Law Commons^™

Administrative Law, Chelsea M. Lamb, Moses M. Tincher, Matthew M. White, Hannah M. Couch

Mercer Law Review

This Article surveys cases from the Georgia Supreme Court and the Georgia Court of Appeals from June 1, 2020, through May 31, 2021, in which principles of administrative law were a central focus of the case. Review of decisions by administrative agencies will be the first topic discussed, followed by cases discussing discretionary appeals, followed by cases discussing procedural requirements, with scope of authority to follow. The Article will conclude with cases discussing statutory construction

Construction Law, David Cook, Peter Crofton

Mercer Law Review

The year 2020 brought about interesting judicial opinions in construction law addressing licensing issues, contractual, and common-law indemnity, including the anti-indemnity statute, homeowner’s association rights, and the recovery of lost profits on incomplete work. It also addressed standard construction-law issues in unique contexts, such as construction liens and insurance coverage and exclusions. Though the year faced the COVID-19 pandemic, decisions addressing the unprecedented circumstances caused by the virus will likely come in future years. This Article surveys significant judicial, regulatory, and legislative developments in Georgia construction law during the period from June 1, 2020, through May 31, 2021.

Commercial Transportation, Madeline E. Mcneeley, Sarah L. Adle, Elizabeth M. Brooks, Joshua H. Dorminy, Stephen G. Lowry

Mercer Law Review

Commercial transportation involves all the significant forms of passenger and freight transportation across the United States. This Article surveys significant judicial, regulatory, and legislative developments in Georgia commercial transportation law from June 1, 2020, through May 31, 2021.

Criminal Law, J. Scott Key

Mercer Law Review

This Article reviews some of the most important opinions impacting the practice of criminal law delivered by the Supreme Court of the United States and the Georgia Supreme Court covering the period from June 1, 2020, up until May 31, 2021, as well as legislation adopted by the Georgia General Assembly during the 2020 session. This Article is designed to be a mere overview to both prosecutors and defense attorneys of decisions and new statutes and serves as a broad guideline on how these decisions will affect the practices.

Insurance, Thomas D. Martin, Bradley S. Wolff, Maren R. Cave

Mercer Law Review

During this Survey period, the courts in Georgia remained active despite the pandemic. In the property arena, the Survey disclosed only a few decisions from the Georgia Court of Appeals but several from the district courts in Georgia as parties grappled with coverage disputes relating to policy time limits, bad faith, and the effects of COVID-19 on business losses. In the automobile arena, the Georgia Court of Appeals addressed sovereign immunity, and the Georgia Supreme Court refined the “cause test” for evaluating a series of collisions. In the uninsured motorist (UM) arena, the court of appeals weighed in on various …

Labor And Employment Law, W. Jonathan Martin Ii, Alyssa K. Peters, Patricia-Anne Brownback, Aaron Chang, Amanda Morejon

Mercer Law Review

This Article surveys revisions to the Official Code of Georgia Annotated (O.C.G.A.) and decisions interpreting Georgia law from June 1, 2020, through May 31, 2021, that affect labor and employment relations for Georgia employers

Local Government, Russell A. Britt, Kelsey L. Kicklighter, Jennifer D. Herzog, Nick Kinsley, Jacob Stalvey O'Neal, Pearson K. Cunningham, Philip E. Friduss

Mercer Law Review

This Article addresses selected opinions and legislation of interest to the local government laws issued during the Survey period of this publication.

Real Property, Erica L. Burchell

Mercer Law Review

This Article surveys developments in Georgia real property law between June 1, 2020 and May 31, 2021. Real property law is unique in that it touches nearly every other facet of the law in some way. For instance, family law often intersects with real property law in cases of divorce. Contract law is often at the root of any real property sales or agreements—and also comes into play with issues of landlord-tenant disputes and evictions. Since real property can be, and often is, the largest asset people leave behind when they pass away, real property law certainly impacts estate law. …

