Law Commons^™

Administrative Law, J. Michael Davis

Mercer Law Review

The Eleventh Circuit Court of Appeals faced a number of Administrative Law issues in 1992, providing important decisions in the fields of immigration law and occupational safety. The decisions as a whole did not depart from standard principles of Administrative Law, however, the decisions did provide substantial refinements of those principles. The most compelling decision occurred in the field of immigration law and was the only decision to involve a dissenting opinion.

Antitrust, Michael Eric Ross

Mercer Law Review

The Eleventh Circuit handed down only two antitrust decisions in 1992. It was by far the lowest number of antitrust cases in any calendar year since the court was created in 1981. Nonetheless, both antitrust opinions last year were solidly reasoned and squarely in line with the current state of antitrust law.

Appellate Practice And Procedure, William M. Droze, Cynthia Honssinger Frank

Mercer Law Review

Appellate practice and procedure in the Eleventh Circuit during 1992, consistent with previous years, has produced a number of interesting cases and is often a reflection of the attitudes of the panel considering the appeal. In one instance, despite lacking appellate jurisdiction due to the absence of a final order, the panel invited the parties to obtain the required certification from the district court in order to perfect the appeal. In another, the panel delivered stinging criticism to the district court for creating a policy that restricted the ability of parties to file summary judgment motions.

The court expanded its …

Bankruptcy, W. Homer Drake Jr., James W. Dilz

Mercer Law Review

During 1992, the United States Court of Appeals for the Eleventh Circuit decided fifteen cases in the area of bankruptcy law. The decisions covered a diverse array of sections of the Bankruptcy Code (the "Code"). In addition to cases with practical application within the Eleventh Circuit, several decisions have national significance. This Article is a survey of each bankruptcy decision by the Eleventh Circuit in 1992.

Constitutional Civil Law, Albert Sidney Johnson, Susan Cole Mullis

Mercer Law Review

During the 1992 survey period, the most noticeable aspect of the constitutional civil law jurisprudence of the United States Court of Appeals for the Eleventh Circuit was the large body of circuit jurisprudence concerning the First Amendment, both in the context of ballot access and the rights of public employees. The Eleventh Circuit also issued several opinions on constitutionalized procedural issues such as standing, abstention, preclusion, and ripeness. The court's receptiveness to these preliminary defenses provides an opportunity for government defendants to avoid litigation on the merits in appropriate cases.

Once again, the circuit's qualified immunity opinions illustrate the continuing …

Constitutional Criminal Law, Peggy Natale

Mercer Law Review

This year, the Eleventh Circuit issued opinions on a variety of criminal constitutional law cases, including decisions granting writs of habeas corpus on several death row inmates, and in three cases addressing ineffective assistance of counsel. What follows is a summary of some of the most important criminal constitutional cases for 1992. No effort has been made to make an exhaustive review of. all of the court's criminal cases for the year.

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

The significant developments during the 1992 survey period in the area of employment discrimination related more closely to statutory changes than to decisions handed down either by the United States Supreme Court or the United States Court of Appeals for the Eleventh Circuit. Of course 1992 will long be remembered as the year that ushered in the much publicized Americans with Disabilities Act ("ADA"), an act that will no doubt become known as the most far-reaching employment legislation of the 1990s. Although no ADA cases have, as yet, progressed to the Eleventh Circuit level, many administrative charges already have been …

Environmental Law, Edward A. Kazmarek, W. Scott Laseter

Mercer Law Review

Environmental law as a separate discipline has continued to grow in stature during the last few years and the rising influence of environmental factors in all areas of law and business shows no signs of abating. With President Clinton's appointment of Carol Browner, former Florida Department of Environmental Regulation Secretary, as Administrator of the United States Environmental Protection Agency ("EPA"), the new administration signaled its intent to place greater emphasis on environmental issues. Even Vice President Gore's popular book, Earth In The Balance, advocates wide ranging and fundamental changes in American society and revolves around a particular environmental vision.

Like …

Evidence, Marc T. Treadwell

Mercer Law Review

For seven consecutive years, the Mercer Law Review has been kind enough to ask the author to review Eleventh Circuit evidence decisions. While one may question the wisdom of the Review's annual return to the same well, seven years of reading every Eleventh Circuit decision involving evidentiary issues has allowed the author to note what may loosely be called "trends" in the Eleventh Circuit's decisions. No claim can be made that these observations are based on statistical or empirical data; they derive solely from the author's sense of the Eleventh Circuit's direction and predilections over the past seven years.

