State and Local Government Law Commons^™

The Problem With The Bureau Of Land Management's Delegation Of Wildlife Management In Wilderness, Lindsay S. Jones

Georgia Law Review

Congress passed the Wilderness Act of 1964 "to secure for
the American people of present and future generations the
benefits of an enduring resource of wilderness." When it
passed the Act, Congress preserved over 9 million acres of
federal lands; and since then, the National Wilderness
Preservation System has been expanded by more than 100
million acres. The Act requires the federal agencies to
manage the wilderness areas to preserve their wilderness
character and to leave the lands unimpaired for future
generations.
Wildlife is an integral part of what makes wilderness
worth preserving. Despite the vital role wildlife plays in …

Taking A Toll On The Equities: Governing The Effect Of The Plra's Exhaustion Requirement On State Statutes Of Limitations, Keri E. Mccrary

Georgia Law Review

If prisoners are required by federal law to exhaust
institutional remedies before they may file suit in federal
court, should a prisoner with a legitimate claim suffer
dismissal by the federal court if the statute of limitations
lapses during the time the prisoner spends exhausting
administrative remedies? The Prisoner Litigation Reform
Act (PLRA) of 1996 offers no guidance. Federal courts
may choose to apply equitable tolling to a prisoner's claim
should this predicament arise, saving it from dismissal
based on tardiness, but nothing requires the court to do so.
The PLRA's enigmatic exhaustion requirement has
engendered much litigation, and the …

Searching For Truth In The American Law Of Evidence And Proof, D. Michael Risinger

Georgia Law Review

The ideology of the trial process puts discovery of truth
at center stage. This is made clear by the language of
Federal Rule of Evidence 102, upon which New Georgia
Rule of Evidence 24-1-1 is obviously based. Both of these
rules make the ascertainment of truth one of the two goals
of the trial (just determination being the other). However,
the term "truth" has been used in many ways in many
different contexts and traditions. What notion of truth did
the drafters have in mind?
This Article answers that question by reference to what
has come to be known as …

Safe Haven No Longer: The Role Of Georgia Courts And Private Probation Companies In Sustaining A De Facto Debtors' Prison System, Sarah D. Bellacicco

Georgia Law Review

Georgia was specifically established as a colony for debtors-a haven where they could be safe from imprisonment. It is a haven no longer. Georgia courts are regularly imprisoning people for failing to pay debts, often through probation revocation of probationers who have failed to pay a fine or fee imposed as a condition of probation. Some of these probationers are on probation solely because they could not pay a fine on the day of sentencing, a practice which greatly increases the amount they owe due to the additional probation fees imposed. In Bearden v. Georgia, the Supreme Court held that …

Federal - State Tax Coordination: What Congress Should Or Should Not Do -- Testimony Of Walter Hellerstein On Tax Reform: What It Means For State And Local Tax And Fiscal Policy, Before The Committee On Finance, Walter Hellerstein

Scholarly Works

Testimony of Walter Hellerstein, Francis Shackelford Professor of Taxation Distinguished Research Professor, before the Committee on Finance, hearing on Tax Reform: What It Means for State and Local Tax and Fiscal Policy, United States Senate, April 25, 2012.

Standing Of Intervenor-Defendants In Public Law Litigation, Matthew I. Hall

Scholarly Works

Unless the plaintiff has a personal stake in the outcome, Article III of the United States Constitution requires federal courts to dismiss a plaintiff’s claim for lack of standing. That much is clearly established by decades of precedent. Less understood, however, is the degree to which Article III also requires defendants to possess a personal stake. The significance of defendant standing often goes unnoticed in case law and scholarship, because the standing of the defendant in most lawsuits is readily apparent:any defendant against whom the plaintiff seeks a remedy has a personal interest in defending against the plaintiff’s claim.

