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Full-Text Articles in Law

Prisoners, Punitive Damages, And Precedent, Oh My! The Eleventh Circuit In Hoever Overrules Prior Interpretation Of The Prison Litigation Reform Act, Tatiana Dobretsova May 2022

Prisoners, Punitive Damages, And Precedent, Oh My! The Eleventh Circuit In Hoever Overrules Prior Interpretation Of The Prison Litigation Reform Act, Tatiana Dobretsova

Mercer Law Review

Imagine you are a prisoner at Dooly State Prison in Unadilla, Georgia. A squad of about thirty officers march into the prison one day, dressed in riot gear, chanting, “kill, kill, kill.” The officers begin cursing and ordering inmates to get out of their cells, even yanking some by their shirts if they are not moving quickly enough. As you and the other inmates rush out of your cells, you are subjected to body cavity searches—you are ordered to strip naked, squat and cough, turn around, and bend over, all in the presence of several officers. An officer hands you …


Government Discretion Advised (Even If It’S Unconstitutional): How The Eleventh Circuit Has Expanded The United States’S Immunity From Tort Suits, John Rodriquez May 2022

Government Discretion Advised (Even If It’S Unconstitutional): How The Eleventh Circuit Has Expanded The United States’S Immunity From Tort Suits, John Rodriquez

Mercer Law Review

Mackie Shivers, a sixty-four-year-old man, was stabbed in the eye by his mentally-ill cellmate with a pair of scissors. Although the attack left Shivers permanently blind, he received no legal remedy to compensate him for his injuries. This result is due, at least in part, to the United States Court of Appeals for the Eleventh Circuit’s decision to interpret the discretionary function exception to the Federal Torts Claim Act (FTCA) in a broader way than virtually all of its sister circuits. The holding by the Eleventh Circuit in Shivers v. United States bars FTCA claims under the exception even for …


Healthcare Law, Kathryn Dunnam Harden May 2022

Healthcare Law, Kathryn Dunnam Harden

Mercer Law Review

This Article serves as a review of significant healthcare developments in the United States Court of Appeals for the Eleventh Circuit during this past Survey period. Specifically, this Article will cover cases, legislation, and trends involving COVID-19, healthcare fraud, and reproductive rights.


Federal Income Taxation, Andrew Todd May 2022

Federal Income Taxation, Andrew Todd

Mercer Law Review

In 2021, the United States Court of Appeals for the Eleventh Circuit handed down several opinions involving U.S. federal income tax issues. Two of the court’s published opinions address federal income taxation of conservation easements. Conservation easements have been under significant scrutiny by the Internal Revenue Service (IRS), having earned a spot on the “Dirty Dozen” list of tax scams in 2019. This Article surveys the two published opinions issued in 2021 involving the U.S. federal income taxation of conservation easements.


Ding Dong! The Count Is Dead, Or Is It?: Criminal Defendants May Not Directly Appeal Convictions If Unresolved Counts Are On The Dead Docket, Lilly B. Nickels May 2022

Ding Dong! The Count Is Dead, Or Is It?: Criminal Defendants May Not Directly Appeal Convictions If Unresolved Counts Are On The Dead Docket, Lilly B. Nickels

Mercer Law Review

A defendant is indicted on two criminal counts, is found guilty on one of those counts, and is sentenced to time in prison. However, the jury could not come to a decision on the other count, so the trial court judge places the count on the court’s dead docket where the count could remain for an indefinite period of time, deeming the defendant’s case pending in the trial court. Due to the defendant’s case being classified as pending, the defendant does not have the right to a direct appeal. The defendant must helplessly serve prison time without any idea as …


The Death Penalty Standard That Won’T Die: The Georgia Supreme Court Maintains The Highest Possible Standard Of Proof For The Mentally Disabled, Alyssa Ledoux May 2022

The Death Penalty Standard That Won’T Die: The Georgia Supreme Court Maintains The Highest Possible Standard Of Proof For The Mentally Disabled, Alyssa Ledoux

Mercer Law Review

Several serious issues arise when applying the death penalty to the mentally disabled. First, the social purposes served by the death penalty, retribution and deterrence, are questionable when it comes to the mentally disabled. Retribution by execution is reserved for those at the highest level of culpability or the highest level of conscious and depraved guilt. Likewise, execution is viewed as an effective deterrent on cold calculus that is not found in individuals with a mental disability.

