Law Commons^™

Toward A Functional Approach To Sovereign Equality, Peter B. Rutledge

Scholarly Works

Under the principle of sovereign equality of nations, nation states are entitled to equal dignity (evidenced by conventions like their voting rights in the United Nations), have the identical capacity to contract (evidenced by their ability to enter into treaties), and are not subject to a superior sovereign (evidenced by the lack of a global leviathan). This principle also has had an important effect in the field of international civil litigation, in areas such as judicial jurisdiction or sovereign immunity. As that principle has weakened over the twentieth century, risks of aggravation to comity have risen, resulting in the development …

Deporting The Pardoned, Jason A. Cade

Scholarly Works

Federal immigration laws make noncitizens deportable on the basis of state criminal convictions. Historically, Congress implemented this scheme in ways that respected the states’ sovereignty over their criminal laws. As more recent federal laws have been interpreted, however, a state’s decision to pardon, expunge, or otherwise set-aside a conviction under state law will often have no effect on the federal government’s determination to use that conviction as a basis for deportation. While scholars have shown significant interest in state and local laws regulating immigrants, few have considered the federalism implications of federal rules that ignore a state’s authority to determine …

Enriching The Vocabulary Of Law: New Legal Subject Headings, Suzanne R. Graham, George Prager

Articles, Chapters and Online Publications

No abstract provided.

News @ Georgia Law, November 2012, Office Of Communications And Public Relations

News @ UGA School of Law

New service learning program to launch this spring; two more on the horizon; Foyer named for Aflac Foundation President Kathelen Amos (J.D.'82); Georgia Law continues to be recognized as a best value; Global Internship Program receives funding from the Freeman Foundation; ASIL Midyear Meeting held in Athens/Atlanta; Georgia Supreme Court to hear oral arguments at Georgia Law; Faculty Highlights: Lonnie T. Brown Jr., Julian A. Cook III, Walter Hellerstein, Peter B. "Bo" Rutledge; Georgia Law wins Hulsey/Gambrell competition; takes second at national civil rights and liberties moot; Prosecutorial Clinic director and students reach milestones; Georgia Law says goodbye to Sarajane …

Towards A Communicative Theory Of International Law, Timothy L. Meyer

Scholarly Works

Does international law's effectiveness require a clear distinction between law and non-law? This essay, which reviews Jean d'Aspremont's Formalism and the Sources of International Law, argues the answer is no. Ambiguity about the legal nature of international instruments has important benefits. Clarity in the law may encourage states to do the minimum necessary to comply, while some uncertainty about what the law requires may induce states to take extra efforts to ensure they are in compliance. Ambiguity in the law also promotes dynamic change, an important feature in rapidly developing areas of the law such as international environmental law and …

Financiers As Monitors In Aggregate Litigation, Elizabeth Chamblee Burch

Scholarly Works

This Article identifies a market-based solution for monitoring large-scale litigation proceeding outside of Rule 23’s safeguards. Although class actions dominate the scholarly discussion of mass litigation, the ever increasing restrictions on certifying a class mean that plaintiffs’ lawyers routinely rely on aggregate, multidistrict litigation to seek redress for group-wide harms. Despite sharing key features with its class action counterpart—such as attenuated attorney-client relationships, attorneyclient conflicts of interest, and high agency costs—no monitor exists in aggregate litigation. Informal group litigation not only lacks Rule 23’s judicial protections against attorney overreaching and self-dealing, but plaintiff’s themselves cannot adequately supervise their attorneys’ behavior. …

Smile For The Camera - The Long Lost Photos Of The Supreme Court At Work—And What They Reveal., Sonja R. West

Popular Media

In a day when even our cellphones can capture images unobtrusively, why were we forced to stare at pixels on our computer screens or at a static televised image of the Supreme Court’s exterior? In 2012, why is there a wall of separation between the American people and their high court?

