Law Commons^™

The Ali Principles Of Corporate Governance Compared With Georgia Law, Marjorie Fine Knowles, Colin Flannery

Mercer Law Review

The American Law Institute ("ALI") is a unique institution. As one writer describes it:

The ALI is perhaps the most elite group of lawyers in the United States. Selected from the ranks of distinguished scholars and practitioners, the Institute is best known for drafting "Restatements of the Law" in various areas. These Restatements provide lawyers and judges with carefully formulated descriptions of the law and traditionally have served as authoritative guides for both legal briefs and judicial opinions.

Admission to membership in the ALI is by election, and the debates on the various works the Institute produces are most often …

Business Associations, Paul A. Quirós, Gregory M. Beil

Mercer Law Review

This Article analyzes noteworthy cases in the areas of corporate, partnership, securities and banking law decided during the survey period' by the Georgia Court of Appeals, the Georgia Supreme Court, the United States district courts in Georgia and the United States Court of Appeals for the Eleventh Circuit. Additionally, the Article highlights certain enactments by the Georgia General Assembly revising the Official Code of Georgia Annotated ("O.C.G.A.").

Construction Law, Brian J. Morrissey

Mercer Law Review

During the survey period, the appellate courts of Georgia continued to revisit certain issues that have displayed remarkable persistence in the trial courts.

For example, there were a number of attempts to impose liability directly against lenders on construction projects for the failure to insure that payments were made to contractors in such a way as to avoid the impositions of liens; however, the appellate courts failed to depart from traditional notions that lenders are typically not responsible for such failures.

Of particular significance during this survey period was the outline by the court of appeals of a new doctrine …

Domestic Relations, Barry B. Mcgough

Mercer Law Review

The survey year produced forty-two family law appellate decisions. Of that number, sixteen are digested here. Three cases and new legislation require strict application of the child support guidelines. Two decisions refine the theory of equitable division of property. Grandparents can no longer seek judicially proscribed visitation rights. Parents can now be directed to insure their lives for the benefit of their minor children.

Evidence, Marc T. Treadwell

Mercer Law Review

1. Objections
2. Relevancy
3. Privilege
4. Witnesses
5. Opinion Testimony
6. Hearsay
7. Authentication

Insurance, Maximilian A. Pock

Mercer Law Review

The Georgia Supreme Court and Georgia Court of Appeals have handed down over eighty insurance cases during this past survey year. A surprising number of these are cases of first impression. The Uninsured Motorist Act spawned about thirteen percent of the total volume of decided cases, a fact which is not surprising if one keeps in mind that the general litigation proneness of uninsured and underinsured legislation is a well-documented national phenomenon. It is estimated that one of five drivers in this country is uninsured. This can hardly be the case in Georgia. Yet, one must remember that even under …

Real Property, T. Daniel Brannan, Stephen M. Lamastra, William J. Sheppard

Mercer Law Review

This Article surveys case law and legislative developments in the Georgia law of real property for the period June 1, 1994, to May 31, 1995. The authors do not endeavor in this Article to comment upon every case or statute that touches on the law relating to real property. Instead, this Article is intended to provide practitioners with a convenient guide which focuses on developments of some significance, either by virtue of clarification of the law in a confused area or by its substantial effect on the practice generally.

1. Land Lines and Boundaries
2. Title to Land
3. Landlord/Tenant and Dispossession
4. Sales …

Local Government Law, R. Perry Sentell Jr.

Mercer Law Review

It was the law's year for public preoccupation. Whether the criminal trial of famous figures or the investigation of terrorism's unspeakable evils, law levied an unprecedented hold upon public attention. That same intensity of exposure ran its course in local government law as well. Whether judicial or legislative, a scrutiny of dominating proportions suffused Georgia's municipalities and counties in the spotlight of public concern. This survey offers an account of that scrutiny.

