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Georgia Law Review

No abstract provided.

Public Rights, Private Privileges, And Article Iii, John Harrison

Georgia Law Review

PUBLIC RIGHTS, PRIVATE PRIVILEGES, AND ARTICLE III John Harrison* This Article addresses the constitutional justification for adjudication by executive agencies that rests on the presence of a public right. The public rights rationale originated in the nineteenth century and was for many decades the dominant explanation for the performance of adjudicative functions by executive agencies. The U.S. Supreme Court most recently relied on that rationale in Oil States Energy Services v. Greene’s Energy Group in 2018. In light of the Court’s interest in the nineteenth century system, this Article explores that system in depth and seeks to identify the ways …

Assessing The Impact Of Police Body Camera Evidence On The Litigation Of Excessive Force Cases, Mitch Zamoff

Georgia Law Review

In the wake of several hotly debated and widely publicized shootings of civilians by police officers, calls for the increased use of body-worn cameras (bodycams) by law enforcement officers have intensified. As police departments across the country expand their use of this emergent technology, courts will increasingly be presented with video evidence from bodycams when making determinations in cases alleging the excessive use of force by the police. This Article tests the hypotheses that bodycam evidence will be dispositive in most excessive force cases and that such evidence will positively impact the way those cases are litigated and decided. In …

The Law And Economics Of Entrenchment, Michael D. Gilbert

Georgia Law Review

Should law respond readily to society’s evolving views, or should it remain fixed? This is the question of entrenchment, meaning the insulation of law from change through supermajority rules and other mechanisms. Entrenchment stabilizes law, which promotes reliance and predictability, but it also frustrates democratic majorities. Legal scholars have long studied this tension but made little progress in resolving it.

This Article considers the problem from the perspective of law and economics. Three arguments follow. First, majority rule can systematically harm society—even when voters are rational (i.e., not passionate) and no intense minority is present. This is because of a …

Code Revision Commission V. Public.Resource.Org And The Fight Over Copyright Protection For Annotations And Commentary, David E. Shipley

Georgia Law Review

This Article analyzes Code Revision Commission v. Public.Resource.Org, a 2018 decision in which the U.S. Court of Appeals for the Eleventh Circuit applied the public edicts doctrine and held that Georgia’s copyright on the annotations, commentary, and analyses in the Official Code of Georgia Annotated is invalid. The U.S. Supreme Court granted Georgia’s Petition for a Writ of Certiorari on June 24, 2019. About a third of states claim copyright in the annotations to their codes, so the potential impact of this decision is substantial.

This Article’s thesis is that the Eleventh Circuit was wrong and should be reversed. It …

Carrying Capacity: Should Georgia Enact Surrogacy Regulation?, Madeline Mae Neel

Georgia Law Review

While modern gestational surrogacy technology has existed for almost forty years, surrogacy is viewed as a matter of state law because the United States has yet to regulate it at the federal level. Many have advocated for either federal legislation or their own individual states to enact legislation addressing surrogacy, but Georgia is one of many states that still lacks any laws regulating—or even mentioning—surrogacy agreements. To make the process more uncertain for couples contemplating surrogacy, Georgia also lacks any case law that could provide parties to surrogacy agreements with guidance on how to proceed or how any dispute may …

Between Law And Diplomacy: The Conundrum Of Common Law Immunity, Chimène I. Keitner

Georgia Law Review

Drawing the line between disputes that can be adjudicated in domestic (U.S.) courts and those that cannot has perplexed judges and jurists since the Founding Era. Although Congress provided a statutory framework for the jurisdictional immunities of foreign states in 1976, important ambiguities remain. Notably, in 2010, the U.S. Supreme Court held in Samantar v. Yousuf that the Foreign Sovereign Immunities Act (FSIA) does not govern suits against foreign officials unless the foreign state is the “real party in interest.” This decision clarified, but did not fully resolve, conceptual and doctrinal questions surrounding the immunities of foreign officials whose conduct …

Age, Time, And Discrimination, Alexander A. Boni-Saenz

Georgia Law Review

No abstract provided.

The End Of Miller’S Time: How Sensitivity Can Categorize Third-Party Data After Carpenter, Michael Gentithes

Georgia Law Review

For over 40 years, the Supreme Court has permitted
government investigators to warrantlessly collect
information that citizens disclose to third-party service
providers. That third-party doctrine is under significant
strain in the modern, networked world. Yet scholarly
responses typically fall into unhelpfully extreme camps,
either championing an absolute version of the doctrine
or calling for its abolition. In Carpenter v. United
States, the Court suggested a middle road, holding that
some categories of data—such as digital location
information collected from cell phones—do not neatly
fall into the third-party doctrine’s dichotomy between
unprotected, disclosed information and protected,
undisclosed information. But the majority …

Amazon’S Invincibility: The Effect Of Defective Third-Party Vendors’ Products On Amazon, Amy E. Shehan

Georgia Law Review

No abstract provided.