But …

The Chevron Two-Step In Georgia's Administrative Law, David E. Shipley

Georgia Law Review

Like federal and state administrative agencies
throughout the nation, Georgia's many boards,
commissions and authorities make policy when they apply
their governing statutes in promulgating regulations and
in ruling on specific matters like granting or denying an
application for a permit or determining the residency of a
candidate for public office. Sometimes governing statutes
are clear, but sometimes there is ambiguity. When there is
ambiguity in the governing statute, an agency must
interpret that legislation when it promulgates regulations
or decides a particular contested matter. This Article asks
and answers the fundamental question of what deference,
if any, must a …

Location, Location, Location: A "Private" Place And Other Ailments Of Georgia Surveillance Law Curable Through Alignment With The Federal System, Mary B. Martinez

Georgia Law Review

Georgia visual surveillance law prohibits any person
from observing, photographing, or recording any other
person in a private place and out of public view without
the consent of all persons observed. The rigidity of this
all-party consent requirement and the ambiguity of the
private/public place distinction leave investigators and
prosecutors in Georgia guessing as to the admissibility of
visually recorded evidence much of the time. On the other
hand, federal visual surveillance law encompasses a one-
party consent exception and is couched in terms of a
reasonable expectation of privacy under the Fourth

Amendment. Moreover, several federal courts have stated …

State Amici, Collective Action, And The Development Of Federalism Doctrine, Michael E. Solimine

Georgia Law Review

State attorneys general (SAGs) have been individually
and collectively active on many legal and regulatory fronts
in recent years. One of those activities has been the filing
of amicus curiae briefs in the United States Supreme

Court, especially in cases impacting the states and
federalism doctrine. Frequently SAGs will join in one
amicus brief, and briefs signed by forty or more states are
not uncommon. This phenomenon has been the subject of
attention by legal scholars and political scientists, but the
normative jurisprudential significance of such briefs has
not. In their opinions, the Justices vary in how much legal
weight, …

Skimming From The 2%: The Status Of Georgia's Restrictions On Shareholder Access To Corporate Information, Ruari J. O'Sullivan

Georgia Law Review

The Georgia Court of Appeals, in Mannato v. SunTrust
Banks, Inc., held that O.C.G.A. § 14-2-1602 abrogated all
common law rights to inspect corporate records. As a
result, shareholders in Georgia owning less than 2% of a
corporation'soutstandingshares suddenly lost the right to
petition a court to grant access to a corporation's books
and records. This Note argues that the Mannato decision
was incorrect. The Georgia Court of Appeals failed to
notice the significant procedural differences that existed
between the statutory and common law right of inspection
and erroneously applied Georgia's established law of
statutory abrogation. The court also brushed …

Immigration And Civil Rights: State And Local Efforts To Regulate Immigration, Kevin R. Johnson

Georgia Law Review

This Essay explains why U.S. immigration law and
enforcement raises some of the nation's most pressing civil
rights concerns of the twenty-first century. First,
immigration and immigration enforcement implicate a
greater diversity of "people of color," including people of
Latina/o and Asian ancestry, than that encapsulated by
the Black/white paradigm that historically has
dominated thinking about civil rights in the United
States. Second, immigration enforcement implicates civil
rights concerns different in kind than those raised by the
monumental efforts to dismantle Jim Crow and
desegregate American social life, which constituted the
long and hard-fought civil rights achievement of the
twentieth …

Balancing The Scales: Reforming Georgia's Common Law In Evaluating Restrictive Covenants Ancillary To Employment Contracts, Alan F. Pryor

Georgia Law Review

Crafting effective and enforceable restrictive covenants
ancillary to employment contracts has befuddled and
vexed attorneys, courts, and businesses in Georgia for
decades. Tracing its development through more than four
hundred years of judicial decisions, Georgia's common law
has grown increasingly contradictory, confusing, and
convoluted. Until the passage of the Restrictive Covenant
Act, Georgia judges grew increasingly hostile to restrictive
covenants; however, they failed to maintain a coherent set
of guidelines for evaluating such covenants. The
Restrictive Covenant Act marks a turning point in Georgia
employment law, and this Note provides a defense of the
Act.
The Restrictive Covenant Act is …

From Oglethorpe To The Overthrow Of The Confederacy: Habeas Corpus In Georgia, 1733-1865, Donald E. Wilkes Jr.