Second, challenges the disabled face, such as the tendency to falsely confess, the lesser ability to present a persuasive showing of mitigating factors, …


Environmental Law, Travis M. Trimble May 2022

Environmental Law, Travis M. Trimble

Mercer Law Review

In 2021, the United States District Court for the Southern District of Alabama, in an issue of first impression, concluded that the United States is not a “person” under the contribution provision of the Oil Pollution Act (OPA), and therefore the provision did not waive the sovereign immunity of the United States. For this and other reasons a plaintiff could not recover in contribution from the United States for the plaintiff’s costs of cleaning up an oil spill, even where the plaintiff alleged the spill was the result of the sole negligence of the United States. The United States District …


Commercial Transportation, Madeline E. Mcneeley, Sarah L. Adle, Joshua H. Dorminy, Elizabeth M. Brooks, Stephen G. Lowry May 2022

Commercial Transportation, Madeline E. Mcneeley, Sarah L. Adle, Joshua H. Dorminy, Elizabeth M. Brooks, 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 federal commercial transportation law affecting Georgia, Florida, and Alabama during the period from January 1, 2021, through December 31, 2021. The first three areas discussed here are subject to heavy federal regulation due to their far-reaching effects on interstate commerce: aviation, trucking and other commercial motor vehicles, and railroads. The remaining subjects covered in this Article— autonomous-vehicle technology, shareable electric bicycles, and shareable scooters—remain regulated primarily at the state and local levels but are …


Criminal Law, Thomas D. Church, Kate Forrest May 2022

Criminal Law, Thomas D. Church, Kate Forrest

Mercer Law Review

This Article provides a comprehensive review of the United States Court of Appeals for the Eleventh Circuit’s most noteworthy criminal law opinions from 2021. Section II of this Article addresses substantive criminal offenses, such as economic crimes, drug offenses, and firearm offenses, while Section III covers criminal procedure and constitutional issues arising in criminal prosecutions. Section IV deals with the Federal Sentencing Guidelines (the Guidelines) and other sentencing issues, and Section V provides a limited review of the court’s decisions in post-conviction proceedings.


Playing Hot Pot-Ato: Does Biden’S Presidency Signal The End Of Federal Marijuana Prohibition?, Sara Snowden May 2022

Playing Hot Pot-Ato: Does Biden’S Presidency Signal The End Of Federal Marijuana Prohibition?, Sara Snowden

Mercer Law Review

“Hot Potato is a very different game when the people playing are starving.” In the context of federal marijuana legalization, various branches and agencies within the government have long engaged in a game of political hot potato—tossing responsibility for legalization off into the hands of someone (anyone) else. These evasive maneuvers are not victimless. As an overwhelming majority of states have taken actions to legalize or decriminalize marijuana, unsuspecting citizens have been caught in the crosshairs between conflicting state and federal laws.

Take for example David Doe, a resident of Colorado, who suffered many afflictions. Three years ago, he was …


Admiralty, John P. Kavanagh Jr. May 2022

Admiralty, John P. Kavanagh Jr.

Mercer Law Review

The cases discussed herein represent decisions from the United States Court of Appeals for the Eleventh Circuit, as well as district courts within the Circuit, issued in 2021. While not an all-inclusive list of maritime decisions during that timeframe, the Author identifies and provides summaries of key rulings of interest to the maritime practitioner.


Creating A Civil Remedy In Georgia For Survivors Of Out-Of-State Childhood Sexual Abuse, Alexandra H. Bradley May 2022

Creating A Civil Remedy In Georgia For Survivors Of Out-Of-State Childhood Sexual Abuse, Alexandra H. Bradley

Mercer Law Review

Sexual abuse casts long shadows and causes long-lasting effects on its survivors, particularly children. Especially tragic, most abused children are abused by an adult whom that child knows and trusts. This abuse by anyone, especially by a child’s parents or close family friend, often causes lifelong emotional damage. Survivors generally do not recognize the extent of their abuse until many years later.

This late onset or delayed discovery has made it difficult for courts to provide redress. Although technically children could sue their abuser when the abuse occurs, children generally do not know they have a cause of action, nor …


Labor And Employment, W. Jonathan Martin Ii, Patricia-Anne Brownback May 2022

Labor And Employment, W. Jonathan Martin Ii, Patricia-Anne Brownback

Mercer Law Review

This Article focuses on recent cases concerning federal labor and employment laws. The following is a discussion of those opinions.


