Law Commons^™

Local Government And Constitutional Torts: In The Georgia Courts, R. Perry Sentell Jr.

Mercer Law Review

The concept of governmental immunity from civil responsibility has long troubled many. An ingredient of this country's common law heritage, the concept nevertheless yields the epitome in philosophic faceoffs. On the one hand, we inherently disavow governmental divinity: we subscribe to a rule-of-law demand that government restores what it destroys. On the other hand, we recognize that government's essential mission is unique and involuntary: we understand that a strictly private-sector accounting may well imperil government's public performance. Traditionally, neither position has completely prevailed, and legal history unfolds a striking account of accommodation.

None of the accounts is more striking than …

Class Action Law In Georgia: Emerging Trends In Litigation, Certification, And Settlement, Jeffrey G. Casurella, John R. Bevis

Mercer Law Review

In the litigation world, few words trigger more attention and more debate than the term "class action." At the term's first appearance, the playing field is set. Plaintiffs urge that class actions are a necessary vehicle to litigate paltry and duplicitous claims otherwise inconvenient or uneconomical to prosecute. In response, defendants argue class actions constitute an abuse complicated by individuality and unmanageability. Rarely do the parties agree to the utility of class actions. Notwithstanding this classic disagreement, this type of litigation serves a useful purpose, filling a vacuum left otherwise empty when legislatures fail to legislate and attorneys general fail …

Commercial And Banking Law, Robert A. Weber Jr.

Mercer Law Review

Last year's article limited its coverage to cases interpreting provisions of Georgia's Commercial Code. Although the courts have provided ample material to again dedicate the entire survey to that topic, to do so would ignore other substantive bodies of law that have had a significant impact on a commercial law practice. Therefore, in addition to a review of the standard Commercial Code topics (sales, negotiable instruments and bank collections, and secured transactions), this year's survey has endeavored to summarize case law and legislative enactments within the past year in the following categories: banking and finance, consumer protection, contracts of employment, …

Domestic Relations, Barry B. Mcgough

Mercer Law Review

The survey year produced a wide array of appellate opinions with no discernible area of focus. Of particular interest were decisions holding that the relocation of a custodial parent is not alone grounds to change custody and that notice of trial by publication alone contravenes the due process rights of a pro se litigant in a divorce action in which custody of minor children is at issue. A resident can sue for divorce and an award of Georgia property even though the nonresident spouse has never been in the state. However, a resident cannot enforce a foreign divorce decree when …

Local Government Law, R. Perry Sentell Jr.

Mercer Law Review

The world of local government is a place of remarkable occurrences:

At the meeting of the governing authority, the chambers were overflowing, passions were palpable, and the media descended in droves. The vote was taken on the re-zoning petition. The council's vote was evenly split. The newly elected Mayor would have to break the tie. He announced to all that he did not know how he should vote. He then proceeded to toss a coin into the air, explaining that if it was "heads," he would vote "yes," and if it was "tails," he would vote "no." As if in …

Evidence, Marc T. Treadwell

Mercer Law Review

The survey period saw a number of cases raising significant evidentiary issues but no startling developments. Two areas in particular should be noted. As suggested in last year's survey, lawyers engaged in civil litigation should continue to be aware of decisions addressing the admissibility of collateral source payments and the remedies available when a party improperly injects the issue of collateral source payments. All trial lawyers, especially those engaged in criminal practice, should take note of the continued evolution of the "necessity" exception to the hearsay rule.

Perhaps the most striking development came not from the appellate courts but rather …

Real Property, T. Daniel Brannan, William J. Sheppard

Mercer Law Review

This Article surveys the case law and legislative developments in the Georgia law of real property from June 1, 1996 to May 31, 1997. The authors do not endeavor to chronicle every case decided or address each action by the Georgia Legislature during that period. Instead, they focus on those cases and statutory enactments that are likely to have some particular significance for legal practitioners in their day-to-day practice or that establish some new principle of law. During the past year, some of the more significant developments in real property law have come from the legislature, including the passage of …

Torts, Deron R. Hicks

Mercer Law Review

No abstract provided.

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

Mercer Law Review

One of the most difficult tasks in the writing of a survey article is that of organization. Judicial decisions and legislative enactments just refuse to appear in any logical sequence and, just as a case or statute has been neatly assigned to a certain section of the paper, an issue pops up that suggests that it would fit better in another section. Should the discussion of that case or statute be moved into that other section or left where it is?

Given this difficulty, an effort will be made to classify the materials in a way that the major issues …

Trial Practice And Procedure, C. Frederick Overby, Jason Crawford, Teresa T. Abell

Mercer Law Review

The most interesting and significant developments in the area of trial practice and procedure during the survey period came not from Georgia's appellate courts but from the Georgia General Assembly. This Article will first analyze the significant legislation that came from beneath the gold dome in 1997. It will then review the most significant appellate cases.

Workers' Compensation, H. Michael Bagley, Daniel C. Kniffen, John G. Blackmon Jr., Katherine D. Dixon

Mercer Law Review

The 1996-1997 survey period was an active one in the field of workers' compensation. Significant decisions were handed down in a number of areas that will significantly impact important parts of the workers' compensation system.