First, …

Federal Taxation, Steven C. Evans

Mercer Law Review

Nineteen ninety-two was not a banner year for substantive federal income tax decisions for the Eleventh Circuit. Although the Eleventh Circuit decided several procedural tax cases, several cases under the Employment Retirement Income Security Act of 1974 ("ERISA"), and several criminal tax cases, the Eleventh Circuit decided only one substantive tax case. This Article reviews the substantive tax case, the procedural tax cases, and the ERISA cases decided by the Eleventh Circuit in 1992.

Labor Law, Benton J. Mathis Jr., Leigh C. Lawson, Christopher E. Parker

Mercer Law Review

This Article surveys the 1992 decisions of the United States Court of Appeals for the Eleventh Circuit that impacted the area of traditional labor law. More specifically, the cases addressed in this Article include noteworthy decisions under the National Labor Relations Act ("NLRA"), the Labor Management Relations Act ("LMRA"), the Fair Labor Standards Act of 1938 ("FLSA"), the Occupational Safety and Hazard Act ("OSHA"), and the Employee Retirement Income Security Act of 1974 ("ERISA").

This Article does not discuss every case decided by the Eleventh Circuit addressing these federal labor laws during the survey year of 1992; also, this Article …

Securities Regulation, John L. Latham, James A. Shuchart

Mercer Law Review

This Article surveys significant cases decided by the Eleventh Circuit Court of Appeals during 1991 and 1992 in the field of securities regulation. This Article also examines selected Supreme Court decisions during this survey period that affect Eleventh Circuit precedent.

Trial Practice And Procedure, Steven A. Miller, Kristen K. Duggan

Mercer Law Review

This Article surveys the 1992 decisions of the Eleventh Circuit Court of Appeals that have significant impact upon the area of trial practice and procedure.

• Subject Matter Jurisdiction
• Personal Jurisdicition
• Pleading
• Issues at Trial
• Judgment
• Local Rules
• Sanctions

Anderson Chemical V. Portals Water Treatment: Ensuring An Inherent Risk Of Business, Adrian Bradley Dozier Jr.

Mercer Law Review

In Anderson Chemical v. Portals Water Treatment, the United States District Court for the Middle District of Georgia addressed 'the issue of whether a document executed between two corporations regarding a proposed stock purchase merger and acquisition agreement constituted a binding contract for the sale of securities or a non-binding letter of intent. Specifically, the court addressed a scenario in which a proposed purchaser of securities in an alleged stock purchase agreement made certain oral representations that directly contradicted limiting language in a document executed between the proposed seller and purchaser. The seller then acted in reliance upon the …

Braun V. Soldier Of Fortune Magazine, Inc.: Advertisement For Hit Man Brings Four Million Dollar Hit To Publisher, Mae Charles Babb

Mercer Law Review

In Braun v. Soldier of Fortune Magazine, Inc., the Eleventh Circuit affirmed a district court's holding that the First Amendment does not insulate a magazine publisher from liability for publishing a commercial advertisement that presents a substantial danger of harm to the public. In adopting this affirmative duty to examine an advertisement's language, the court imposed tort liability on Soldier of Fortune Magazine ("SOF") for the criminal acts of its advertiser, a third party not joined in the suit. This decision strikes the correct balance between preserving the free flow of commercial information through advertisement with the need to …

Church Of The Lukumi Babalu Aye V. City Of Hialeah, Paul L. Bader

Mercer Law Review

In Church of the Lukumi Babalu Aye v. City of Hialeah, a Florida district court has gone further than any other federal court in proscribing a church's right to exercise its religious beliefs. The district court found that the city's interests in public health, child welfare, and animal welfare were sufficient to override the protection provided under the free exercise clause of the First Amendment. After the Eleventh Circuit Court of Appeals affirmed in an unpublished opinion the Supreme Court granted certiorari to decide whether the First Amendment protects a religion's practice of animal sacrifice. The Supreme Court has …

Davis V. State: Too Young To Consent?, Judson Robert Jahn

Mercer Law Review

In Davis v. State, the Supreme Court of Georgia held that a ten-year-old child could not give valid consent to a search of his parents' home. In determining the validity of a minor's consent, the supreme court considered those factors that the court of appeals deemed relevant in Atkins v. State. Applying the Atkins factors, the supreme court held that ten-year- old Darrin Davis ("Darrin") "lacked that degree of mental discretion necessary for a minor to give valid consent to the search of his, and his parents', home." According to Justice Sears-Collins, "[m]ost ten-year-old children are incapable of …

