Law Commons^™

The Peculiarity Of Per Curiam: In The Georgia Supreme Court, R. Perry Sentell Jr.

Mercer Law Review

On notable occasions, the format of a message acquires a heritage equal in significance to the message itself. Because of its history, familiarity, intrigue, or sheer repetition, an account's style of presentation may serve not only to characterize the account, but also to condition its recipient to a pre-ordained demeanor of expectation. Style and substance are thus comingled, and the medium subsumes the message.

It should come as no surprise that the described phenomenon claims a special affinity to the law and to legal "messages." Much of the information transmitted in law and in legal circles projects history, familiarity, intrigue, …

Business Associations, Paul A. Quirós, Lynn S. Scott, William B. Shearer Iii

Mercer Law Review

This Article surveys recent developments in Georgia's corporate, securities, partnership and banking law. It covers noteworthy cases decided during the survey period' by the Georgia appellate courts, United States district courts located in Georgia, and the Eleventh Circuit Court of Appeals. Also included in this Article are highlights of recent revisions to the Official Code of Georgia Annotated ("O.C.G.A.").

Georgia Death Penalty Law, Mike Mears, Ken Driggs

Mercer Law Review

This Article covers death penalty decisions from the Georgia Supreme Court for the period from January 1, 1999 to May 31, 2000. It primarily discusses direct appeal decisions but reaches cases in a few other settings as well. This Article does not discuss holdings in capital cases that are common to all criminal appeals but is limited to death penalty law. Recent developments in Georgia death penalty law are considered in the order they would appear in a capital trial. In the period covered by this Article, the Georgia Supreme Court considered thirteen death sentences imposed in superior courts following …

Criminal Law, Franklin J. Hogue, Laura D. Hogue

Mercer Law Review

This year we surveyed hundreds of criminal law cases to select those we thought most worthy of inclusion in this survey. We have no doubt that other lawyers practicing criminal law would have included other cases and left out some we included. This is a survey of the vast everchanging landscape of criminal law, and the practitioner may use this article as a starting point for the careful and detailed research that must be done in actual cases.

• Pretrial Issues
• Guilty Plea
• Jury Selection
• State's Case in Chief
• Defense Case
• Sentencing
• Appellate Review
• Mandamus

Evidence, Marc T. Treadwell

Mercer Law Review

Hard cases, it is said, make bad law. Criminal prosecutions for child molestation and abuse are likely the hardest cases of all. Apart from their horrific facts, they present tremendous evidentiary challenges to prosecutors, primarily because of the victims' youth. Consequently, Georgia's appellate courts have repeatedly fashioned new evidentiary rules to assist prosecutors in such cases. Whether these hard cases make bad law no doubt depends on one's perspective. Without question, however, appeals involving child molestation and abuse continue to make new law, and the current survey period was no exception.

Education Law, Jerry A. Lumley

Mercer Law Review

Primarily because of Governor Barnes' "A Plus Education Reform Act of 2000" ("the Reform Act"), Georgia experienced sweeping changes in the area of education law during the past year. This Article discusses the Reform Act, other education legislation, and decisions of Georgia appellate courts in the area of education during the past year.

Insurance, Stephen L. Cotter, C. Bradford Marsh

Mercer Law Review

Although last year the Georgia General Assembly actively worked on managed care and the appellate courts stymied subrogors, legislation was light and appellate litigation routine this survey year. Many appellate opinions were reminders of coverage processing requirements (send the sixty-day "bad faith" demand for payment). Other opinions applied established insurance law principles to particular fact patterns (does every road wreck in Georgia have an appellate coverage decision?). All concerned are having some difficulty adjusting to Georgia's gradual departure from the traditional "four corners" coverage test analysis. The supreme court did breathe life into the hope for liability coverage for sexual …

