Law Commons^™

Vol. 50, No. 6, December 1, 1999, University Of Michigan Law School

Res Gestae

•Prospective Faculty to Speak Within Next Week •Yingtao, Justified •Persian Pride •More Top 10 Lists •Shopping Guide •Tumble Freely •Dogma Trashed

Discriminatory Effects: Desegregation Litigation In Higher Education In Georgia, Molly O'Brien

William & Mary Bill of Rights Journal

While no one can deny the importance of desegregating all educational institutions over the past half-century, one of the unexpected consequences of the movement has been to make uncertain the legality of historically black public colleges. This uncertainty has created an opportunity for those who oppose historically black colleges, for whatever reason, to bring suit against them and potentially close their doors for not enrolling a student body that represents the racial make-up of the state. Professor O'Brien explores this issue in her Article by chronicling the progress of higher education in Georgia, from the establishment of a dual system, …

Utilizing Statistics And Bellwether Trials In Mass Torts: What Do The Constitution And Federal Rules Of Civil Procedure Permit?, R. Joseph Barton

William & Mary Bill of Rights Journal

Traditional judicial mechanisms that preserve litigants' rights to due process and a jury trial challenge courts to provide litigants their day in court in an efficient and timely manner. This challenge is made exponentially harder where the litigation concerns tortious conduct affecting a large number of persons and giving rise to latent injury. In response to the recent increase in mass tort filings, courts have sought an alternative means of adjudication-the extrapolation of a statistically average, representative plaintiff to other plaintiffs. This Note examines the problems associated with mass tort actions and how two circuit courts of appeals have implemented …

The Unusual Suspects: Journalists As Thieves, William E. Lee

William & Mary Bill of Rights Journal

The publication of confidential information by the press stands in stark contrast to the press' dedication to protecting the confidentiality of sources. While the Supreme Court has taken the position that the press may publish confidential information acquired through "routine" newsgathering methods, the contours of the phrase "routine " newsgathering methods are poorly defined In this Article, Professor Lee describes the link between the manner in which information is obtained and the First Amendment's protection of the publication of the information. He concludes that the proper analysis would separate the interests affected by publication from the interests affected by illegal …

Panel I: The First Amendment Implications Of Convergence, Andrew Jay Schwartzman, Nicholas Jollymore, Janine Jaquet, Jonathan Zittrain

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Laudatory Terms In Trademark Law: Square Pegs In Round Holes, Gary J. Sosinsky

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

9th Biennial Judge Joe Lee Bankruptcy Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law, David G. Epstein, Kenneth N. Klee, Paul H. Asofsky, Beverly M. Burden, Lawrence P. King, Charles P. Normandin, John J. Jerome, Taft A. Mckinstry, Joan Lloyd Cooper, G. Ray Warner, Gerald K. Smith

Continuing Legal Education Materials

Materials from the 9th Biennial Judge Joe Lee Bankruptcy Institute held December 1999.

A Critical Review Of The Law Of Business Loss Claims In Georgia Eminent Domain Jurisprudence, Charles M. Cork Iii

Mercer Law Review

The Georgia Constitution provides that "private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid." While the courts have recognized that a business is property within the meaning of the constitution, case law would rewrite this provision more or less as follows:

Private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid, except that the business of a property owner may be partially taken or damaged without compensation, and except that the business of a property owner or tenant may be temporarily …

Engagement Letters In Transactional Practice: A Reporter's Reflections, D. Christopher Wells

Mercer Law Review

In recent years, lawyers have turned increasingly to written contracts, usually called "engagement letters," to memorialize their professional representations. This practice grows absent specific directives requiring such writings, apparently deriving from professional preference rather than mandatory rule. It grows also despite scant attention paid by law reviews and bar publications. Only infrequently do publications appear noting this practice or offering advice on drafting engagement letters. Even continuing legal education programs give them only occasional attention.

One of the most ambitious treatments of engagement letters came in 1997 from the State Bar of Georgia in the form of a report from …

Commercial Law, Robert A. Weber Jr.

