Law Commons^™

Access To The Civil Court System For Survivors Of Child Sexual Abuse In Georgia: Observations And Recommendations From The Clinical Legal Education Experience, Emma M. Hetherington, Michael Nunnally

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Founded in January 2016, the Wilbanks Child Endangerment and Sexual Exploitation Clinic (the CEASE Clinic) represents survivors of child sexual abuse in juvenile court dependency matters and civil litigation and is the first of its kind in the nation. The CEASE Clinic was established through a generous donation by Georgia Law alumnus Marlan Wilbanks (JD ‘84) in response to a new Georgia law known as the Hidden Predator Act (the HPA) that went into effect on July 1, 2015. The HPA extended the statute of limitations for civil claims arising out of acts of child sexual abuse by providing a …

Law's Semantic Self-Portrait: Discerning Doctrine With Co-Citation Networks And Keywords, Joseph S. Miller

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An apex court’s body of cases has an internal texture, continually augmented by recent citations to earlier, topically related cases. How can we best describe that texture? The citation network shows a path. Specifically, what past Supreme Court cases do more recent Supreme Court cases tend to cite together, as if a topical pair? Using a web of those oft-cited pairs, what noun phrases appear in a given cluster of cases more often, relative to the rate at which those phrases appear in writings more generally? To answer these questions is to map, in detail, a body of decisional law. …

Federal Financing Of Higher Education At A Crossroads: The Evolution Of The Student Loan Debt Crisis And The Reauthorization Of The Higher Education Act Of 1965, Camilla E. Watson

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Currently, there are 44.2 million Americans holding student loan debt collectively totaling $1.5 trillion. This massive debt has a profound effect, not only on the lives of the debtors, but also on the national economy because it prevents the debtors from buying homes and cars and creating new businesses. This debt is also speculated to be a likely trigger for the next housing bubble because student loans, like the subprime mortgage loans underlying the 2008 financial crisis, are securitized and sold to investors. But many of those with student loans struggle to find jobs that will enable them to pay …

...And Trade, Harlan G. Cohen

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This short essay, part of a symposium on Gregory Shaffer’s Retooling Trade Agreements for Social Inclusion, argues that the normal science of trade law lacks the tools to confront trade law’s greatest current challenges. Instead, breaking out of trade law’s two-step politics, with its division of “growing the pie” and distributing its slices, and responding to new challenges of climate change, the digital economy, and artificial intelligence will require a new politics built on and designed to build new shared narratives embodying new policy paradigms.

Constructing The Original Scope Of Constitutional Rights, Nathan Chapman

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In this solicited response to Ingrid Wuerth's "The Due Process and Other Constitutional Rights of Foreign Nations," I explain and justify Wuerth's methodology for constructing the original scope of constitutional rights. The original understanding of the Constitution, based on text and historical context, is a universally acknowledged part of constitutional law today. The original scope of constitutional rights — who was entitled to them, where they extended, and so on — is a particularly difficult question that requires a measure of construction based on the entire historical context. Wuerth rightly proceeds one right at a time with a careful consideration …

Legal Consequences Of The Separation Of The Chagos Archipelago From Mauritius In 1965, Diane Marie Amann

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Decolonization and its quite valid discontents lay at the center of the recent International Court of Justice advisory opinion regarding the territory and populations of the Chagos Archipelago, located in the Indian Ocean. Answering questions posed by the UN General Assembly, the concluded that because these islands were detached from Mauritius as a condition of independence, the decolonization of Mauritius had not been completed in accordance with international law. The Court further ruled unlawful the United Kingdom's continued administration of the Chagos Archipelago and called upon all UN member states to aid completion of the decolonization process. As detailed in …

The Transformation Of The State Corporate Income Tax Into A Market-Based Levy, Walter Hellerstein

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This article traces the developments which have transformed the state corporate income tax into a market-based levy and provides an overview of the current “state of play” regarding the apportionment of income for state corporate income tax purposes.

How Not To Read International Harvester: A Response, Walter Hellerstein

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In this article, Hellerstein examines a recent article by Alysse McLoughlin and Kathleen Quinn and seeks to clear up the confusion surrounding International Harvester.