So Help Me, God, Decide This Case: The Eleventh Circuit’S New Standard For Dismissing Religious Jurors During Deliberations, Amanda Claxton May 2022

So Help Me, God, Decide This Case: The Eleventh Circuit’S New Standard For Dismissing Religious Jurors During Deliberations, Amanda Claxton

Mercer Law Review

You are on trial for a crime. Maybe you did precisely what the government claims, though perhaps not. However, a judge will not decide your fate because you exercised your constitutional right to a jury trial. During deliberations, you hear that a juror practices a religion condemning those who commit the crime you are accused of. You feel the juror would unfairly prejudice your chances of walking away freely. To your dismay, the judge refuses to dismiss the juror. You ask whether allowing this prejudicial juror to determine your fate is legal. After United States v. Brown, it is. …


How Class Action Fees Work In The Eleventh Circuit, Jeffrey G. Casurella Apr 2022

How Class Action Fees Work In The Eleventh Circuit, Jeffrey G. Casurella

Mercer Law Review

Litigating the reasonableness of attorney’s fees in a Federal Rule 23 class action is no picnic. Usually, payment of legal fees is set from a contractual arrangement between attorney and client. That is often quick and easy. Conversely, payment of class action legal fees is set by a district court. That process can be drawn out and labor intensive. In this latter situation, a district court must be persuaded, ultimately, that the amount of the award is reasonable. But what does “reasonable” mean? It is a tricky question—class action math always is—and litigating it can become contact sport.

The parties …


Navigating A Potentially Changing Landscape In Child Welfare Appellate Review, Carolyn Altman, Robert Rodatus, Amanda Trimble Apr 2022

Navigating A Potentially Changing Landscape In Child Welfare Appellate Review, Carolyn Altman, Robert Rodatus, Amanda Trimble

Mercer Law Review

Recently, the Georgia Supreme Court, in reversing the Georgia Court of Appeals decision as to a legitimation petition, held that the evidence was sufficient, by the appropriate standard of proof, for the trial court to deny the putative father’s petition to establish his legal rights to a child. This supreme court opinion, in reviewing the analysis of the court of appeals, illustrated an approach of the court of appeals in some child welfare cases to state a standard of review that defers to the trial court as trier of fact; but then, in de facto deference, to the rights of …


The Generational Squeeze: A Commentary On Multi- Generational Special Needs And Benefit Planning In Georgia, Christopher Wages Apr 2022

The Generational Squeeze: A Commentary On Multi- Generational Special Needs And Benefit Planning In Georgia, Christopher Wages

Mercer Law Review

As the generation of baby boomers—individuals born between 1946 and 1964—grow older, their children are being progressively squeezed between caring for aging parents and the demands of a family of their own, giving rise to the term “sandwich generation.” The current population of fifty-three million baby boomers over the age of sixty-five accounts for 16% of the populace. As such, younger generations are finding themselves sandwiched between the financial, emotional, and physical needs of their aging parents and young children. This challenging situation is further exacerbated for families dealing with disabilities, and this scenario is only becoming more ubiquitous. In …


Family Feuds And Circuit Splits: A Clash Between Corporate Cousins Causes The Eleventh Circuit To Revisit The “Long-Lost” Burford Abstention Doctrine, William Wheeler Apr 2022

Family Feuds And Circuit Splits: A Clash Between Corporate Cousins Causes The Eleventh Circuit To Revisit The “Long-Lost” Burford Abstention Doctrine, William Wheeler

Mercer Law Review

Corporate litigation is often a highly complex process. The rules and regulations surrounding shareholder demands, derivative lawsuits, review committees, and corporate dissolution create a convoluted procedural web that can be exceedingly difficult to untangle. Due to this complexity, federal court is an attractive choice for many civil litigants; federal forums have predictable and established rules of procedure and federal judges tend to have more time to give each case individualized consideration. These factors can accelerate and smooth the litigation process. However, throughout the last two decades, litigants in corporate dissolution actions have had no choice but to seek relief in …


The Objection Exception Is Overruled! The Georgia Supreme Court Makes A Course Correction By Reviving The Contemporaneous Objection Rule, Ryan Read Apr 2022

The Objection Exception Is Overruled! The Georgia Supreme Court Makes A Course Correction By Reviving The Contemporaneous Objection Rule, Ryan Read

