate Bill 407 and Walker v. Calhoun. We also analyzed jail population data published by county jails and by the Georgia Department of Community Affairs. We found that a handful of counties have made promising headway in adhering to law and best practices, but that the majority have some distance to go. Most counties …
The Independent State Legislature Doctrine, Federal Elections, And State Constitutions, Michael T. Morley
The Independent State Legislature Doctrine, Federal Elections, And State Constitutions, Michael T. Morley
Georgia Law Review
The U.S. Constitution does not confer authority to regulate
federal elections on states as entities. Rather, it grants that
authority specifically to the “Legislature” of each state. The
“independent state legislature doctrine” teaches that a state
constitution is legally incapable of imposing substantive
restrictions on the authority over federal elections that the U.S.
Constitution confers directly upon a state’s legislature. Over the
past 130 years, the U.S. Supreme Court has repeatedly adopted
conflicting positions on this doctrine without recognizing its
deep historical roots or normative justifications.
The independent state legislature doctrine reflects the
prevailing understanding of states, Congress, and other …
Coequal Federalism And Federal-State Agencies, Dave Owen, Hannah J. Wiseman
Coequal Federalism And Federal-State Agencies, Dave Owen, Hannah J. Wiseman
Georgia Law Review
Dividing authority between the federal government and the
states is central to the theory and practice of federalism.
Division is the defining feature of dual federalism, which
dominates the U.S. Supreme Court’s federalism
jurisprudence. Recent academic theories of federalism
emphasize overlap and interaction but still assume that
federal and state actors will work within separate institutions.
Each approach can be problematic, yet assumptions of
separation remain the bedrock of federalism. This Article
discusses a different form of federalism: coequal federalism.
Under coequal federalism, federal- and state-appointed
officials collaborate within a single agency that makes
decisions binding on the federal government …
Confronting Memory Loss, Paul F. Rothstein, Ronald J. Coleman
Confronting Memory Loss, Paul F. Rothstein, Ronald J. Coleman
Georgia Law Review
The Confrontation Clause of the Sixth Amendment grants
“the accused” in “all criminal prosecutions” a right “to be
confronted with the witnesses against him.” A particular
problem occurs when there is a gap in time between the
testimony that is offered and the cross-examination of it, as
where—pursuant to a hearsay exception or exemption—
evidence of a current witness’s prior statement is offered and,
for some intervening reason, her current memory is impaired.
Does this fatally affect the opportunity to “confront” the
witness? The U.S. Supreme Court has, to date, left unclear the
extent to which a memory-impaired witness can …
Pay Toll With Coins: Looking Back On Fbar Penalties And Prosecutions To Inform The Future Of Cryptocurrency Taxation, Caroline T. Parnass
Pay Toll With Coins: Looking Back On Fbar Penalties And Prosecutions To Inform The Future Of Cryptocurrency Taxation, Caroline T. Parnass
Georgia Law Review
Cryptocurrencies are gaining a foothold in the global
economy, and the government wants its cut. However, few
people are reporting cryptocurrency transactions on their tax
returns. How will the IRS solve its cryptocurrency
noncompliance problem? Its response so far bears many
similarities to the government’s campaign to increase Reports
of Foreign Bank and Financial Accounts (FBARs). FBAR
noncompliance penalties are notoriously harsh, and the
government has pursued them vigorously. This Note explores
the connections and differences between cryptocurrency
reporting and foreign bank account reporting in an effort to
predict the future regime of cryptocurrency tax compliance.
Whistleblowing In The Compliance Era, Jeffrey R. Boles, Leora Eisenstadt, Jennifer M. Pacella
Whistleblowing In The Compliance Era, Jeffrey R. Boles, Leora Eisenstadt, Jennifer M. Pacella
Georgia Law Review
International events over the last year have propelled the
importance of whistleblowers to the forefront. It is increasingly
evident that whistleblowers provide immense value to society.
Yet, for years, whistleblowers have been victims of retaliation,
commonly experiencing threats, discrimination, and
employment termination due to their reporting. Against the
backdrop of a society heavily defined by compliance-focused
initiatives—where organizations and industries construct
robust compliance programs, internal policies, and codes of
conduct—this Article highlights a significant gap in legal
protections for would-be whistleblowers. While compliance
initiatives demonstrate that active self-regulation is
increasingly a staple of organizational governance, this Article
pinpoints the problems …
Why The Vppa And Coppa Are Outdated: How Netflix, Youtube, And Disney+ Can Monitor Your Family At No Real Cost, Anna O’Donnell
Why The Vppa And Coppa Are Outdated: How Netflix, Youtube, And Disney+ Can Monitor Your Family At No Real Cost, Anna O’Donnell
Georgia Law Review
Video-streaming services like Netflix, YouTube, and Disney+
dominate the current media landscape. This Note explains why
current laws likely cannot effectively prevent these streaming
services from collecting and sharing users’ private information.