Platforms: The Sequel, Walter Hellerstein, John A. Swain, Jonathan E. Maddison

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In this article, the authors discuss recent developments on sales and use tax reporting and collection obligations imposed on platforms that facilitate taxable sales of tangible personal property or services.

Explaining Choice-Of-Entity Decisions By Silicon Valley Start-Ups, Gregg Polsky

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Perhaps the most fundamental role of a business tax advisor is to recommend the optimal entity choice for nascent business enterprises. Nevertheless, even in 2018, the choice-of-entity analysis remains highly muddled. Most tax practitioners across the United States consistently recommend flow-through entities, such as LLCs and S corporations, to their clients. In contrast, a discrete group of highly sophisticated tax professionals, those who advise start-ups in Silicon Valley and other hotbeds of start-up activity, prefer C corporations.

Prior commentary has described and tried to explain this paradox without finding an adequate explanation. These commentators have noted a host of superficially …

Law And The Blockchain, Usha Rodrigues

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All contracts are necessarily incomplete. The inefficiencies of bargaining over every contingency, coupled with humans’ innate bounded rationality, mean that contracts cannot anticipate and address every potential eventuality. One role of law is to fill gaps in incomplete contracts with default rules. The blockchain is a distributed ledger that allows the cryptographic recording of transactions and permits “smart” contracts that self-execute automatically if their conditions are met. Because humans code the contracts of the blockchain, gaps in these contracts will arise. Yet in the world of “smart contracting” on the blockchain, there is no place for the law to step …

Environmental Law, Travis M. Trimble

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In 2017,1 district courts in the United States Court of Appeals for the Eleventh Circuit decided three cases that clarified issues arising under the Clean Water Act (CWA). 2 The United States District Court for the Southern District of Georgia preliminarily enjoined the Environmental Protection Agency (EPA) and the Army Corps of Engineers from enforcing the Waters of the United States Rule (WOTUS Rule), 3 a regulatory attempt to define the term "Waters of the United States," which is a jurisdictional threshold for agencies' regulatory authority under the CWA.4 Also, the United States District Court for the Northern District of …

Asset Partitioning And Financial Innovation, Christopher Bruner

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Review of the article by Ofer Eldar and Andrew Verstein titled “The Enduring Distinction between Business Entities and Security Interests”, 92 Southern California Law Review, no. 2 (2019).

Introduction To The Symposium On Julian Nyarko, “Giving The Treaty A Purpose: Comparing The Durability Of Treaties And Executive Agreements”, Harlan G. Cohen

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Part of the symposium on Julian Nyarko, “Giving the Treaty a Purpose: Comparing the Durability of Treaties and Executive Agreements”

Code Revision Commission V. Public.Resource.Org And The Fight Over Copyright Protection For Annotations And Commentary, David E. Shipley

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This article is about the Eleventh Circuit’s 2018 decision in Code Revision Commission v. Public.Resource.Org concerning the public edicts doctrine and holding that the State of Georgia’s copyright on the annotations, commentary and analyses in the Official Code of Georgia Annotated is invalid. About a third of the States claim copyright in the annotations to their codes so the potential impact of this decision is substantial. The U.S. Supreme Court granted Georgia’s petition for a writ of certiorari on Monday, June 24.

The article’s thesis is that the Eleventh Circuit was wrong and should be reversed. It first discusses the …

The Role Of Fault In § 1983 Municipal Liability, Michael Wells

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Under Monell v. Department of Social Services, local governments are not vicariously liable for constitutional violations committed by their employees. Those governments, however, are liable under 42 U.S.C. § 1983 for violations committed by "policymaking" officials. In the face of these two principles, courts have struggled with cases in which an underling commits a constitutional violation and the claim of municipal liability is based on a policymaker's failure to prevent it. The government can be liable in these "indirect-effect" cases for a policymaker's "deliberate indifference" to safeguarding constitutional rights, a standard that demands an even greater showing of culpability than …