Torts, Pamela A. Wilkins

Mercer Law Review

The Georgia Supreme Court’s torts decisions of the June 1, 2020, through May 31, 2021, survey period ran the gamut. Dog bite liability? Check. Proximate cause? Check. Negligent misrepresentation by a sperm bank? Alas, check. And apportionment of fault? Check, check, check. Two themes emerge from the cases of the past term. First, in the apportionment setting, one sees the court’s commitment to textualism and its readiness to interpret Georgia’s apportionment statutes as abrogating longstanding common-law doctrines. Second—and, not surprisingly, this is most apparent in the court’s business torts jurisprudence—one sees a deference to business interests: this is a business-friendly …

Wills, Trusts, Guardianships, And Fiduciary Administration, Mary F. Radford

Mercer Law Review

This Article discusses significant cases decided by the Georgia Court of Appeals during the period of June 1, 2020, through May 31, 2021, pertaining to Georgia fiduciary law, guardianship, and estate planning. This Article also describes the highlights of legislation contained in a comprehensive bill that revised and clarified the laws relating to wills, trusts, and the administration of estates and that became effective January 1, 2021.

Workers' Compensation, H. Michael Bagley, J. Benson Ward

Mercer Law Review

The June 1, 2020 through May 31, 2021 survey period was notable for a limited number of appellate decisions—which included an impactful decision from the Georgia Supreme Court overruling decades of prior precedent—and no legislation.

Electronic Wills: Why Would Georgia Choose To Delay The Inevitable?, Jacob C. Wilson

Mercer Law Review

This Comment assesses the changes in Georgia’s laws regarding the formalities of wills and analyzes how acceptance of an electronic will in Georgia would be an acceptable response to the changing times. Part I analyzes how Georgia’s wills statutes have changed and discusses how the wills law came into fruition today. Part II analyzes the Electronic Wills Act, states that have passed statutes considering the Act, and a review of Georgia’s legislative approach to the Act. Part III reviews an in-depth analysis of (a state) that has passed the Electronic Wills Act that operates in a strict compliance jurisdiction. Part …

The Patient Assistance Problem, Daniel O’Brien Lichtenauer

Journal of Law and Policy

Implemented in January 2006 as a voluntary enrollment supplement to standard Medicare plans, Medicare Part D coverage subsidizes the cost of prescription drugs for participants. However, significant gaps in coverage exist for those suffering from rare diseases that require costly drugs. Pharmaceutical companies seek to remove the powerful market force of patient price sensitivity by directly sponsoring or substantially funding “patient assistance programs” that help cover out-of-pocket costs. While pharmaceutical donors insist that their goal is strictly altruistic, the reality is that many of these programs offer a financial windfall for drug makers because they help funnel patients towards new …

One Hundred Years Of Family Law Reform In Parliament, In Court, And On Screen, Gianluca Parolin, Nadia Sonnevald, Nathalie Bernard- Maugiron, Enas Lofti

Abdou Filali-Ansary Occasional Paper Series

This paper interrogates the very form of collective decision making that legislation signifies, its operationalisation in adjudication, and its interrelation with popular culture. Through the lens of the Egyptian legal system, the paper offers case-studies of collective decision making on matters of personal status, it focuses on the state's different approach towards the regulation of personal status for its Muslim and non-Muslim citizens; in the legal context of the ‘best interests of the child’ it looks at the multiple entanglements of legislation and its eventual actualisation in Egyptian courts; and it uses classical examples of Egyptian cinema popularly associated with …

You Are Not A Commodity: A More Efficient Approach To Commercial Privacy Rights, Benjamin T. Pardue

Washington Law Review

United States common law provides four torts for privacy invasion: (1) disclosure of private facts, (2) intrusion upon seclusion, (3) placement of a person in a false light, and (4) appropriation of name or likeness. Appropriation of name or likeness occurs when a defendant commandeers the plaintiff’s recognizability, typically for a commercial benefit. Most states allow plaintiffs who establish liability to recover defendants’ profits as damages from the misappropriation under an “unjust enrichment” theory. By contrast, this Comment argues that such an award provides a windfall to plaintiffs and contributes to suboptimal social outcomes. These include overcompensating plaintiffs and incentivizing …