For decades, the debate over cameras in the court has gone something like this: the press pleads for permission and the court says no; academics make policy arguments that the court ignores; and Congress threatens to force cameras into the court, but the justices don’t blink. The argument remains …

Newsletter, Fall 2012, Vol. 7, Issue 1, The Dean Rusk International Law Center

Newsletters

Studies in Europe Spur Interest in International Law; Lectures; Justice Joan E. Donoghue of the International Court of Justice Gives 108th Sibley Lecture to Packed Courtroom; Hot Topics Debated at Energy Security Conference; International Perspectives on the Future of Intellectual Property Law; Junior International Law Scholars Association Meets at the Rusk Center; Visiting Professors & Scholars; Symposium Offers Useful Tips for Starting a Career in International Law; Brazilian Judicial Delegation Trains at Georgia Law; Interview with Justice Fernando Cerqueira Norberto; Global Internship Program; Georgia Law at Oxford; Kay Vaughn Joins Rusk Center Staff; Georgia Law Grad Finds Niche in Cultural …

Verify, Then Trust: How To Legalize Off-Label Drug Marketing, Fazal Khan, Justin Holloway

Scholarly Works

This article will discuss the current state of off-label medicine, relevant legislation in the area, and a proposal designed to capture the benefits of off-label medicine while limiting its dangers when practiced perniciously. Part II will discuss the regulations in place governing off-label promotion and will detail the practice of ghostwriting and its associated concerns. Part III will analyze the costs and benefits of off-label marketing and practice of medicine, and will utilize a case study to demonstrate the predicament of drug manufacturers. Part IV will set forth a proposal to use the newly created Patient-Centered Outcomes Research Institute to …

Who Owes How Much? Developments In Apportionment And Joint And Several Liability Under O.C.G.A. § 51-12-33, Thomas A. Eaton

Scholarly Works

Without question, O.C.G.A. 51-12-13 as construed in McReynolds and Couch ushers in a new era in Georgia tort law. It topples the old regime in which multiple tortfeasors were held jointly liable when their combined acts of negligence injured an innocent plaintiff. The new regime is one of apportionment and liability limited to one's personal share of fault. Fault may be apportioned when it previously could not. It may be apportioned to those who are immune, to those who are unknown, and even to those who intentionally injure an innocent plaintiff. The practical consequence of this regime change is to …

Creating Hammer V. Dagenhart, Logan E. Sawyer Iii

Scholarly Works

Hammer v. Dagenhart is among the best known cases in the canon of constitutional law. It struck down the first federal child labor law on the grounds that Congress’s commerce power allowed it to prohibit the interstate shipment of harmful goods, like impure food and drugs, but not harmless goods, like the products of child labor. Withering criticism of the decision spread from Justice Holmes’s famous dissent to law reviews, treatises, casebooks, and constitutional law classes. For nearly a century the decision has been scorned as inconsistent with precedent, incoherent as policy, and driven solely by the Court’s reactionary commitment …

Spacs And The Jobs Act, Usha Rodrigues

Scholarly Works

The law has long confined the average investor to trading in public securitieswhile allowing wealthy—or “accredited”—individual investors access to a panoply of private securities, including investment vehicles such as hedge funds and private equity funds. Nevertheless, pressure to let the general public into private equity has been growing. Two forces have contributed to this mounting pressure. First, public investors are eager to try their hand at investing in private enterprise. Second, private firms need capital. In the face of these forces, the sharp line that has long separated public and private firms has become increasingly blurred

Consider the story of …

Who Owes How Much? Developments In Apportionment And Joint And Several Liability Under O.C.G.A. § 51-12-33, Thomas A. Eaton

Scholarly Works

For most of its history, Georgia followed the traditional common law rule of joint and several liability and the equally well-settled principle that negligence could not be compared with intent when apportioning liability. Both of those propositions were dramatically altered by the enactment of the 2005 amendments to the Official Code of Georgia Annotated (O.C.G.A.) section 51-12-33 as construed by the Georgia Supreme Court in two recent opinions.

An Almost-Eyewitness Account - New Evidence About Mary Meyer’S Murder, Donald E. Wilkes Jr.

Popular Media

This article, appearing in the Flagpole on September 12, 2012, is a follow-up to the mysterious murder of Mary Pinchot Meyer. It provides a statement of Harold Libermann who was with Mary Meyer on the date of her murder.

August 2012 E-Newsletter Student Spotlight: Krunal Shah (2l), Office Of Communications And Public Relations

Profiles of Members of the Law School Community

No abstract provided.