Infracompetitive Privacy, Greg Day, Abbey R. Stemler

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One of the chief anticompetitive effects of modern business lies in antitrust’s blind spot. Platform-based companies (“platforms”) have innovated a business model whereby they offer consumers “free" and low-priced services in exchange for their personal information. With this data, platforms can design products, target consumers, and sell such information to third parties. The problem is that platforms can inflict greater costs on users and markets in the form of lost privacy than efficiencies generated from their low prices. Consumers, as examples, spend billions of dollars annually to remedy privacy breaches and, alarmingly, participate unwittingly in experiments designed to manipulate their …

Winning And Losing In Investor-State Arbitration, Tim Samples

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As tensions between investors’ rights and sovereign power escalate, investor-state dispute settlement has become a focal point of backlash and controversy. As a result, ISDS now embodies two opposing currents in international law: (i) the erosion of sovereignty that accompanied economic globalization, trade frameworks, and investment treaties following the Second World War and (ii) more recently, reassertions of sovereignty prompted by recent backlashes against the global economic order. This Article measures and evaluates outcomes of the ISDS system for sovereign participants. Using the best available data, this Article contributes more detailed assessments of sovereign winners (home states of claimants) and …

Financial Contracting With The Crowd, Usha Rodrigues

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Equity crowdfunding is broken. The current model imposes too many burdens on entrepreneurs in exchange for too little money. For alternative models, this Article looks to the time-tested venture capital financial contract, and the recent experience of initial coin offerings (ICOs). ICOs made headlines over the past two years, as the means by which blockchain technology companies raised billions of dollars to launch new cryptocurrency ventures. Although their novelty as a monetary and investing device is well known, ICOs also presented significant, unappreciated insights into financial contracting.

ICOs furnished an unprecedented experiment into how bargains would look if entrepreneurs raised …

Taxes Falling Disproportionately On Nonresidents: Reflections On Saban, Walter Hellerstein

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In this article, Hellerstein discusses the constitutionality of taxes that fall disproportionately on nonresidents.

Corporate Governance Reform In Post-Crisis Financial Firms: Two Fundamental Tensions, Christopher Bruner

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The manner in which financial firms are governed directly impacts the stability and sustainability of both the financial sector and the "real" economy, as the financial crisis and associated regulatory reform efforts have tragically demonstrated. However, two fundamental tensions continue to complicate efforts to reform corporate governance in post-crisis financial firms. The first relates to reliance on increased equity capital as a buffer against shocks and a means of limiting leverage. The tension here arises from the fact that no corporate constituency desires risk more than equity does, and that risk preference only tends to be stronger in banks, and …

The Oecd Unified Approach: Nexus, Scope, And Coexisting With Dsts, Assaf Harpaz

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This article comments on the OECD Secretariat Proposal for a “Unified Approach” under Pillar One, released October 9, 2019. The article focuses on the proposal’s scope, nexus, administration and compliance, proposed “Amount C” and compatibility with unilateral digital service taxes. The article suggests a nexus that does not consider size-limiting worldwide revenue thresholds and offers an alternative de minimis country-specific sale-based proposal. Comments on the OECD proposal were submitted by the author as part of the OECD’s public consultation process in November 2019.

Daniel Amsterdam's Roaring Metropolis: Businessmen's Campaign For A Civic Welfare State, Laura Phillips Sawyer

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Daniel Amsterdam’s Roaring Metropolis: Businessmen’s Campaign for a Civic Welfare State challenges the conventional narrative of early twentieth-century American businessmen as promoting laissezfaire or antistatist politics. Instead, as Amsterdam argues, elite business leaders campaigned vigorously for greater municipal spending on civic welfare projects, which included building and improving public schools, public health infrastructure, parks and playgrounds, libraries, and museums. Rather than focus on national-level business in- government, his narrative traverses multiple cities (Detroit, Philadelphia, and Atlanta) to demonstrate both the diversity of political challenges and institutional constraints that civic-minded reformers faced as well as the striking convergence of civic welfare …