Hiding The Ball: The Proposed Regulatory Accountability Act & Restricting Agency ‘Propaganda’, Benjamin A. Torres

Georgia Law Review

The Senate’s Regulatory Accountability Act (RAA)
seeks to substantially amend the Administrative
Procedure Act, the law governing federal agency
processes. The bill’s sponsors argue, in part, that the
RAA would improve administrative transparency and
accountability. One of the least-discussed provisions,
§ 3(c)(6), “Prohibition on Certain Communications,”
would prohibit agencies from advocating for or against
a proposed regulation during the comment period, an
indispensable component of notice-and-comment
rulemaking that affords the public a voice in the
rulemaking process. This Note recommends that
agencies should be able to exhibit their preferences at all
stages of rulemaking, because, as policymakers, agencies
should inform …

Fixing Ever-Ready: Repairing And Standardizing The Traditional Survey Measure Of Consumer Confusion, Eric D. Derosia

Georgia Law Review

In trademark infringement litigation, courts often rely
on consumer surveys that use the “Ever-Ready” method
to measure consumer confusion. Courts are
understandably careful to scrutinize consumer surveys
for ways in which their methodology might have biased
their results toward the outcome desired by their
proponents. This Article strengthens and improves such
examinations by empirically testing and improving the
Ever-Ready method itself.
The findings of four new empirical studies reported in
this Article indicate the faith placed by the courts in the
Ever-Ready method is somewhat misplaced. Seemingly
subtle variations in the wording of the Ever-Ready
questions have a consistent and …

What The Hack?! Reexamining The Duty Of Oversight In An Age Of Data Breaches, Amanda M. Payne

Georgia Law Review

Due to the proliferation of electronic data and
advancements in technology, data breaches have become
commonplace. Data breaches are a threat to
corporations of all sizes and can have devastating
impacts. Focusing solely on Delaware law, this Note
explores how doctrines such as the business judgment
rule, exculpation provisions, and heightened pleading
standards have left shareholders with limited recourse
in holding directors liable for the catastrophic
consequences of data breaches. Recognizing that
shareholders have been unsuccessful alleging
Caremark-type claims arising out of a data breach, this
Note argues that the expansion of bad faith in Walt
Disney provides alternative ground …

Two Bites At The Apple: The Prejudicial Burden In Arbitration Waiver, Alexander H. Weathersby

Georgia Law Review

No abstract provided.

The Operational And Administrative Militaries, Mark P. Nevitt

Georgia Law Review

Admiral James Stavridis collapsed in his chair, exhausted. The four-star Navy admiral had just finished a six-month whirlwind tour of over thirty nations, flying on a state-of-the-art military aircraft surrounded by an enormous staff. He met with leaders from every member of the North Atlantic Treaty Organization (NATO), the heads of Russia and Israel, and several prospective U.S. and NATO allies. Not surprisingly, he met with each nation’s senior military leaders and ministers of defense in an effort to strengthen military-to-military relations and reinforce the bonds of the Atlantic Alliance that date back to General Eisenhower and the end of …

Table Of Contents

Georgia Law Review

No abstract provided.

Is Vagueness Choking The White-Collar Statute?, David Kwok

Georgia Law Review

No abstract provided.

Guidance Is Definitive, Reality Is Frequently Inaccurate: The Lingering Saga Of Rev. Rul. 91-32, Robert L. Daily

Georgia Law Review

Partnership and international taxation are two of the
most mind-numbing and inconsistent areas of the law.
Even more confusion occurs when the two intersect, such
as when a nonresident sells an interest in a U.S.
partnership. Many have wasted precious time and
abundant ink to come up with a solution. The IRS first
tried in Rev. Rul. 91-32, concluding that a nonresident
would be subject to tax if the partnership had assets
producing income generated from property in United
States. Although the guidance was appropriately
criticized for being statutorily inconsistent, this Note
argues that it nonetheless got to the right …

Dust In The Wind: Revisiting Georgia’S Refusal To Extend Liability To Employers In Take-Home Asbestos Litigation, Phillips Workman

Georgia Law Review

No abstract provided.

Towards A Parent-Inclusive Attorney-Client Privilege, Sande L. Buhai

Georgia Law Review

Few state or federal courts recognize a parent-child
testimonial or communication privilege. Yet, courts
recognize privileges between spouses, clergy-penitent,
and therapist-patient. Supported by the Wigmore test
that legitimized these privileges, this paper argues that
the attorney-client privilege should still exist even if (1)
a client’s parent is included in an attorney-client
meeting in an advisory capacity; (2) the child discloses
contents of the attorney-client communications to the
child’s parent; or (3) the child discusses the contents of
the attorney-client communications with the child’s
parent.