News @ Georgia Law, August 2012, Office Of Communications And Public Relations

News @ UGA School of Law

Georgia Law welcomes the Class of 2015; $1.5 million cy pres award goes toward student scholarships; Baradaran and Barnett join the Georgia Law faculty; Rotunda renovation completed; Shipley, Levin, Cohen and Graham earn promotions; Thompson rejoins PepsiCo as executive vice president; Cohen wins JILP Peer Review Award; Amann participates in a closed-door workshop; Barnett selected to present at the 2012 Yale-Stanford-Harvard Junior Faculty Forum; LSA presents highest honor to Kurtz and Wooten; Athens and Columbus firms win Firm and Corporate Alumni Challenge; Chaffin and Surrency recognized for dedication to the legal profession; Eleven Georgia Law alumni named to UGA’s 40 …

Let's Talk: Judicial Decisions At Supreme Court Confirmation Hearings, Anna Batta, Paul M. Collins, Jr., Tom Miles, Lori A. Ringhand

Scholarly Works

An investigation of Supreme Court Confirmation hearings reveals many queries posed to nominees reference specific court cases, especially recent decisions, and with questioning often divided along partisan lines. These findings indicate that the hearings are more substantive than is commonly assumed.

Universal Citation In Sixty Seconds, Anne Burnett

Presentations

A large format infographic describing the system for citation which permits reference to legal or law-related information in any medium without requiring reference to proprietary products. Includes a timeline of the Universal Citation Guide from 1993 to 2012, citation elements, a list of states and territories that adopted the practice and an interactive QR code for accessing AALL's page on this citation format. The poster also encouraged viewers to advocate for adopting Universal citation with judges, attorneys and legislators.

Law's Public/Private Structure, Christian Turner

Scholarly Works

Often derided for its incoherence or uselessness, the public/private distinction is rarely studied explicitly outside the state action doctrine in Constitutional Law. To ignore this distinction, however, is to miss the most fundamental sorting criterion in our law. Distinguishing whether public or private entities control (a) law creation and definition and (b) prosecution leads to a simple yet powerful taxonomy of legal systems. The taxonomy characterizes legal systems in terms of control over decisionmaking by our most basic institutional forms: the public and private. Thus, the proper categorization of laws within the system, for example whether a policy should be …

Civility And Collegiality—Unreasonable Judicial Expectations For Lawyers As Officers Of The Court?, Lonnie T. Brown

Scholarly Works

It is a well-settled and often-recited fact that lawyers are “officers of the court.” That title, however, is notoriously hortatory and devoid of meaning. Nevertheless, the Eleventh Circuit recently took the somewhat unprecedented step of utilizing the officer-of-the-court label to, in effect, sanction an attorney for the purportedly uncivil act of failing to provide defendant attorneys with pre-suit notice. While the author applauds the court’s desire to place greater emphasis on lawyer-to-lawyer collegiality as a component of officer-of-the-court status, the uncertainty the decision creates in terms of a lawyer’s role will potentially force litigators to compromise important client-centered duties. This …

Trips And Bits: An Essay On Compulsory Licenses, Expropriation, And International Arbitration, Peter B. Rutledge

Scholarly Works

This essay examines the potential for arbitration to resolve disputes between private companies and developing countries over the propriety of compulsory licenses. At bottom, my thesis is that arbitration supplies the medium through which to mediate the tension between the profit-seeking goals of private multinational companies and the development goals of foreign nations, especially in the developing world. The compulsory license debate raises a clash of fundamental interests between the patent holder, the patent holder’s state, and the host state. Arbitration can play an important role in balancing those interests, albeit a highly unusual one. Arbitration provides an essential forum …

Why Obama’S Words Didn’T Go Far Enough, Sonja R. West, Dahlia Lithwick

Popular Media

When President Obama announced his support of same-sex marriage, he talked broadly about “equality” and “fairness.” He spoke of “opposing discrimination against gays and lesbians” and making sure that nobody is treated as “less than full citizens when it comes to their legal rights.” It was a powerful moment—historic and emotional. In the Aaron Sorkin version, the orchestra would have soared at this point as the supporting cast members exchanged teary-eyed yet knowing nods.