Georgia Law Review

This Article provides, for the first time, a comprehensive
account of the writ of habeas corpus in Georgia not

primarily focused on use of the writ as a post conviction
remedy. The Article covers the 132-year period stretching
from 1733, when the Georgia colony was established, to
1865, when the American Civil War came to a close. Part
II of this Article, which examines the writ of habeas corpus
in colonial Georgia, begins by briefly summarizing the
history and development of the writ in England, and then
analyzes the reception and availability in the colony of the
common law writ …

Vesting Title In A Murderer: Where Is The Equity In The Georgia Supreme Court's Interpretation Of The Slayer Statute In Levenson?, Mark A. Silver

Georgia Law Review

The recent Georgia Supreme Court ruling in Levenson v.
Word exposes difficult interpretative and equitable
questions posed by Georgia's slayer statute. The case
began after Debra Post inherited her husband's estate but
was then arrested for his murder. She used her husband's
life insuranceproceeds and the real property she acquired
through the murder to pay two law firms to defend her in
the murder trial before pleading guilty.
The court-appointedadministratorof the estate sued the
law firms for conversion for not returning these illegally
and immorally acquired funds. Under the Georgia slayer
statute, a murderer forfeits the right to serve as …

The Political Economy Of Criminal Procedure Litigation, Anthony O'Rourke

Georgia Law Review

Criminal procedure has undergone several well-
documented shifts in its doctrinal foundations since the
Supreme Court first began to apply the Constitution's
criminal procedure protections to the states. This Article
examines the ways in which the political economy of
criminal litigation-specifically, the material conditions
that determine which litigants are able to raise criminal
procedure claims, and which of those litigants' cases are
appealed to the United States Supreme Court-has
influenced these shifts. It offers a theoretical framework
for understanding how the political economy of criminal
litigation shapes constitutional doctrine, according to
which increases in the number of indigent defense
organizations …

Ineffective-Assistance-Of-Counsel Blues: Navigating The Muddy Waters Of Georgia Law After 2010 State Supreme Court Decisions, Ryan C. Tuck

Georgia Law Review

The constitutional right to counsel is a guarantee of
effective counsel, but vindicating this right through an
ineffective assistance of counsel challenge (IC) is difficult
for most defendants, especially indigent ones. In Georgia,
the difficulty of arguing a successful IAC claim is
heightened by strange rules for when such claims can be
raised. Georgia long has adhered to an IAC timing
approach that few other jurisdictions still follow and the
Supreme Court has rejected, threatening waiver if
defendants do not argue IAC as early as practicable.
When appellate counsel is new, this opportunity is the
direct appeal. In contrast, most …

The Georgia Greenway Guidebook: A Tool For Governments, Communities, And Individuals, Christine Clay, Kathleen Nelson, Katie Biszko

Land Use Clinic

The purpose of this guidebook is to provide a tool for local governments, community organizations and individuals that are considering launching or reinvigorating a greenway development project.

Section II of this guidebook explains the concept and use of greenways, as well as many of important steps and considerations for developing greenway projects from inception to completion.

Potential greenway corridors in Georgia are explored in Section III, such as riparian corridors, interstate and highway rights-of-way, railway corridors, fuel pipeline easements, and transmission line easements along high-tension power lines.

Part IV explores aspects of greenway project development, including the need to create …

Rhetorical Federalism: The Value Of State-Based Dissent To Federal Health Reform, Elizabeth Weeks Leonard

Scholarly Works

This Article makes the affirmative case for the widespread trend of state resistance to the recently enacted, comprehensive federal health reform law, the Patient Protection and Affordable Care Act of 2010, or ACA. A significant number of states have engaged in various forms of objection to the new federal laws, including filing lawsuits against the federal government, enacting laws providing that ACA will not apply to residents of the state, and refusing to cooperate with implementing the new laws. This Article identifies reasons why those actions should not be disregarded simply as Tea Party antics or election-year gamesmanship but instead …