The first section of this Article reviews what, by comparison to previous years, was a relatively mild legislative session with regard to workers' compensation. The next two sections address important cases that affect the Drug-Free Workplace Act' and the defense of cases involving intoxication as well as important cases involving a claimant's burden of proof to show a change in condition. The remainder of the …

Insurance, Ralph F. Simpson

Mercer Law Review

The volume of cases that reached the appellate courts of Georgia during this survey period was greater than last year. The courts decided slightly over fifty cases this year that dealt with insurance issues. Most of these cases originated from the trial courts on declaratory judgment actions. Indeed, over twenty of the cases reviewed in this Article are declaratory judgment actions. The current trend seems to be for the insurer to file a declaratory judgment action to determine coverage issues while attempting to stay the case on the merits that gave rise to those issues. The reason for this is …

Business Associations, Paul A. Quirós, Lynn Schutte Scott, Lora A. Tarle

Mercer Law Review

This Article surveys recent developments in Georgia law in the areas of corporate, partnership, securities, and banking law. It covers noteworthy cases decided during the survey period by Georgia state and appellate courts, United States district courts located in Georgia, and the Eleventh Circuit Court of Appeals. Also included are legislative enactments by the Georgia General Assembly revising the Official Code of Georgia Annotated ("O.C.G.A.").

Labor Law, Stephen W. Mooney, Leigh Lawson Reeves

Mercer Law Review

This Article surveys the 1996 decisions of the United States Court of Appeals for the Eleventh Circuit in which the court addressed issues in the areas of traditional labor law. This Article specifically discusses decisions by the Eleventh Circuit under the Labor Management Relations Act of 1947 ("LMRA") the Fair Labor Standards Act of 1938 ("FLSA"), the Occupational Safety and Hazard Act of 1970 ("OSHA"), and the Employee Retirement Income Security Act of 1974 ("ERISA").

In this survey year, the Eleventh Circuit decided several cases involving these traditional areas of labor law. Due to the volume of cases, this Article …

Why Coercion Should Be A Defense In Section 1 Cases Involving Vertical Agreements, Chad Plumley

Mercer Law Review

In recent years, antitrust analysis has shifted from historical reasons for wanting to stop agreements in restraint of trade, such as promotion of individual competition, to a more economic based analysis which focuses on efficiency and output. This change in analysis has impacted how coercion is viewed in antitrust analysis. Traditionally, courts looked at whether a party had been coerced to determine if there was a violation of the Sherman Act. In section 1 cases, where the emphasis is on whether there is an agreement, courts have used evidence of coercion to find an agreement between the parties even when …

Trial Practice And Procedure, Philip W. Savrin

Mercer Law Review

This Article surveys the 1996 decisions of the Eleventh Circuit Court of Appeals that have a significant impact on issues relating to trial practice and procedure.

Federal Taxation, Ben E. Muraskin, James A. Lawton, Tiffani W. Greene

Mercer Law Review

No abstract provided.

Workers' Compensation And The Compensability Of Attenuated Injuries: "One Man's Stress Is Another Man's Pleasure", Jack Pritchard

Mercer Law Review

The compensability of stroke-related deaths in workers' compensation cases is a hotly contested matter, and the compensability of strokes precipitated by so-called job-stress has run a dividing line between Georgia courts. This Article will provide the reader with the history of the law which gave rise to this particular issue and develop the controversy while determining the reasoning behind the opposing opinions. This Article will also provide the reader with some insight into the practical effects of a Georgia Supreme Court decision on this issue one way or another.

In order to aid the reader in a more complete understanding …

Securities Regulation, John L. Latham, Jenna L. Fruechtenicht

Mercer Law Review

This Article surveys significant cases decided by the United States Court of Appeals for the Eleventh Circuit during 1995 and 1996 in the field of securities regulation. This Article also examines select Supreme Court decisions and Congressional enactments during this survey period that affect Eleventh Circuit precedent.

The most significant development during this survey period was the enactment of the Private Securities Litigation Reform Act of 1995. Because the legislation affects a number of historical precedents and implements substantial changes in the area of securities regulation, this survey must begin with that Act.

Federal Sentencing Guidelines, Deborah R. Jordan

Mercer Law Review

The rule of law governing sentencing in the federal courts is becoming more and more of an intellectual exercise; one that may be interesting to the academics, but is confusing and frustrating to the individuals affected by the process. A review of the decisions issued in 1996 by the Court of Appeals for the Eleventh Circuit, as well as those of the United States Supreme Court, confirms this trend to intellectualize the sentencing process.

Most people who are confronted by the criminal justice system have strong emotions attached to the experience. Crime victims have suffered unjustly and want to see …

In The Interest Of R.E.W.: Visitation Rights Of Homosexual Parents In Georgia, Allison Strazzella Brantley

Mercer Law Review

In a 1996 case, In the Interest of R.E.W., the Georgia Court of Appeals addressed an issue of first impression concerning the visitation rights of a noncustodial homosexual parent. The court set a tolerant precedent when it awarded the noncustodial homosexual father unsupervised visitation rights with his child.