Reforming Federal Vacancies, Justin C. Van Orsdol

Georgia Law Review

The Federal Vacancies Reform Act (FVRA) is a powerful but complicated and overlooked statute. At its best, it is a pragmatic mechanism designed to fill vacancies in executive agencies. But the complicated nature of the FVRA has paved the way for Presidents to manipulate its numerous loopholes in effect bypassing Senate approval when appointing federal officers. These loopholes raise several issues that threaten the existence of the FVRA—including invalidation under the Constitution. Further, regulated entities and citizens should also be concerned about invalid rule promulgation and enforcement actions, increased procurement costs, lack of agency transparency, increased risk of agency capture, …

Enhanced Scrutiny On The Buy-Side, Afra Afsharipour, J. T. Laster

Georgia Law Review

Empirical studies of acquisitions consistently find
that public company bidders often overpay for targets,
imposing significant losses on bidder shareholders.
Numerous studies have connected bidder overpayment
with managerial agency costs and behavioral biases that
reflect management self-interest. For purposes of
corporate law, these concerns implicate the behavior of
fiduciaries—the officers and directors of the acquiring
entity—and raise questions about whether those
fiduciaries are fulfilling their duty of loyalty. To address
comparable sell-side concerns, the Delaware courts
developed an intermediate standard of review known as
enhanced scrutiny. There has been little exploration,
however, of whether the rationales for applying
enhanced scrutiny …

Sinking The Island Of Constitutional Tax Immunity: A Uniform Approach To State Taxes On Goods In Transit Under The Import-Export Clause, Warren F. Smith

Georgia Law Review

The Framers of the U.S. Constitution adopted the
Import-Export Clause to prohibit the states from
interfering in international relations, to preserve import
revenue for the federal government, and to ensure
harmony between the states. The purposive inquiry
established by Michelin and Washington Stevedoring is
applied for all imports and exports except one category:
export goods in transit. The pre-Michelin decision,
Richfield Oil, provides complete constitutional tax
immunity for export goods in transit. This island of
constitutional tax immunity forces local taxpayers to
subsidize exporters and foreign consumers and unfairly
burdens coastal states with the regulatory,
administrative, and environmental costs of …

Battle Of The Sexes: Title Vii’S Failure To Protect Women From Discrimination Against Sex-Linked Conditions, Brooks Land

Georgia Law Review

No abstract provided.

A “Critical” Question Of State Law: Georgia’S Ambiguous Treatment Of Initial Appearance Hearings And Implications Of Bail Reform, Anne Miller Reynolds

Georgia Law Review

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel at critical stages of a proceeding. While the U.S. Supreme Court has not addressed whether initial bail hearings are critical stages of a proceeding, several states have elected to provide greater protection for criminal defendants by holding that bail hearings are critical stages. However, Georgia has avoided this question, as Georgia has held that initial appearance hearings, in which questions of bail are often decided, are “not often” critical stages of a proceeding. Logically, it follows that initial appearance hearings must sometimes be critical stages of …

The Good, The Bad, And The Ugly Of Online Reviews: The Trouble With Trolls And A Role For Contract Law After The Consumer Review Fairness Act, Wayne R. Barnes

Georgia Law Review

The advent of the internet has brought innumerable
innovations to our lives. Among the innovations is the
meteoric rise in the volume of e-commerce conducted on
the internet. Correspondingly, consumer-posted
information about merchants, goods, and services has
also become a rich source of information for consumers
researching a purchase online. This information takes
many forms, but a major category is the narrative review
describing the purchase and experience. Such reviews
are posted on websites such as Yelp, Amazon, and
TripAdvisor, on apps, and on social media such as
Facebook and Twitter. The amount and volume of
reviews has exploded in …

Table Of Contents

Georgia Law Review

No abstract provided.

America’S (D)Evolving Childcare Tax Laws, Shannon W. Mccormack

Georgia Law Review

Proponents touted the Tax Cuts and Jobs Act (the
TCJA)—enacted in the twilight of 2017—by claiming it
would help American working families. But while the
TCJA expanded some benefits available to parents with
dependent children, these parental tax benefits may be
claimed regardless of whether or to what extent
childcare costs are incurred to work outside the home.
To help working parents with these (often significant)
costs, Congress might have turned to two other
mechanisms in the tax law—the “child and dependent
care credit” and the “dependent care exclusion.” While
these childcare tax benefits are only available to working
parents …

Education Under Fire?: An Analysis Of Campus Carry And University Autonomy In Georgia, Brooke Anne Carrington

Georgia Law Review

In 2017, Georgia’s controversial campus carry bill was signed into law despite protest from the state’s Board of Regents, university officials, and students. Georgia is one of ten states that has implemented campus carry. Georgia’s campus carry statute is unique in that it may conflict with Georgia’s Constitution, which vests the powers of “government, control, and management” of the University System of Georgia in the Board of Regents. Georgia courts have not yet addressed what this provision of the Constitution means. This Note applies general principles of constitutional interpretation to the provision.

This Note analyzes the framers’ intent when drafting …