State Constitutionalism And The Right To Health Care, Elizabeth Weeks Leonard

Scholarly Works

This Article examines state constitutions and health care rights. Notably, close to a third of states’ constitutions recognize health while the U.S. Constitution contains no reference. Ample scholarly commentary exists on the absence of a right to health care under the U.S. Constitution but little attention has been paid to state constitutional law. This Article begins by explaining the absence of a federal right and the rationale for looking to state constitutional protections for health. The Article then provides a comprehensive survey of state constitutional provisions and judicial decisions enforcing or interpreting them. The survey reveals certain common themes and …

State Of Emergency: Why Georgia's Standard Of Care In Emergency Rooms Is Harmful To Your Health, Jason R. Graves

Georgia Law Review

Patients injured by medical negligence have historically
been able to recover for the injuries they sustained. In
2005, however, the Georgia General Assembly passed
Georgia Senate Bill 3, which gave virtual immunity to
emergency room doctors and those practicing in obstetrics
wards. The Bill requires a showing of gross negligence by
clear and convincing evidence to prevail on a medical
malpractice claim against those protected by the statute.
The law prevents injured patients who cannot meet this
standard from recovering any damages, even
compensation for medical bills arising from the negligent
act. The legislature enacted the Bill in an effort …

Killing, Letting Die, And The Case For Mildly Punishing Bad Samaritanism, Ken Levy

Georgia Law Review

For over a century now, American scholars(among others) have been debating the merits of "bad-Samaritan" laws-laws punishing people for failing to attempt "easy rescues." Unfortunately, the opponents of bad-Samaritan laws have mostly prevailed. In the United States, the "no-duty-to-rescue" rule dominates. Only four states even have bad-Samaritan laws, and these laws impose only the most minimal punishment-either sub-$500 fines or short-term imprisonment. This Article argues that this situation needs to be remedied. Every state should criminalize bad Samaritanism. For, first, criminalization is required by the supreme value that we place on protecting human life, a value that motivates laws against …

State-Created Property And Due Process Of Law: Filling The Void Left By Engquist V. Oregon Department Of Agriculture, Michael L. Wells, Alice E. Snedeker

Georgia Law Review

Several years ago, in Village of Willowbrook v. Olech, the Supreme Court recognized a "class-of-one"equal protection theory, under which individuals charging that they were singled out for arbitrary treatment by officials may sue for vindication. Last term, in Engquist v. Oregon Department of Agriculture, the Court barred recourse to this type of claim on the part of government employees. The reasoning of Engquist, which emphasizes the discretionary nature of employment decisions, threatens to eliminate a wide range of class-of-one claims outside the employment area as well. There is a pressing need for an alternative. This Article proposes another basis on …

The State Of The States : Online Resources For State Legal Research, Sharon Bradley

Presentations

Finding state and local laws can be challenging. Here are some best-bet websites to help find state and local law online.

Mitsubishi Motors Corp. V. Colemon: Broad Reading Of Innovative Clinical Leads To General Personal Jurisdiction Under Georgia's Long-Arm Statute, Benn C. Wilson

Georgia Law Review

In Innovative Clinical & Consulting Services, LLC v. First National Bank of Ames, the Georgia Supreme Court signaled a dramatic change in the interpretation of Georgia's jurisdictional Long-Arm Statute. The decision removed constraints that the Georgia Supreme Court saw as non-textual limitations that had been placed on Georgia courts' ability to exercise personal jurisdiction over nonresidents who transacted business in the state. In Mitsubishi Motors Corp. v. Colemon, the Georgia Court of Appeals took the unprecedented step of authorizing the exercise of general personal jurisdiction over a nonresident defendant when it concluded that jurisdiction over Mitsubishi was proper for claims …

"Rabbit" Hunting In The Supreme Court: The Constitutionality Of State Prohibitions Of Sex Toy Sales Following Lawrence V. Texas, William C. Hayes