Environmental Law, W. Scott Laseter, Julie V. Mayfield

Mercer Law Review

This Article marks the fourth survey of environmental law in the Eleventh Circuit. In terms of environmental issues, the most recent period was an active one for the Eleventh Circuit and its associated district courts during which the appellate court handed down its first Endangered Species Act decisions; issued a sweeping decision under the Comprehensive Environmental Response, Compensation, and Liability Act; and heard several other cases raising important environmental questions. Additionally, the survey period saw a federal district judge from Alabama strike a blow against Superfund's vaunted armor

Constitutional Civil Law, Albert Sidney Johnson

Mercer Law Review

The 1996 survey period was a reasonably quiet year for the United States Court of Appeals for the Eleventh Circuit in terms of dramatic developments in civil constitutional law. The most significant labor of the court of appeals was directed toward accommodation of developing law in the United States Supreme Court surrounding the application of evidentiary sufficiency standards to qualified immunity inquiries. The Eleventh Circuit continued its resolve against exercising pendent appellate jurisdiction in the aftermath of the Supreme Court's directive in Swint v. Chamber County Commission. The court of appeals had occasion to consider, in three separate contexts, …

Antitrust, Michael Eric Ross, Jeffrey S. Cashdan

Mercer Law Review

The Eleventh Circuit Court of Appeals issued seven antitrust decisions in 1996. Only one opinion addressed substantive antitrust issues. The others turned on procedural or immunity grounds. Antitrust defendants continued their dominance on appeal, prevailing in all but one action.

Bankruptcy, W. Homer Drake Jr., Michael M. Duclos

Mercer Law Review

During 1996, the United States Court of Appeals for the Eleventh Circuit decided twenty-three cases in the area of bankruptcy law. These decisions covered a wide variety of issues arising under the Bankruptcy Code, as well as several issues concerning nonbankruptcy law. This Article is a survey of the bankruptcy decisions rendered by the Eleventh Circuit in 1996.

Admiralty, Thomas S. Rue

Mercer Law Review

The Court of Appeals for the Eleventh Circuit decided fourteen admiralty cases with written opinions in 1996. Four of the decided cases involved issues of first impression. Of the cases involving issues of first impression, one considered the tension between a shipowner's right to a nonjury trial in admiralty of its right to limitation of liability and the damage claimants' right to a jury trial in a forum of their choice. In that case, the Eleventh Circuit allowed a multiple-claims-inadequatefund case to be transformed into the functional equivalent of a single claim case, thereby creating another exception to the shipowner's …

Constitutional Criminal Procedure, James P. Fleissner

Mercer Law Review

The Fourth, Fifth, and Sixth Amendments of the United States Constitution are the three pillars of the American system of criminal justice. The three amendments make procedural guarantees using enigmatic terms that are given meaning by those with the power of interpretation. The Fourth Amendment protects us from "unreasonable searches and seizures." The Fifth Amendment includes a guarantee of "due process of law." The Sixth Amendment guarantees a "speedy" trial. In the years since 1791, when these provisions were enshrined in the Bill of Rights, the courts have played the leading role in shaping the scope of these broad pronouncements. …

Employment Discrimination, Richard L. Ruth

Mercer Law Review

The 1996 survey period presented a rather unique year for the Eleventh Circuit in the employment discrimination arena. For example, the long anticipated wave of Americans with Disabilities Act ("ADA") litigation finally reached shore. In a different twist, employers fared better than in past years on summary judgment appeals. Finally, the first reported retaliation case in the Eleventh Circuit arising under the Employee Retirement Income Security Act ("ERISA") was decided. In all, as the following discussion will amply illustrate, it was a very busy year for employment law in the Eleventh Circuit, with significantly more noteworthy cases on appeal.

Evidence, Marc T. Treadwell

Mercer Law Review

Previous surveys have addressed the trend--or at least what the author perceives to be the trend--of the Eleventh Circuit Court of Appeals in recent years to defer to district court judges' evidentiary decisions. This recent trend can be contrasted with the activism displayed by Eleventh Circuit judges in decisions discussed in earlier survey articles. The effects of this more recent trend are fewer cases in which the Eleventh Circuit devotes extensive examination of evidentiary issues and, when evidentiary issues are addressed, marked deference to district court judges. Although this trend appeared to continue during the current survey period, two decisions …

Appellate Practice And Procedure, Lawrence A. Slovensky

Mercer Law Review

The United States Court of Appeals for the Eleventh Circuit decided several cases during 1996 which represented significant additions or modifications to the law governing appellate practice and procedure in this circuit. For example, the court attempted to clarify the circumstances in which interlocutory collateral orders involving the qualified immunity defense can be appealed, announced a new definition for "excusable neglect" in determining whether an untimely notice of appeal can be allowed, and analyzed the use of the harmless error rule in instructional omission cases. This Article will survey developments in appellate practice and procedure in the Court of Appeals …