Walter Mondale And His Crusade For Public Accountability, Lawrence J. Jacobs

Minnesota Law Review Vols. 106:2 onward (2021-present)

This volume of Minnesota Law Review is dedicated to the memory of the Honorable Walter F. Mondale, former Vice President of the United States of America. A 1956 graduate of the University of Minnesota Law School and an editor of Minnesota Law Review Volume 39, Mondale was the 42nd Vice President of the United States, serving in office from 1977 to 1981. Following his inauguration, Vice President Mondale became the modern prototype of an activist Vice President, transforming the role from titular figurehead to valued advisor. Prior to his Vice Presidency, Mondale served as U.S. Senator for Minnesota from 1964 …

Cjeu Déjà Vu: Facilitating International Data Transfers And Avoiding Internet Balkanization In The Wake Of Schrems Ii By Enacting Targeted Reforms To Us Surveillance Practices, Jordan Francis

Minnesota Law Review Vols. 106:2 onward (2021-present)

Private and public actors collect and retain vast amounts of personal data. Governments have responded to this data revolution by passing data protection laws, which limit the collection, use, storage, and disclosure of personal data. The most comprehensive data protection scheme exists in the European Union, where the right to protection of personal data is guaranteed as a fundamental freedom. The General Data Protection Regulation (GDPR) gives that right substance by establishing a comprehensive regulatory scheme that applies to any entity processing personal data concerning an EU citizen, whether that entity is located in the EU or not. The GDPR …

Consequences Of Seeking Environmental Justice: The Lawyer Who Took On Chevron And Paid The Price, Simran Kaur

Cardozo Journal of Equal Rights and Social Justice (ERSJ) Blog

In February 2011, the environmental and human rights lawyer, Steven Donziger, won a landmark judgment against Chevron Corporation, on behalf of 30,000 Indigenous people residing in the Amazon rainforest in Ecuador. Chevron was found liable for causing toxic oil pollution that destroyed Indigenous lands and rivers. The said pollution destroyed rivers and streams used by the Indigenous people of Lago Agrio to drink water. The water contamination by Chevron contained illegal levels of metals that are known to damage the immune and reproductive systems in humans, thereby leaving some of the world’s poorest people with generations of birth defects and …

The Case For Corporate Climate Ratings: Nudging Financial Markets, Felix Mormann, Milica Mormann

Faculty Scholarship

Capital markets are cast as both villain and hero in the climate playbill. The trillions of dollars required to combat climate change leave ample room for heroics from the financial sector. For the time being, however, capital continues to flow readily toward fossil fuels and other carbon-intensive industries. Drawing on the results of an empirical study, this Article posits that ratings of corporate climate risk and governance can help overcome pervasive information asymmetries and nudge investors toward more climate-conscious investment choices with welfare-enhancing effects.

In the absence of a meaningful price on carbon, three private ordering initiatives are trying to …

We're All Originalists Now… Or Are We?: Bostock's Misperceived Quest To Distinguish Title Vii's Meaning From The Public's Expectations, Steven Semeraro

Hofstra Law Review

Two principal tenets underlie originalism-textualism: First, judicial interpreters of a statute should not use modern values to supplant original meaning because the law should change only through democratic processes. Second, original meaning is limited to the intersubjective original understanding that a reasonable reader would draw from a statute’s text. Meaning does not include anyone’s extratextual subjective expectations about how a statute should apply.

The divided Bostock Court’s decision that Title VII prohibits sexual orientation and gender identity discrimination reveals a contradiction between originalism-textualisms dual tenets. The mid-1960s public’s expectations about how Title VII would apply to sexual orientation and gender …

Table Of Contents, Editorial Board

The University of New Hampshire Law Review

No abstract provided.

Masthead, Editorial Board

The University of New Hampshire Law Review

No abstract provided.

Reconsidering The Foregone Conclusion Doctrine: Compelled Decryption And The Original Meaning Of Self-Incrimination, Norman Hobbie Jr.