But then President Obama described how these rights should be protected and the music stopped with a squawk. Same-sex marriage, he said, is not in fact …

Due Process As Separation Of Powers, Nathan S. Chapman, Michael W. Mcconnell

Scholarly Works

From its conceptual origin in Magna Charta, due process of law has required that government can deprive persons of rights only pursuant to a coordinated effort of separate institutions that make, execute, and adjudicate claims under the law. Originalist debates about whether the Fifth or Fourteenth Amendments were understood to entail modern “substantive due process” have obscured the way that many American lawyers and courts understood due process to limit the legislature from the Revolutionary era through the Civil War. They understood due process to prohibit legislatures from directly depriving persons of rights, especially vested property rights, because it was …

Avoiding Independent Agency Armageddon, Kent H. Barnett

Scholarly Works

In Free Enterprise Fund v. Public Company Accounting Oversight Board, the U.S. Supreme Court invalidated Congress’ use of two layers of tenure protection to shield Public Company Accounting Oversight Board (PCAOB) members from the President’s removal. The SEC could appoint and remove PCAOB members. An implied tenure-protection provision protected the SEC from the President’s at-will removal. And a statutory tenure-protection provision protected PCAOB members from the SEC’s at-will removal. The Court held that these “tiered” tenure protections unconstitutionally impinged upon the President’s removal power because they prevented the President from holding the SEC responsible for PCAOB’s actions in the same …

Examining The Tax Advantage Of Founders' Stock, Gregg D. Polsky, Brant J. Hellwig

Scholarly Works

Recent commentary has described founders' stock as tax-advantaged because it converts founders' compensation income into capital gains. In this paper we describe various founders' stock strategies that offer this character conversion and then analyze whether they are, on the whole, tax advantageous. While the founders' stockstrategies favorably convert the character of the founders' income, they simultaneously turn the company's compensation deductions into non-deductions. Whetherfounders' stock is tax-advantaged overall depends on whether the benefit of the founders' character conversion outweighs the cost of the company's lost deductions. We use various hypothetical to illustrate this tradeoff. We conclude that founders' stock is …

Gene Patents No More? Deciphering The Meaning Of Prometheus, Fazal Khan, Lindsay Kessler

Scholarly Works

When Congress enacted the United States Patent Act in 1952, it specified that patentable subject matter included anything “under the sun that is made by man.” Three decades ago the United States Patent and Trademark Office (USPTO) issued the first gene patent and ushered in a brave new gold rush. Some genes are associated with specific diseases, so being able to identify these sequences is an essential first step for developing genomic diagnostic tests and therapies. The problem with gene patents is that they allow modern-day prospectors to cordon off access to naturally occurring DNA sequences and exclude others from …

Codifying Custom, Timothy L. Meyer

Scholarly Works

Codifying decentralized forms of law, such as the common law and customary law, has been a cornerstone of the positivist turn in legal theory since at least the nineteenth century. Commentators laud codification’s purported virtues, including systematizing, centralizing, and clarifying the law. These attributes are thought to increase the general welfare of those subject to legal rules, and therefore to justify and explain codification. The codification literature, however, overlooks codification’s distributive consequences. In so doing, the literature misses the primary motive for codification: to define legal rules in a way that advantages individual codifying institutions, regardless of how codification affects …

Civil Recourse, Damages-As-Redress, And Constitutional Torts, Michael Wells

Scholarly Works

In Torts as Wrongs, Professors John Goldberg and Benjamin Zipursky discuss the connection between "tortious wrongdoing" and "civil recourse." Their civil recourse theory "sees tort law as a means for empowering individuals to seek redress against those who have wronged them." Goldberg and Zipursky show that modern tort theory is dominated by "loss allocation," which uses liability and damages as instruments for assigning losses to deter unwanted behavior and to compensate the plaintiff. Under loss allocation, the central principle of damages is full compensation that is, to make the plaintiff whole. The core component of damages, though not the only …

Federal - State Tax Coordination: What Congress Should Or Should Not Do -- Testimony Of Walter Hellerstein On Tax Reform: What It Means For State And Local Tax And Fiscal Policy, Before The Committee On Finance, Walter Hellerstein

Scholarly Works

Testimony of Walter Hellerstein, Francis Shackelford Professor of Taxation Distinguished Research Professor, before the Committee on Finance, hearing on Tax Reform: What It Means for State and Local Tax and Fiscal Policy, United States Senate, April 25, 2012.

Book Review, International Organizations: Politics, Law, Practice (2010), Timothy L. Meyer

Scholarly Works

This essay reviews Ian Hurd’s International Organizations: Politics, Law, Practice. International law and international relations scholars are increasingly interested in the variation in the structures and powers of international organizations, as well as how that variation affects state decisions to comply with international law. Hurd’s book offers a nuanced overview of the relationship between the legal powers of international organizations and the political contexts in which they operate. The book uses eight case studies, including the United Nations, the World Trade Organization, the International Court of Justice, and the International Labor Organization, to assess how different political environments and institutional …