Mercer Law Review

What comes to mind when you think of evidence being presented at jury trials? Typically, both sides prevent evidence to the jury, and both sides fight hard to make sure no prejudicial evidence is allowed in that would bias the jury against their client. Both sides also work hard to prepare persuasive openings and closings to further affect the jury’s perception of their client, the opposition, and the evidence that has been presented. So, when an attorney on one side makes prejudicial statements about the opposing counsel’s client, one would naturally expect an objection to be made, right? Well, in …


Fostering Equity And Accountability In Georgia’S Criminal Legal System Through Conviction Integrity Reforms, E. Addison Gantt, Meagan R. Hurley Apr 2022

Fostering Equity And Accountability In Georgia’S Criminal Legal System Through Conviction Integrity Reforms, E. Addison Gantt, Meagan R. Hurley

Mercer Law Review

An often-quoted excerpt from Berger v. United States sums up the role of a prosecutor in the criminal legal system. The context is the federal system, but it applies across the board. It begins by explaining the duty of a prosecutor: to represent the sovereign, “whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”2 Then, it turns to the real-world application of that role, instructing that prosecutors should present their cases with …


A Felicitous Meme: The Eleventh Circuit Solves The Preiser Puzzle?, Lisa N. Beckmann, Arthur O. Brown Apr 2022

A Felicitous Meme: The Eleventh Circuit Solves The Preiser Puzzle?, Lisa N. Beckmann, Arthur O. Brown

Mercer Law Review

This Article is about a legal phenomenon known as the Preiser Puzzle. More precisely, the article concerns a possible solution to the Preiser Puzzle articulated by the United States Court of Appeals for the Eleventh Circuit. In part, this Article has a descriptive aim: The Authors will explain the Eleventh Circuit’s solution both in the abstract (this section, below), and by giving issue–specific examples in section three that may prove useful to practitioners. Important issues at present include: (a) challenges to parole procedures, (b) method of execution challenges, and (c) requests for release from administrative segregation. Yet this Article also …


Click It Or Ticket, But Don’T Admit It? How Unrestrained Drivers And Passengers Take Us For A Ride, E.R. Wright Apr 2022

Click It Or Ticket, But Don’T Admit It? How Unrestrained Drivers And Passengers Take Us For A Ride, E.R. Wright

Mercer Law Review

While the COVID-19 crisis has forced societies and governments to confront new challenges and answer new questions, it has also renewed and reignited longstanding debates about the extent of individuals’ obligations to each other. In particular, the American body politic is once again embroiled in conflict over the reach of an individual’s personal choices and the extent to which consideration of the potentially harmful effects of our choices on others should shape individual behaviors. Today, this fight centers on public health measures intended to reduce the spread and severity of COVID-19, such as masking, distancing, and vaccination. Debates rage over …


From Bostock To Adams: Following The Expansion Of Rights For Transgender Students In Public School Settings, William A. White, M. Chase Collum Apr 2022

From Bostock To Adams: Following The Expansion Of Rights For Transgender Students In Public School Settings, William A. White, M. Chase Collum

Mercer Law Review

Since before the turn of the twenty-first century, it is undeniable that classrooms across the country have undergone a multitude of changes. In 2020, schooling continued through a global pandemic—forcing teachers and students alike to improvise, adapt, and overcome challenges both in the classroom and in their own homes. Now that teachers and students are attempting to return to “normal,” federal courts across the country have passed down a number of decisions that will impact students’ return to the classroom. Specifically, the Supreme Court of the United States’ landmark decision in Bostock v. Clayton County, Georgia, (Bostock) …


It Takes A Village To Provide Quality Food For Our Pets, Diantha V. Ellis Apr 2022

It Takes A Village To Provide Quality Food For Our Pets, Diantha V. Ellis

Mercer Law Review

How much does your pet mean to you? In many American households, pets have risen from the status of possessions to the role of family members. For many people, pets have even taken the place of children or are treated as one of the children. For those of us who have pets who we love as family, it is deeply concerning when reports are issued about the dangerous chemicals or toxic levels of vitamins in their food. Reading the recall reports on a food that our dog or cat has trustingly eaten every time we place it in front of …


Service By Publication: A Modern Alternative, Darrell L. Sutton, Samuel M. Lyon Apr 2022

Service By Publication: A Modern Alternative, Darrell L. Sutton, Samuel M. Lyon

Mercer Law Review

Service is perhaps the most basic practice of law imaginable. All plaintiffs must serve, and all defendants must be served, for a case to proceed forward. Without service, there is no case to settle—no legal battle to wage.