The Video Privacy Protection Act (the VPPA) contains language
that has baffled courts when applying its text to streaming
services, resulting in multiple circuit splits. The Children’s
Online Privacy Protection Act (COPPA) has a clearer
application to streaming services, yet its enforcement has
resulted in small settlements with companies that have been
charged with collecting children’s private information. Both the
VPPA and COPPA need to be updated to …
The Inherent And Supervisory Power, Jeffrey C. Dobbins
The Inherent And Supervisory Power, Jeffrey C. Dobbins
Georgia Law Review
Parties to litigation expect courts to operate both
predictably and fairly. A core part of this expectation is
the presence of codified rules of procedure, which ensure
fairness while constraining, and making more
predictable, the ebb and flow of litigation.
Within the courts of this country, however, there is a
font of authority over procedure that courts often turn to
in circumstances when they claim that there is no
written guidance. This authority, referred to as the
“inherent” or “supervisory” power of courts, is an almost
pure expression of a court’s exercise of discretion in that
it gives courts the …
Faulty Forensics: Bolstering Judicial Gatekeeping In Georgia Courts, Miranda S. Bidinger
Faulty Forensics: Bolstering Judicial Gatekeeping In Georgia Courts, Miranda S. Bidinger
Georgia Law Review
Forensic evidence is widely used in criminal cases
across the country and is accorded great weight by
juries. But critics have begun to question its reliability.
Its use has contributed to numerous wrongful
convictions, and though some individuals have been
exonerated, many remain incarcerated for crimes they
did not commit.
This Note explores a variety of forensic science
disciplines and their associated problems, the recent
push for forensic reform, and the current standards
governing the admissibility of forensic evidence at the
federal level and in Georgia courts, highlighting the
lenient standard embodied in the Georgia Code and
elaborated upon in …
An Avenue For Fairness: Disclosure-Based Compensation Schemes For Good Faith Purchasers Of Stolen Art, Caroline Harvey
An Avenue For Fairness: Disclosure-Based Compensation Schemes For Good Faith Purchasers Of Stolen Art, Caroline Harvey
Georgia Law Review
Art theft occurs regularly around the world, and each
year stolen works of art are funneled into the
international art market. While the United States boasts
the world’s largest art market, it is also home to the
biggest market of illegal art. Longstanding principles of
property law are unfavorable to unwitting good faith
purchasers of stolen art, who are often forced to return
works to true owners at great financial loss. This Note
explores the legal implications of purchasing a stolen
work of art in the United States and the equities
associated with defenses available to good faith
purchasers. In …
The Code Of The Platform, Todd Haugh, Abbey Stemler, Joshua E. Perry
The Code Of The Platform, Todd Haugh, Abbey Stemler, Joshua E. Perry
Georgia Law Review
Digital platform-based businesses such as Uber,
eBay, and Google have become ubiquitous in our daily
lives. They have done so by expertly harnessing
technology to bring supply- and demand-side users
together for commercial and social exchange. Users are
happy to let these platform companies play
“matchmaker” because transaction costs are lowered—it
is easier to find or give a ride, buy or sell a product, or
obtain almost any kind of information than ever before—
and platforms are happy to be at the center of the
exchange, taking advantage of network effects to become
wildly successful. Despite the success of these …
The Other Hobbs Act: An Old Leviathan In The Modern Administrative State, Jason N. Sigalos
The Other Hobbs Act: An Old Leviathan In The Modern Administrative State, Jason N. Sigalos
Georgia Law Review
The Hobbs Administrative Orders Review Act is a
little-known statute, one that is often mistaken for a
federal criminal statute with a similar name.
The lesser-known Hobbs Act requires aggrieved parties
to challenge certain agency orders in a federal court of
appeals within sixty days of the order’s promulgation.
However, if no party does so, are later parties bound by
a potentially unlawful agency order in subsequent
enforcement actions? The U.S. Supreme Court recently
dodged this question in PDR Network, LLC v. Carlton
& Harris Chiropractic, Inc. That case concerned a suit
between two private parties under the Telephone
Consumer …