Mercer Law Review

• Sales
• Notes and Guarantees
• Secured Transactions
• Drafting Considerations
• Collection Issues
• Miscellaneous

Construction Law, Brian J. Morrissey, Timothy N. Toler

Mercer Law Review

The decisions rendered by the Georgia Supreme Court and Georgia Court of Appeals during this one-year survey period included a small opening in lender liability, a minimalist view of the requirements of evidence as it pertains to the law of fraud, an extensive discussion of the law of damages as it applies to construction contracts, and a harsh result because of failure to comply with the requirements of the mechanic's and materialmen's lien statute. This Article addresses these significant movements in the law and some of the reaffirmations of existing law in the construction field between June 1, 1998, and …

Domestic Relations, Barry B. Mcgough, Gregory R. Miller

Mercer Law Review

Of the domestic relations cases decided by the Georgia Supreme Court and the Georgia Court of Appeals during the survey period, twenty-seven are digested here. Possibly the most notable events of the survey period were pieces of legislation that were not enacted. A bill to restore direct appeals for certain domestic relations cases did not make it to the Governor's desk, and the Governor vetoed a bill that would have required trial judges hearing custody cases to consider the custodial elections of children between the ages of twelve and fourteen. While the Georgia General Assembly otherwise focused on ways to …

Evidence, Marc T. Treadwell

Mercer Law Review

The survey period saw a number of cases raising significant evidentiary issues. Most notable is the continuing evolution of the necessity exception to the rule against hearsay. During the survey period, the Supreme Court added a third prong to the test for the admission of evidence pursuant to the necessity exception, and thus seemingly narrowed the scope of the exception. However, the court also expanded the circumstances that constitute the "unavailability" of a witness. The net effect seems to be an expansion of the necessity exception.

Legal Ethics, Roy M. Sobelson

Mercer Law Review

This Article covers the rules, cases, ethics opinions, and other matters decided by the Georgia Supreme Court, the Georgia Court of Appeals, and a federal district court between June 1, 1998, and May 31, 1999, that have most affected, or may affect, Georgia lawyers. Many eyepopping headlines about lawyers and their profession filled the survey period. Although very few of the underlying cases made or changed any substantive law, they may well have substantially altered the landscape of lawyering, creating or illuminating various pitfalls and land mines.

One Georgia lawyer, disbarred for murdering his landlord, avoided the death penalty only …

Local Government Law, R. Perry Sentell Jr.

Mercer Law Review

The City Attorney served (in those days) simultaneously as Judge of the Recorder's Court. On convening that court one Monday morning, he was shocked to see one of the community's most prominent citizens before him, charged with "drunk and disorderly."

I inquired as to the type of plea he wished to enter. Evidently having heard of "nolo contendere" but not remembering the exact nature or pronunciation of the plea, the citizen responded: "I would like to plead low profile."

The "law" of local government, both decisional and statutory, frequently fosters a similar sentiment.

Wills, Trusts, And Administration Of Estates, Mary F. Radford

Mercer Law Review

This Article summarizes the major cases and legislative enactments relating to Georgia fiduciary law during the period June 1, 1998 through May 31, 1999. Most of the cases described in this Article were decided under Georgia's Probate Code as it existed prior to the extensive revisions that became effective on January 1, 1998. When appropriate, this Article will discuss briefly how the amendments that appear in the Revised Probate Code of 19981 will affect the issue under discussion.

It's Not Just Hair: Historical And Cultural Considerations For An Emerging Technology, Deborah Pergament

Chicago-Kent Law Review

History reflects the social, religious and political importance of human hair. Individuals have used hairstyles to flaunt social conventions about gender, race, sexual identity, and social status. Totalitarian governments have regulated hairstyles as a means of social control and dehumanization. Today, advances in technology now make it possible to discover information about an individual's current or potential health status. Judicial decisions and administrative regulations offer individuals limited protection from state or institutional intrusion into the information revealed by genetic hair analysis. This Article argues that the explosion of technologies that use hair to reveal intimate details of an individual's biological …

I-Dna-Fication, Personal Privacy, And Social Justice, Eric T. Juengst

Chicago-Kent Law Review

No abstract provided.

Past Sexual Conduct In Sexual Harassment Cases, Lisa Dowlen Linton

Chicago-Kent Law Review

No abstract provided.

Osha Reform: An Examination Of Third Party Audits, Anne T. Nichting

Chicago-Kent Law Review

No abstract provided.

Owning Genes: Disputes Involving Dna Sequence Patents, John Murry

Chicago-Kent Law Review

No abstract provided.

Keynote Address: Commons And Code, Lawrence Lessig

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Role Of "Stories" In Civil Jury Judgments, Reid Hastie

University of Michigan Journal of Law Reform

A brief review of psychological theories of juror decision making is followed by an introduction to "explanation-based" theories of judgment. Prior empirical studies of explanation-based processes in juror decision making are then reviewed. An original empirical study of jurors' judgments concerning liability for punitive damages is presented to illustrate the explanation-based approach to civil decisions.