Georgia Law Review

Sexual norms in the United States are in flux. The rapid growth of the adult industry and the popularity of television shows that deal with sexuality evidence an ever-growing trend towards more liberal sexual norms. While many Americans accept-or even welcome-this shift in our sexual culture, others feel significant anxieties about the moral well-being of the community as a result of this shift away from traditional,conservative sexual values. As the culture war wages on, some states have chosen to respond to these anxieties through legislation. The U.S. Supreme Court's 2003 decision in Lawrence v. Texas, however, appears to have called …

The Effect (Or Noneffect) Of The 2005 Amendments To O.C.G.A. Sections 51-12-31 And 51-12-33 On Joint Liability In Georgia, Emily R. Boness

Georgia Law Review

Since 1987, joint liability has been unavailable to plaintiffs in Georgia who are to some degree at fault for their injury, but plaintiffs who are not at fault can pursue joint liability as an option for recovering damage awards. When Senate Bill 3 became law in February2005, sources reported widely that joint and several liability had been abolished for all tort cases in Georgia. The text of the 2005 amendments, however, does not explicitly state that joint liability has been abolished. Instead, as this Note demonstrates, the amended statutes are subject to at least two possible interpretations,and furthermore, no Georgia …

Kyoto Comes To Georgia: How International Environmental Initiatives Foster Sustainable Commerce In Small Town America, Peter A. Appel, T. Rick Irvin, Julie M. Mcentire, J. Chris Rabon

Scholarly Works

This Article posits that in response to adoption of Kyoto Protocol targets by governments and multi-national corporations overseas that comprise significant portions of the global economy as well as global financial markets, businesses and state and local governments in the U.S. are also being driven by necessity to undertake sustainable commerce initiatives. Businesses in the EU and other Kyoto-compliant regions that have implemented sustainable commerce programs now require overseas vendors and suppliers-including those in the U.S.-to implement their own sustainable commerce initiatives as a condition of approved supplier status. New EU environmental regulations developed in part to meet Kyoto-specified emissions …

Federalism And Accountability: State Attorneys General, Regulatory Litigation, And The New Federalism, Timothy L. Meyer

Scholarly Works

This Comment will examine how one particular state institution, state attorneys general (SAGs), has operated within a unique set of institutional and political constraints to create state-based regulation with nationwide impact in policy areas including consumer protection, antitrust, environmental regulation, and securities regulation. This state-based regulation casts doubt on one of the principle rationales advanced in the Supreme Court's anticommandeering line of cases for limiting federal power; namely, that such a move enhances electoral accountability, a concept central to our democracy. If in the absence of federal regulation a series of narrowly accountable state-based actors can create nationwide regulation in …

Failure To Connect: The Massachusetts Plan For Individual Health Insurance, Elizabeth Weeks Leonard

Scholarly Works

This Article briefly describes the key features of the Massachusetts Health Care Reform Act, focusing particularly on the Connector. It then offers preliminary thoughts on the expected effect of that mechanism for creating quality, affordable health insurance products for individuals. Observers anticipate that commercial insurers will offer scant coverage and high-premium, high-deductible plans through the Connector, which coverage ultimately may be neither more affordable than products currently or more helpful to covering the cost of health care than no coverage at all. If the Connector fails to facilitate the individual insurance mandate, Massachusetts's promise of universal coverage may begin to …

Where Do We Draw The Line?: The Justiciability Of Political Gerrymandering Claims In Light Of League Of United Latin American Citizens V. Perry, Matthew M. Weiss

Georgia Law Review

Ever since the Supreme Court decided Baker v. Carr in 1962, there has been an evolving debate in the legal community over whether political gerrymandering could ever become so egregious that it would constitute a violation of the Equal Protection Clause. This Note discusses how the Court's recent case, League of United Latin American Citizens v. Perry, sheds new light on whether political gerrymandering is a non-justiciable political question. The Note argues that a majority of the Court now appears to have adopted Justice Kennedy's "wait-and-see" approach from his concurrence in Vieth v. Jubelirer, which accepts that a judicially manageable …