Dimmitt Chevrolet V. Southeastern Fidelity Insurance Corp.: Florida Interprets The "Sudden And Accidental" Clause, Walter E. Engle Iii

Mercer Law Review

In Dimmitt Chevrolet v. Southeastern Fidelity Insurance Corp., the Florida Supreme Court, in a four to three decision, held that the "sudden and accidental" language ,used in the pollution exclusion clause of comprehensive general liability ("CGL") insurance contracts is capable of more than one meaning and is therefore ambiguous. The court then held that so long as environmental contamination is unexpected and unintended on the part of the insured, coverage is not excluded under a CGL insurance policy by the pollution exclusion clause. The court, by first determining that the sudden and accidental language was ambiguous and then analyzing …

Farrar V. Hobby: When Moral Victories Will Not Feed The Attorney, Seán W. Conley

Mercer Law Review

In Farrar v. Hobby, the Supreme Court granted "prevailing party" status, as required by 42 U.S.C § 1988, to those plaintiffs who are awarded only nominal damages. The Court rejected the Fifth Circuit's rationale that an award of nominal damages is a "technical" or "insignificant" victory and insufficient to allow prevailing party status.

Although the Court unanimously found that a party who is awarded nominal damages is a prevailing party, the Court split five to four as to what reasonable attorney fees would be in this case. Writing for the Court, Justice Thomas compared the relief sought to the …

Goldberg V. Town Of Rocky Hill: Second Circuit Refuses To Extend Absolute Immunity To Municipal Defendant, Nancy J. Bladich

Mercer Law Review

In Goldberg v. Town of Rocky Hill, the Second Circuit Court of Appeals held that municipalities sued under The Civil Rights Act, 42 U.S.C. § 1983, were not entitled to absolute immunity from suit. Kenneth Goldberg brought suit against the town of Rocky Hill, Connecticut ("the town"), its mayor, town manager, and councilmen in their official capacities, claiming he was wrongfully discharged. The town moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) claiming absolute immunity from suit. The district court denied the motion holding that the town was not entitled to absolute immunity. The town then brought …

In Re Grabill Corporation; Appeal Of Ncnb National Bank Of North Carolina: Four To One Against Jury Trials In Bankruptcy Courts, Merritt Mcgarrah

Mercer Law Review

In In re Grabill Corporation; Appeal of NCNB National Bank of North Carolina, the Seventh Circuit Court of Appeals joined the majority of the federal circuits in holding that bankruptcy judges do not have the express or implied authority to conduct jury trials. When the Seventh Amendment grants the right to a jury trial, the district court must conduct the trial.

Grissom V. Johnson: Just The Facts..., Dean C. Copelan

Mercer Law Review

In Grissom v. Johnson (In re Grissom), the Eleventh Circuit Court of Appeals established a case-by-case analytical model to determine when a foreclosure sale brought a "reasonably equivalent value" under 11 U.S.C. § 548. Absent fraud, collusion, or illegal or unlawful procedures, courts should presume that the price brought at the legitimate foreclosure sale is a reasonably equivalent value of the property. For a bankruptcy trustee "to avoid [a] foreclosure sale as [a] transfer of property for which [the] debtor received less than reasonably equivalent value," the trustee "must establish specific factors which undermine confidence in the reasonableness …

Lucas V. South Carolina Coastal Council: Low Tide For The Takings Clause, Marshall Currey Cook

Mercer Law Review

In Lucas v. South Carolina Coastal Council, the United States Supreme Court held that when a state government regulation rendered a landowner's property totally valueless, the landowner must be compensated unless common law nuisance doctrine at the time of the taking prohibited the use forbidden by the regulation. The Supreme Court reversed the South Carolina Supreme Court and remanded the case to determine whether any principles of nuisance and property law existed that prohibited the forbidden use under the statute-the building of an occupiable improvement. This Casenote will only address the court's analysis of the Takings Clause part of …

Lujan V. Defenders Of Wildlife: The Court Maintains Its Proper Role In Environmental Issues, Donald W. Hansford

Mercer Law Review

In Lujan v. Defenders of Wildlife the United States Supreme Court reversed the Eighth Circuit and denied standing to respondent environmental groups challenging a joint regulation interpreting section 7(a)(2) of the Endangered Species Act.