1. Municipalities
2. Counties
3. Legislation

Torts, Cynthia Trimboli Adams, Charles R. Adams Iii

Mercer Law Review

Elsa, soil ich dein Gatte heissen,
Soll Land und Leut' ich schirmen dir,
Soll nichts mich weider von der reissen,
Musst Eines du geloben mir:
Nie sollst du mich befragen,
Noch Wissens Sorge tragen,
Woher ich kam der Fahrt,
Noch wie mein Nam' und Art!

The renowned composer and dramaturge Richard Wagner assimilated several hundred years of German myth and legend into his epic "music drama" Lohengrin. Elsa, the paradigmatic damsel in distress, is miraculously rescued by the mysterious, sword-bearing Swan Knight, on the sole condition that, as the stranger solemnly enjoins in the passage quoted above, she never ask …

Wills, Trusts, And Administration Of Estates, James C. Rehberg

Mercer Law Review

The most recent survey period included considerably more judicial than legislative activity affecting fiduciary law, perhaps attesting to the relative stability of fiduciary law. Notwithstanding this relative stability, the issues raised in the cases ranged all the way from those of venue and jurisdiction to a case about the construction of a will probated in a now long closed estate.

While there was little substantive legislation in the area of fiduciary law, there were a few such statutes. One of these expanded upon the guardian and ward relationship, and another authorized the use of the "Financial Power of Attorney." These …

Trial Practice And Procedure, C. Frederick Overby, Jason Crawford

Mercer Law Review

Developments in the law interpreting and applying the Official Code of Georgia Annotated ("O.C.G.A.") section 9-11-9, the professional negligence affidavit pleading requirement, and Georgia's various statutes of ultimate repose overshadowed the usual decisions concerning personal jurisdiction, service of process, and venue. This review will analyze the developments in these areas of trial practice and procedure in Georgia for the survey period. Also, the authors will discuss new developments concerning Georgia's renewal and dismissal statutes, res judicata, and discovery.

Workers' Compensation, H. Michael Bagley, Daniel C. Kniffen, John G. Blackmon Jr., Phillip Comer Griffeth

Mercer Law Review

This survey period again saw the introduction of a package of amendments to the Workers' Compensation Act (the "Act") steered through the legislative process by the Chairman of the State Board of Workers' Compensation (the "State Board") and his advisory committee. Though not as dramatic as in past years, subtle changes could have significant impact. The bulk of the amendments arose out of the Board's increasing concern about fraud and abuse in the state's workers' compensation system. Meanwhile, the state's appellate courts continued to tackle the complex issues surrounding compensability of heart attack and psychological injury claims. For the most …

Legal Ethics, J. Randolph Evans, Anthony W. Morris

Mercer Law Review

In 1989, the Supreme Court of Georgia and the State Bar of Georgia embarked upon what they considered a long-range project-to raise the level of professionalism of lawyers in the state. Accordingly, the Georgia Supreme Court established the Chief Justice's Commission on Professionalism, the first such body of its kind in the entire nation. Its primary mission is to ensure that the practice of law is engaged in the service not only of the client, but also of the public at large.

During the past year, the Georgia appellate courts have focused their attention on professionalism. The courts issued significant …

Antitrust, Michael Eric Ross

Mercer Law Review

The Eleventh Circuit handed down only two antitrust decisions in 1994. Both affirmed judgments for defendants under the "state action" doctrine.

Constitutional Civil Law, Albert Sidney Johnson

Mercer Law Review

During the 1994 survey period, the United States Court of Appeals for the Eleventh Circuit experienced a period of consolidation and clarification in constitutional civil law. The application of the clearly established law test in qualified immunity determinations has become more consistent, favoring a fact-specific, circuit-based precedent rather than the more generalized test sometime applied by individual panels.