According to the Fourteenth Amendment of the United States Constitution, no state shall “deprive any person of life, liberty, or property, without due process of law[.]” Colloquially known as the Due Process Clause, this phrase has significant implications for the pendency of actions against defendants, and in particular, how those defendants are served. While “traditional” service methods, such as personal service, assure …


The Party Respectfully Requests A Jury Trial On All Issues So Triable: What Issues Are Triable To A Jury And What Issues Should Be Triable To A Jury? A Comment On The Right To A Jury Trial, With A Focus On Civil Trials, And When The Right Exists, Michael Downing Apr 2022

The Party Respectfully Requests A Jury Trial On All Issues So Triable: What Issues Are Triable To A Jury And What Issues Should Be Triable To A Jury? A Comment On The Right To A Jury Trial, With A Focus On Civil Trials, And When The Right Exists, Michael Downing

Mercer Law Review

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . .” But what about civil prosecutions? What about prosecutions under state law, not federal? What does the universally expected “right to a jury trial” really mean or afford the parties to a trial?

Under federal law and the United States Constitution, by the time the Bill of Rights was drafted, the ideal of an accused’s right to a jury trial was already deeply rooted within …


Not So Special! Georgia Court Of Appeals Clarifies Special Circumstance And Special Mission Exceptions To Vicarious Liability, Samantha Thompson Apr 2022

Not So Special! Georgia Court Of Appeals Clarifies Special Circumstance And Special Mission Exceptions To Vicarious Liability, Samantha Thompson

Mercer Law Review

The ever-increasing mobility of today’s workforce threatens employers with a risk of vicarious liability for injuries arising from their employees’ driving under the doctrine of respondeat superior. Although common law protects employers from liability for injuries arising from an employee’s commute to or from work, the special circumstance exception and the special mission exception can create vicarious liability for a Georgia employer. These exceptions bring an employee’s commute within the scope of employment when an employee acts under a special circumstance or in furtherance of a special mission at the time of an automobile accident; this creates vicarious liability for …


Social Media And Democracy After The Capitol Riot, Or, A Cautionary Tale Of The Giant Goldfish, Seth Oranburg Mar 2022

Social Media And Democracy After The Capitol Riot, Or, A Cautionary Tale Of The Giant Goldfish, Seth Oranburg

Mercer Law Review

Lately, people have been finding giant pet goldfish in lakes across America. You may see these tiny fish swimming in bowls at the county fair, but left alone in a lake or large pond, where they are dropped perhaps by a well-meaning child, they can grow to 20 pounds or more—and destroy ecosystems. The goldfish is a cautionary tale that has been told time and again in different forms, like Pandora’s box.

On January 6, 2021, a somewhat organized group of rioters overran and briefly took control of the U.S. Capitol. Social media clearly played a role in the riots …


Section 230 Of The Communications Decency Act: The “Good Samaritan” Law Which Grants Immunity To “Bad Samaritans”, Josh Slovin Mar 2022

Section 230 Of The Communications Decency Act: The “Good Samaritan” Law Which Grants Immunity To “Bad Samaritans”, Josh Slovin

Mercer Law Review

In 1989, the “world wide web” launched in the public domain, creating what we call today the “internet.” However, the internet was slow to catch on. In 1996, there were only 20 million American users on the internet. As the adoption of the internet by Americans slowly increased so did the development of internet websites and internet services. The United States Congress quickly began to see the pitfalls of the internet unfolding before its own eyes. In effect, the internet created a new venue for the dissemination of defamatory and elicit content.

Beginning in 1991, litigation commenced when individuals sought …


Burning The House To Roast A Pig: Examining Florida’S Controversial Social Media Law, Wes P. Rahn Mar 2022

Burning The House To Roast A Pig: Examining Florida’S Controversial Social Media Law, Wes P. Rahn

Mercer Law Review

The recent proliferation of social media platforms has revolutionized the way individuals convey ideas and communicate with one another. Social media has quickly become the most dominate form of communication, surpassing more traditional modes of communication such as newspapers and television. It is estimated that over two-thirds of American adults now use social networking sites. Moreover, an astonishing 90% of young adults use social media. Social media has not only become an integral part of American culture in terms of entertainment and communication, but has also become a useful tool for politicians and the electorate who wish to engage in …