Respondent environmental groups filed suit challenging the Secretary of Interior's interpretation of section 7(a)(2). Respondents sought a declaratory judgment that the joint regulation, promulgated by the Fish and Wildlife Service and the National Marine Fisheries Service on behalf of the Secretary of Interior and the Secretary of Commerce respectively, not applying section 7(a)(2) of the Endangered Species Act to actions involving United States funding in foreign …

Nonacquiescence By The Social Security Administration As A Matter Of Law: Using Stieberger V. Sullivan As A Model, Jody L. Davis

Mercer Law Review

Intracircuit nonacquiescence by an administrative agency is the "deliberate refusal to implement holdings in binding [circuit] court [of appeals] decisions in cases adjudicated before it." When a circuit court renders a decision that differs from the agency's schematic, the agency will either issue a formal declaration that it will not follow the circuit decision, or will silently disregard the decision and attempt to impress others that it is following the circuit's rule. The Social Security Administration's ("SSA") policy of intracircuit nonacquiescence in the Southern District of New York has been successfully challenged as being "inconsistent with the constitutionally required separation …

Wallace V. Dunn Construction Co.: Defining The Role Of After-Acquired Evidence In Federal Employment Discrimination Suits, Hugh Lawson Iii

Mercer Law Review

In Wallace v. Dunn Construction Co. the Eleventh Circuit Court of Appeals faced an issue of first impression in the circuit: the role of after-acquired evidence in actions arising under federal employment discrimination statutes, namely Title VII of the Civil Rights Act of 1964 and the Equal Pay Act. The court held that after-acquired evidence cases in which an employer discovers evidence constituting a permissible reason for discharging an employee after that employee has already been discharged for an impermissible reason are distinguishable from mixed-motive cases in which an employer discharges an employee for several reasons, some permissible and …

The Changing Focus Of Government Regulation Of Agriculture In The United States, J.W. Looney

Mercer Law Review

Agriculture, broadly defined, is the country's largest industry. Fully one-fourth of the work force is involved in agricultural production, processing and manufacturing, and in the marketing and distribution of agricultural products. Agriculture's contribution to the Gross National Product is at least twenty percent of the total. Agriculture is a highly regulated industry. For example, it has been estimated that to bring an ordinary product such as the hamburger to the American consumer almost 300 statutory programs are involved. The cost of regulation for a pound of Thanksgiving turkey could be as high as fifteen cents.2 And, for highly processed products …

Article Ii Courts, David Bederman

Mercer Law Review

It is understandable that a reader may be puzzled by the title of this study. American lawyers are undoubtedly familiar with the notion of "constitutional" courts established under Article III of the Constitution.1 They also are likely to recall another class of federal tribunals, created by virtue of the legislative authority vested in Congress by Article I of the Constitution.' However, few lawyers and scholars are aware that there exists a third class of courts created by the Constitution. These are executive courts that, from time to time in the Republic's history, have been formed to administer justice, in times …

Souring On Lemon: The Supreme Court's Establishment Clause Doctrine In Transition, Roald Y. Mykkeltvedt

Mercer Law Review

In his opinion for the Court in the landmark case of Everson v. Board of Education, Justice Black held that the Establishment Clause of the First Amendment erected a high and impregnable "wall of separation" between church and state. Relying primarily on the writings of James Madison and Thomas Jefferson to discern the intentions of the framers, Justice Black maintained that, at the very least, the establishment proscription meant that

rn]either a state nor the Federal Government .. .can pass laws which aid one religion, aid all religions, or prefer one religion over another .... No tax in any …

Back To The Future: The Application Of The 1991 Civil Rights Act To Pre-Existing Claims, Jennifer Jolly Ryan

Mercer Law Review

On November 21, 1991, President Bush signed into law the Civil Rights Act of 1991 (the "1991 Act"). After two years of heated debate and compromise, Congress passed a comprehensive civil rights package that promises to strengthen and expand Title VII of the Civil Rights Act of 1964 ("Title VII") and Section 1981 of the Civil Rights Act of 18668 ("Section 1981"), largely by restoring anti-discrimination laws to their pre-1989 status as well as by instituting certain procedural changes for the courts to follow.

The 1991 Act provides access to compensatory and punitive damages, as well as trial by jury, …