Several cases with constitutional implications were revisited en banc during the survey period producing a variety of results. In public employment cases and land use cases involving state created property rights, the Eleventh Circuit has retrenched and virtually abandoned any recognition of …

Constitutional Criminal Procedure, Edward D. Lukemire, John Lynch

Mercer Law Review

This year's survey of Eleventh Circuit criminal cases is primarily a review of those decisions which involve significant constitutional issues. As in recent years, a substantial number of the court's decisions resulted from drug prosecutions. This is due to the increase in federal resources devoted to drug prosecutions and the substantially longer sentences which often result from a federal drug conviction as compared to a state conviction for the same offense. The court also decided a great many cases involving issued interpreting the Federal Sentencing Guidelines. Even though these cases do not usually involve constitutional issues, the authors decided to …

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

Mercer Law Review

During 1994 the United States Court of Appeals for the Eleventh Circuit decided thirteen cases under the Bankruptcy Code ("Code")' in the areas of discharge and dischargeability, preferences, fraudulent transfers, exemptions, lien avoidance, executory contracts, administrative expenses, postconfirmation default, attorney fees, substantive consolidation, and bankruptcy fraud. This Article is a survey of the bankruptcy decisions by the Eleventh Circuit in 1994.

Admiralty, Thomas S. Rue

Mercer Law Review

The Court of Appeals for the Eleventh Circuit decided nine admiralty cases with written opinions in 1994. In one case the court faced for the first time the issue of whether a vessel on dry dock was on land or water for purposes of admiralty jurisdiction. In another case the court interpreted, for the first time, a statute concerning marine sanctuaries. The other seven cases did not change the law as it exists in this circuit. This was the case despite a factually attractive opportunity to relax the court's requirement that a shipper literally comply with the procedures set forth …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

Perhaps the most surprising development during the 1994 survey period is what did not happen, as opposed to what did happen. The anticipated stampede of decisions under the Americans With Disabilities Act of 1990 (the "ADA"), has not yet happened, at least at the circuit court of appeals level. Not a single ADA case was handed down by the Eleventh Circuit during the survey period. Since, at last count, there were over 30,000 ADA charges pending at the administrative charge level, this most certainly will change in the very near future. The year 1994 will also be remembered as the …

Environmental Law, W. Scott Laseter

Mercer Law Review

This Article is the third survey of environmental case law in the United States Court of Appeals for the Eleventh Circuit, and covers the period of January 1993 to December 1994. The survey comes at a time when the nation's political climate has turned dramatically to the right with the majority of both houses of Congress now being held by the Republican Party. Over the last two decades, it sometimes appeared as if Congress was pushing a reluctant judiciary uphill towards enforcing more stringent environmental laws. In the months ahead, however, Congress may instead be seen pumping the brakes to …

Federal Sentencing Guidelines, Andrea Wilson

Mercer Law Review

In 1984, Congress mandated the creation of the United States Sentencing Commission composed of presidential appointees to create guidelines for a comprehensive sentencing scheme. As a result, the United States Sentencing Guidelines ("U.S.S.G.") have been in effect since November 1, 1987, and apply to all federal criminal offenses committed since that date.

In principle, guideline sentencing should be simple. Courts should arrive at a sentencing range using calculations that first consider the criminal conduct being sentenced and then the criminal history of the offender. In practice, however, the guidelines are difficult to understand, impossible to apply evenhandedly, and frequently difficult …

Evidence, Marc T. Treadwell

Mercer Law Review

In recent past evidence surveys, the author has suggested, perhaps presumptuously, that the Eleventh Circuit has markedly decreased its level of scrutiny of district court evidentiary decisions. It appears that in most cases, the Eleventh Circuit is willing to defer broadly to the discretion afforded district judges in evidentiary rulings. As a result, the number of Eleventh Circuit decisions in which evidentiary issues played a predominant part has decreased. Decisions rendered by the Eleventh Circuit during the current survey period suggest that the court is allocating its resources to evidentiary issues in which appellate guidance is broadly needed rather than …

Securities Regulation, John L. Latham, Jay E. Sloman

Mercer Law Review

This Article surveys significant cases decided by the United States Court of Appeals for the Eleventh Circuit ("Eleventh Circuit") during 1993 and 1994 in the field of securities regulation. This Article also examines selected United States Supreme Court decisions during this survey period that affect Eleventh Circuit precedent.