Healthism In Tort Law, Elizabeth Weeks

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This article draws on the author's recently published book, Healthism: Health Status Discrimination and the Law (with Jessica L. Roberts) (Cambridge University Press 2018), examining tort law doctrine and policy for examples of differential treatment of health status or behaviors. Just as scholars previously have drawn attention to discrimination based on race, sex, age, and other protected categories in tort law, the article urges similar examination of tort law's potential to discriminate against the unhealthy. The article discusses the potential for healthism in the reasonably prudent person standard of care, contributory negligence, assumption of the risk, noneconomic damages caps, impaired …

Method And Dialogue In History And Originalism, Logan E. Sawyer Iii

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There is a sharp separation between the scholarly literature of originalists and professional historians. Originalists cite one another, but regularly ignore recent work by historians. Historians are generally happy to return the favor. Engagement between the two communities is too often limited to methodological disputes and amicus briefs. As a result, historical inquiry offers less to constitutional law than it might, and constitutional lawyers offer less to history than they could. Some of this separation is due to unavoidable methodological tension, but those tensions have not always frustrated productive dialogue. Originalism, in fact, emerged as an important theory of constitutional …

What Is International Trade Law For?, Harlan G. Cohen

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Events of the past few years, including the Brexit vote in the United Kingdom and the demise of the Trans-Pacific Partnership and election of Donald Trump as President in the United States, have reignited debates about the global trade regime. In particular, many have begun to question whether the trade regime has done enough for those who feel left behind by globalization. While some have held fast to the view that redistribution of trade’s gains is primarily a matter of domestic policy, others have suggested tweaks to the international trade agreements aimed at better spreading the wealth.

But what if …

Fragmentation, Harlan G. Cohen

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A danger, an opportunity, passé, a cliché, destabilizing, empowering, destructive, creative: Depending on whom you ask, fragmentation has meant any and all of these for international law. The concept of fragmentation has been a mirror reflecting international lawyers’ perception of themselves, their field, and its prospects for the future.

This chapter chronicles fragmentation’s meanings over the past few decades. In particular, it focuses on the spreading fears of fragmentation around the millennium, how the fears were eventually repurposed, where, speculatively, those fear may have gone, and how and to what extent faith in international law was restored.

Statute Of Limitations For Child Sexual Abuse Civil Lawsuits In Georgia, Emma Hetherington, Jean Mangan, Chase Lyndale, Michael Nunnally, Wilbanks Child Endangerment And Sexual Exploitation Clinic, University Of Georgia School Of Law

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Only 29% of child sexual abuse reports result in criminal charges being filed. As a result, most states have enacted civil statutes of limitations to allow survivors to file claims both against abusers and also those who owed them a duty of care and knew or should have known about the abuse. In 2015 the Georgia legislature passed the Hidden Predator Act (HPA) to amend the state’s civil statute of limitations. Under the HPA, survivors of child sexual abuse that occurred prior to July 1, 2015 were given a two-year retroactive window under which to file claims against their abusers. …

A Homestead Act For The 21st Century, Mehrsa Baradaran

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The goal of the 21st century Homestead Act is to counteract the longstanding legacy of racially discriminatory housing policies by revitalizing distressed communities through public investment. The basic structure of the program is a wholesale transfer of land to residents who meet certain criteria. Accompanied by a holistic plan at the city level to revitalize the community through public investments in infrastructure and jobs, this proposal would benefit people who live in select small and medium-sized cities that are experiencing high vacancies.

Brandeis’S I.P. Federalism: Thoughts On Erie At Eighty, Joseph S. Miller

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Justice Brandeis is, in intellectual property law’s precincts, most famous for his lone dissent in International News Service v. Associate Press, the misappropriation case one can find in virtually every i.p. survey casebook (and many property law casebooks as well). But in the wider legal world, Brandeis is likely most famous for his earthquake opinion in Erie Railroad Co. v. Tompkins. Do Brandeis’s opinions in these two cases speak to each other? Can considering them together inform broader reflections on the texture of our federalism in the i.p. context? This piece, prepared in connection with an “Erie at Eighty” conference …