The University of New Hampshire Law Review

The Self-Incrimination Clause of the Fifth Amendment prohibits the government from compelling an individual “to be a witness against himself.” The Supreme Court of the United States has long interpreted “witness” as “one who gives testimony.” Undoubtedly, this interpretation prevents the government from compelling a witness to take the stand and testify to his own demise. This interpretation also extends to the act of producing documents, giving rise to the so-called “act of production” doctrine. Yet if a court deems the testimonial value of the act minimal—in other words, not “sufficiently testimonial”—the government can compel production under the “foregone conclusion” …

Law And Sampling Theory, Jack Thorlin

The University of New Hampshire Law Review

Law involves a fundamental tradeoff, a sampling problem. In science, sampling problems emerge when trying to understand something complicated by considering discrete, manageable subsets of it—samples. When doing that, scientists must compromise between accuracy and resource-expenditure. Perfect accuracy requires infinite resources, such as a perfect digital image with infinite file size. Perfection being unattainable, scientists must decide what level of accuracy is best for any given case. Every kind of law, from parking regulations to criminal to high constitutional theory, is subject to the same dynamic.

Law’s sampling problem is the tradeoff between accurate representation of a community’s moral preferences …

End Matter

Hofstra Law Review

No abstract provided.

In Vitro Fertilization, Fertility Frustrations, And The Lack Of Regulation, Delores V. Chichi

Hofstra Law Review

No abstract provided.

Agatha Christie: A Look Into Criminal Procedure And Gender, Carmella Monico

Theses/Capstones/Creative Projects

With 2020 being the 100^th year since Agatha Christie’s first novel, The Mysterious Affair at Styles, was published, it seems fitting to celebrate such an accomplished author with a deeper look into the inner workings of her novels. While she wrote mystery novels that involved many detectives, the two most popular are Hercule Poirot and Miss Marple. This paper will examine these two detectives in regard to the criminal procedure each uses to solve their respective cases. Would her detectives’ work hold up in court then or even today? Additionally, the difference in gender between Poirot and Marple …

Information Technology And The New Capitalism, James Bessen

Faculty Scholarship

Harnessing Digitalization for Sustainable Economic Development: Insights for Asia describes digitalization’s role in raising the productive capacities of economies. It examines how digital transformation can enhance trade, financial inclusion, and firm competitiveness, as well as how greater digital infrastructure investment, internet connectivity, and financial and digital education in the region can maximize digitalization’s economic benefits. It also explains the importance of striking the right balance between the regulation and supervision of financial technology to enable innovation and safeguarding financial stability and consumer protection.

Part I of the book seeks to build an understanding of digitalization’s effects on macroeconomic performance, including …

Health Reform Reconstruction, Lindsay F. Wiley, Elizabeth Mccuskey, Matthew B. Lawrence, Erin C. Fuse Brown

Faculty Scholarship

This Article connects the failed, inequitable U.S. coronavirus pandemic response to conceptual and structural constraints that have held back U.S health reform for decades and calls for reconstruction. For more than a half-century, a cramped "iron triangle" ethos has constrained health reform conceptually. Reforms aimed to balance individual interests in cost, quality, and access to health care, while marginalizing equity, solidarity, and public health. In the iron triangle era, reforms unquestioningly accommodated four legally and logistically entrenched fixtures - individualism, fiscal fragmentation, privatization, and federalism - that distort and diffuse any reach toward social justice. The profound racial disparities and …

Regulating Mobility Limitations In The Franchise Relationship As Dependency In The Joint Employment Doctrine, Andrew Elmore

Faculty Scholarship

Franchisors often impose exhaustive operational standards on franchisees, and enforce those standards by restricting the mobility of their franchisees and their franchisees' employees. But courts often ignore mobility limits when applying joint employer doctrine. This Article argues that courts and agencies should be more likely to find, and presume, that franchisors and their franchisees are joint employers under federal and state employment law based on proof that a franchisor restricts the mobility of franchisees or their employees. In so doing, this Article traces how the Chicago School's efficiency arguments in favor of relaxing antitrust law enforcement of vertical restraints developed …