Legal Ethics, L. Ray Patterson, William P. Smith Iii

Mercer Law Review

Two events of particular importance to Georgia lawyers occurred during the survey period. First, the Supreme Court of Georgia adopted The Georgia Rules of Professional Conduct on June 12, 2000 to become effective January 1, 2001. The basis for the new rules is the American Bar Association ("ABA") Model Rules of Professional Conduct, adopted by the ABA in 1983 to supersede the ABA Model Code of Professional Responsibility. The new code will replace both the Georgia Code of Professional Responsibility and the Standards of the State Bar Rules. Second, the American Law Institute adopted the Restatement of the Law Governing …

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

Mercer Law Review

Of the domestic relations appellate cases decided during the survey period, eighteen are digested here.' As has been the recent trend, the Legislature and the appellate courts have continued to focus primarily on issues surrounding children.

• Divorce
• Child Custody
• Legitimation
• Child Support
• Alimony

Commercial Law, Robert A. Weber Jr.

Mercer Law Review

This year's survey article attempts a synthesis of case law subdivided according to various aspects of a commercial practice. Topics discussed include banking/lender issues, collections, sales of businesses, pitfalls on the front end of a commercial transaction, and a miscellaneous catchall for cases that stubbornly defy categorization.

• Bank/Lender Issues
• Collections
• Pitfalls on the Front End
• Sales of Businesses
• Miscellaneous

"Garbage In, Garbage Out": The Litigation Implosion Over The Unconstitutional Organization And Jurisdiction Of The City Court Of Atlanta, Edward C. Brewer Iii

Mercer Law Review

The City Court of Atlanta, the primary traffic court for Atlanta, Georgia, has exercised jurisdiction since 1996 over more than one million traffic violations and, since 1988 and under two statutes, some fifty thousand nontraffic misdemeanors. The City Court's first predecessor, the Traffic Court of Atlanta, adjudicated traffic law violations from 1955 to 1967 and was replaced in 1967 by a second court, also known as the City Court, which existed until 1996. That City Court's jurisdiction was expanded in 1988 to include nontraffic misdemeanors arising from the same occurrence as the traffic violation. In 1996 the City Court was …

Torts, Deron R. Hicks, Jacob E. Daly

Mercer Law Review

• Dog Bite
• Intentional Infliction of Emotional Distress
• Premises Liability
• Carriers
• Products Liability
• Bovine Jurisprudence

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

Mercer Law Review

This Article surveys case law and legislative developments in the area of real property law in Georgia during the period from June 1, 1999, to May 31, 2000. As in past surveys, the authors do not attempt to chronicle each case and statute that affects real property law. Rather, the authors selected the decisions and statutes discussed in this Article for their significance and interest to participants in the everyday practice of real estate law in this state. Several cases discussed below revisited issues from recent surveys and enlarged upon or clarified the holdings from those prior cases.

• Title to …

Worker's Compensation, H. Michael Bagley, Daniel C. Kniffen, Katherine D. Dixon, Marion Handley Martin

Mercer Law Review

For workers' compensation, the 1999-2000 survey period was largely notable for a number of legislative changes and for another year in which Georgia's appellate courts dealt with numerous cases interpreting the exclusive remedy provisions of the Workers' Compensation Act. As always, however, the appellate courts also decided numerous workers' compensation cases, with issues ranging from the "any evidence" rule to superior court judgments.

Additional legislative activity is possible in the coming year as a special commission appointed by Governor Barnes readies a report, due in April 2001, on proposed changes to the workers' compensation system.

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 from June 1, 1999 through May 31, 2000. Many 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. References in this Article to former code sections will refer to the pre-1998 Probate Code, and all other references will be to the Revised Probate Code of 1998.

Local Government Law, R. Perry Sentell Jr.