Jury Trials In The Heartland, Stephen E. Chappelear

University of Michigan Journal of Law Reform

In this Article, Stephen Chappelear draws on his study of civil jury trials in the Franklin County Court of Common Pleas in Columbus, Ohio. He concludes that trial by jury results in justice. Despite the popular belief that juries are modern day Robin Hoods, empirical data suggests that their verdicts are lower than commonly believed.

Jury Trial Techniques In Complex Civil Litigation, Ronald S. Longhofer

University of Michigan Journal of Law Reform

Ronald Longhofer, an experienced litigator, discusses the challenges inherent in trying a complex civil case to a jury. He explores aspects of complex litigation that often impede jurors from effectively hearing such cases. In conclusion, he suggests litigation techniques which have proved successful in overcoming such obstacles and effectively translating complex evidence to jurors.

A Commerce Clause Challenge To New York's Tax Deduction For Investment In Its Own Tuition Savings Program, Amy Remus Scott

University of Michigan Journal of Law Reform

The Internal Revenue Code provides guidelines for states to create and maintain college tuition savings programs which offer federal tax benefits to investors. Several states have enacted tuition savings plans in accordance with these guidelines. In addition to the federal tax benefits allowed, New York offers a state tax deduction to New York residents who invest in its plan, the New York College Choice Tuition Savings Program. New York does not offer the deduction, however, to residents who invest in comparable programs offered by other states. The tax deduction thus creates an incentive for residents to invest in the in-state …

When Balance And Fairness Collide: An Argument For Execution Impact Evidence In Capital Trials, Wayne A. Logan

University of Michigan Journal of Law Reform

A central precept of death penalty jurisprudence is that only the "death worthy" should be condemned, based on a "reasoned moral response" by the sentencing authority. Over the past decade, however, the Supreme Court has distanced itself from its painstaking efforts in the 1970s to calibrate death decision making in the name of fairness. Compelling proof of this shift is manifest in the Court's decisions to permit victim impact evidence in capital trials, and to allow jurors to be instructed that sympathy for capital defendants is not to influence capital decisions. This Article examines a novel strategy now being employed …

Life After Adarand: What Happened To The Metro Broadcasting Diversity Rationale For Affirmative Action In Telecommunications Ownership?, Leonard M. Baynes

University of Michigan Journal of Law Reform

The United States Supreme Court severely restricted affirmative action policies in Adarand Constructors, Inc. v. Pena. In this opinion, a majority of the Court held that all state or federally mandated affirmative action programs are to be analyzed under strict scrutiny. This test requires affirmative action programs to meet a compelling governmental interest and be narrowly tailored.

Adarand raised issues concerning the validity of the Federal Communications Commission's affirmative action ownership policies. Previously, the Court in Metro Broadcasting, Inc. v. FCC found the FCC minority ownership policies constitutional under a lower (intermediate) standard of review. In Adarand, the Court …

Increasing Consumer Power In The Grievance And Appeal Process For Medicare Hmo Enrollees, Kenneth J. Pippin

University of Michigan Journal of Law Reform

Federal law requires that Health Maintenance Organizations (HMOs) and Managed Care Organizations (MCOs) provide Medicare beneficiaries with specific grievance and appeal rights for challenging adverse decisions of these organizations. The Health Care Financing Administration (HCFA) is charged with enforcing these regulations. Currently, however, HCFA contracts with HMOs, allowing them to enroll Medicare beneficiaries despite the fact that many of the statutory and regulatory requirements are ignored by the Medicare HMOs. This is problematic because the elderly Medicare population may not be able to independently and adequately challenge the HMO's denial of care or reimbursement. Because HCFA has been reluctant and …

What Money Cannot Buy: A Legislative Response To C.Rac.K., Adam B. Wolf

University of Michigan Journal of Law Reform

Children Requiring a Caring Kommunity (C.R.A.C.K.) is an organization that pays current or former drug addicts $200 to be sterilized. While generating great public controversy, C.R.A.C.K. is expanding rapidly throughout the country. Its clients are disproportionately poor women of color, who are coerced by the offer of money into permanently relinquishing their reproductive rights. This Note argues that C.R.A.C.K. is a program of eugenical sterilization that cannot be tolerated. Moreover, C.R.A.C.K. further violates settled national public policy by offensively commodifying the ill-commodifiable, by demeaning women, and by starting down a slippery slope with devastating consequences. This Note proposes legislation that …