Labor Law, Stephen W. Mooney, Leigh Lawson Reeves

Mercer Law Review

This Article surveys the 1994 decisions of the United States Court of Appeals for the Eleventh Circuit that impacted on the areas of traditional labor law. This Article specifically addresses decisions by the Eleventh Circuit under the National Labor Relations Act ("NLRA7), the Labor Management Relations Act ("LMRA"), the Fair Labor Standards Act of 1938 ("FLSA7), the Occupational Safety and Hazard Act ("OSHA), and the Employee Retirement Income Security Act of 1974 ("ERISA7).

Given the volume of cases decided by the Eleventh Circuit in the area of traditional labor law this past survey year, this Article does not address every …

Federal Taxation, Timothy J. Peaden

Mercer Law Review

Procedural issues once again dominated the federal tax cases decided by the Eleventh Circuit. During 1994, the court considered cases involving the assessment procedure, jurisdiction issues, transferee liability, priority of liens, and other procedural issues.

Central Bank: The End Of Secondary Liability Under Section 10(B) Of The Securities Exchange Act Of 1934, Stephen H. Brown

Mercer Law Review

In Central Bank of Denver v. First Interstate Bank of Denver, petitioner served as an indentured trustee for bonds issued in 1986 and 1988 to finance public improvements at a planned residential and commercial development. Landowner assessment lien's secured the bonds, and the covenant required the land subject to the lien be worth at least 160 percent of the bond's outstanding principal and interest. The land's developer was to provide petitioner an annual report indicating fulfillment of the 160 percent test. In January 1988, the developer reported to petitioner that land values remained unchanged from the 1986 appraisal. Shortly thereafter, …

Gottshall V. Consolidated Rail Corp.: Recognizing Negligently Inflicted Emotional Injuries Under The Federal Employers' Liability Act, J. Scott Hale

Mercer Law Review

The United States Supreme Court in Consolidated Rail Corp. v. Gottshall granted certiorari for two cases from the United States Court of Appeals for the Third Circuit ("Third Circuit"). Both cases involved claims for negligent infliction of emotional distress under the Federal Employers' Liability Act ("FELA"). In Gottshall v. Consolidated Rail Corp., the plaintiff alleged that he suffered from major depression and pest-traumatic stress disorder because his employer, Conrail, negligently forced him to watch and actively participate in the events leading to a close friend's death. Conrail dispatched plaintiff and several other employees, including plaintiff's close friend Richard Johns, …

Trial Practice And Procedure, Philip W. Savrin

Mercer Law Review

This Article surveys the 1994 decisions of the Eleventh Circuit Court of Appeals that have a significant impact on issues related to trial practice and procedure.

Hewitt V. Kalish: Qualifying As An "Expert Competent To Testify" Under O.C.G.A Section 9-11-9.1, Richard T. Hills

Mercer Law Review

In Hewett v. Kalish, plaintiff, Hewett, sued Kalish, a podiatrist, for the negligent treatment of her tarsal tunnel syndrome condition. As required by Official Code of Georgia Annotated section 9-11-9.1, plaintiff filed with her complaint the affidavit of an orthopedic surgeon, Dr. Alan D. Davis. The affidavit set forth Dr. Davis' professional credentials, his hospital affiliations, and his curriculum vitae. The relevant portion of the affidavit provided:

I am... competent to testify as an expert on behalf of [plaintiff] in an action for professional malpractice arising out of the diagnosis, care and treatment of [plaintiff] from January 1988 through …

Pre-Litigation Contractual Waivers Of The Right To A Jury Trial Are Unenforceable Under Georgia Law, E. Michelle Robinson

Mercer Law Review

In a recent decision, Bank South v. Howard, the Georgia Supreme Court held pre-litigation contractual waivers of the right to a jury trial are unenforceable in Georgia! This decision is particularly interesting in light of two factors: (1) of the jurisdictions considering this issue, Georgia is the only one to hold such waivers unenforceable; and (2) contractual arbitration agreements, which essentially waive the right to a jury trial, are enforceable in Georgia. In Bank South v. Howard, Bank South filed suit against Howard to recover over two million dollars under 1985 and 1988 guaranties. Howard raised several defenses …