Mercer Law Review

The arresting officer established the case and the Defendant, sensing the inevitability of his plight, entered a plea of guilty. The City Court Judge, a compassionate man, ... began his routine of delivering a short lecture on the evils of alcohol .... "Now you see, John, this... is a perfect example of what happens when you start drinking. You go out, you get drunk, you get behind the wheel, and here you are severely injured. By the way, what's your prognosis?" It was apparent ... that [the Defendant] considered the Judge's question to be of utmost importance. However, it was …

Trial Practice And Procedure, C. Frederick Overby, Jason Crawford, Joshua Sacks, Richard A. Griggs, Matthew E. Cook

Mercer Law Review

This survey period is most notable for the diversity of cases touching upon trial practice and procedure decided by the Georgia appellate courts. Among those were cases fleshing out the permissible parameters of attorney-client contractual relations, scaling back the malpractice affidavit pleading requirement, defining further what constitutes a doctor-patient relationship, interpreting the wrongful death act to determine who can properly bring a claim, and declining to apply the self-contradictory testimony rule to a party's expert witness. Other important decisions addressed previously undecided evidentiary questions, confused medical providers attempting to comply with thirdparty requests for production of documents, and expanded the …

Law, Business, And Politics: Liability For Accidents In Georgia, 1846-1880, James L. Hunt

Articles

No abstract provided.

Bankruptcy, W.H. Drake Jr., Christopher S. Strickland

Mercer Law Review

Undeniably, 1999 proved to be an important year for bankruptcy in the Eleventh Circuit Court of Appeals, with the circuit ultimately producing eleven opinions bearing upon the debt relief process. In keeping with the cosmopolitan nature of bankruptcy practice, these decisions involved the court's performance of diversified tasks, ranging from the interpretation of intricate Bankruptcy Code provisions to the construction of governing requirements from the Uniform Commercial Code and the resolution of potential conflicts between the bankruptcy process and various constitutional or state law provisions. Provided below is an overview of each decision rendered during 1999.

Evidence, Marc T. Treadwell

Mercer Law Review

This survey marks the fourteenth year the author has surveyed Eleventh Circuit evidence decisions. During these years there has been, in the author's opinion, an unmistakable trend-a trend that continued during the current survey period. In stark contrast to the days when the Eleventh Circuit rigorously examined district court evidentiary decisions and freely reversed those decisions, the Eleventh Circuit now carefully defers to district judges. The abuse-of-discretion standard that has always governed evidentiary issues on appeal now seems to be the standard of review in practice as well as in name.

Absent some action by Congress, the most extensive changes …

Lilly V. Virginia: Answering The Williamson Question—Is The Statement Against Penal Interest Exception "Firmly Rooted" Under Confrontation Clause Analysis?, Kim Mark Minix

Mercer Law Review

In Lilly v. Virginia the United States Supreme Court reaffirmed the principle that the statement against penal interest exception to the hearsay rule is too large a class for effective Confrontation Clause analysis. However, the Court held that confessional statements made by an accomplice that incriminate a criminal defendant, a subcategory of this exception, are not within a "firmly rooted" exception as recognized under the Confrontation Clause.

Antitrust, Michael Eric Ross

Mercer Law Review

The Eleventh Circuit's 1999 term was unremarkable for its antitrust jurisprudence. The court published only three antitrust decisions.

Morton's Market, Inc. v. Gustafson's Dairy, Inc. 198 F.3d 823 (11th Cir. 1999); Lowell v. American Cyanamid Co., 177 F.3d 1228 (11th Cir. 1999); MCA Television Ltd. v. Public Interest Corp., 171 F.3d 1265 (11th Cir. 1999). A fourth decision, Laker Airways, Inc. v. British Airways, PLC, 182 F.3d 843 (11th Cir. 1999), involved an antitrust action, but the opinion concerned application of FED. R. CIV. P. 19 and did not turn on application of substantive antitrust law. …

Environmental Law, W. Scott Laseter, Chintan K. Amin

Mercer Law Review

Perhaps following broader legal trends, the Eleventh Circuit's environmental law decisions in this survey period suggest a rise in the importance of state law, both as it might impact enforcement of federal environmental programs and as a source of independent environmental remedies. As an example of the former, the court narrowed the extent to which the absence of a state-level program to implement the federal Clean Water Act's permit requirement shields a member of the regulated community from the obligation to obtain a permit. As an example of the latter, the court affirmed an award of $4,350,000 in punitive damages …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

The 1999 survey period was another active year for employment discrimination litigation in the Eleventh Circuit and before the United States Supreme Court. In addition to the many cases decided by the Eleventh Circuit, the Supreme Court rendered several key decisions defining the scope of the Americans with Disabilities Act and redefining the concept of sovereign immunity. The Court also set standards for punitive damages awards under Title VII. Each of these decisions are discussed in detail below.

Appellate Practice And Procedure, William M. Droze, Jeri N. Sute

Mercer Law Review

Rules of practice and procedure in appellate courts, such as the United States Court of Appeals for the Eleventh Circuit, significantly impact cases brought before those courts comprising the circuit. From enforcement of procedural rules requiring the timely filing of a notice of appeal to application of justiciability doctrines to determine a party's standing to bring a claim, issues of practice and procedure commonly arise at the court of appeals.

This Article explores the application of practice and procedure by the Eleventh Circuit during 1999. The topics discussed include appellate culling of appealable issues; appellate treatment of interlocutory matters; timeliness …

Constitutional Criminal Procedure, James P. Fleissner, Amy C. Reeder

Mercer Law Review

The field known as "constitutional criminal procedure" is one of the most dynamic branches of constitutional interpretation. Because most of the guarantees of the Fourth, Fifth, and Sixth Amendments have been incorporated into the Due Process Clause of the Fourteenth Amendment, the decisions of the United States Supreme Court interpreting the Bill of Rights have the effect of creating national minimum standards for both the federal and state criminal justice systems. Because every year there are many significant decisions in the field of constitutional criminal procedure, practitioners need to keep abreast of breaking developments. Of course, the Supreme Court decides …

Federal Sentencing Guidelines, James T. Skuthan, Rosemary T. Cakmis

Mercer Law Review

In 1999 the Eleventh Circuit Court of Appeals broke new ground on a variety of issues related to the United States Sentencing Guidelines ("U.S.S.G."). A significant number of cases interpreted firearms possession in connection with various offenses; loss calculations for fraud offenses; Chapter Three adjustments, such as role, obstruction of justice, and reckless endangerment; and U.S.S.G. Section 5K departures. At the same time, the court consistently refused to revisit previously decided issues, such as the constitutionality of the crack cocaine guidelines, and sided with the majority of circuits in resolving issues of first impression in the Eleventh Circuit

Intellectual Property, Michael W. Rafter

Mercer Law Review

Previous issues of the Eleventh Circuit Survey have not included articles addressing developments in the Eleventh Circuit's intellectual property jurisprudence. But as the Internet and other forms of media make an ever-increasing amount of information available to anyone anywhere, intellectual property rights are becoming increasingly significant and valuable. Therefore, no better time exists than now to add an intellectual property article to the Survey. Accordingly, this Article examines several noteworthy cases involving intellectual property rights decided by the Eleventh Circuit during 1999.

Trial Practice And Procedure, Philip W. Savrin

Mercer Law Review

This Article surveys the 1999 decisions of the Eleventh Circuit Court of Appeals that have a significant impact on issues relating to trial practice and procedure.

• Removal Jurisdiction
• Arbitration
• Abstention
• Final Judgment
• Preemption
• Jurisdiction
• Appellate Jurisdiction

Chandler V. James: Welcoming Student Prayer Back In The Schoolhouse Gate, Sarah Beth Mabery

Mercer Law Review

In Chandler v. James, the Eleventh Circuit Court of Appeals vacated the district court's order permanently enjoining enforcement of an Alabama statute that permitted student-initiated religious speech in public schools. The court of appeals concluded that permitting student initiated religious speech did not violate the Establishment Clause and such speech is protected by the Free Exercise and Free Speech Clauses of the First Amendment.