Supreme Court of the United States Commons^™

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 …

A Judicial Solution To The Forum-Selection Clause Enforcement Circuit Split: Giving Erie A Second Chanc, Kelly A. Blair

Georgia Law Review

In The Bremen v. Zapata Off-Shore Co., the Supreme
Court established the federal standard of enforcing forum-
selections clauses as presumptively reasonable. The Court,
however, first addressed the enforceability of forum-
selection clauses in a diversity case in Stewart
Organization, Inc. v. Ricoh Corp., in which the Court held
that under Erie, federal law, specifically 28 U.S.C.
§ 1404(a), governs the enforceability of forum-selection
clauses. After Stewart, a split within the United States
Courts of Appeals developed when litigants used Rule 12
motions to dismiss-a procedural vehicle unaddressed by
the Stewart Court-to enforce these clauses. The circuit
split has two …

Playing Well With Others-But Still Winning: Chief Justice Roberts, Precedent, And The Possibilities Of A Multi-Member Court, William D. Araiza

Georgia Law Review

This Essay considers methods by which a Supreme
Court Justice inclined to weaken precedent may do so
without explicitly overruling cases. Adding to the
literature examining "stealth overruling" and the

dynamics of multi-judge courts, it examines instances
from the first five years of the Roberts Court where Chief
Justice Roberts acted in a way consistent with that of a
judge who strategically situates himself among his
colleagues so as to erode precedent while appearing to
uphold it. The Essay does not speculate that the Roberts
Court, or Chief Justice Roberts himself, is any more
inclined than past Courts or Justices …

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, …

American Electricpower V. Connecticut: Disaster Averted By Displacing The Federal Common Law Of Nuisance, Damian M. Brychey

Georgia Law Review

Historically, the federal common law of nuisance has
provided a means to regulate interstate pollution. With
the passing of legislative acts such as the Clean Water Act
and the Clean Air Act, however, traditional federal
nuisance lawsuits were displaced. The continued viability
of the federal common law of nuisance to regulate
pollution, specifically greenhouse gases, was brought to
the forefront of American jurisprudence in American
Electric Power Co. v. Connecticut. There, the Supreme
Court held that the Clean Air Act and the EPA actions the
Act authorizes displace any federal common law right to
seek abatement of greenhouse gases-reversing the …

The First Amendment, Public School Students, And The Need For Clear Limits On School Officials' Authority Over Off-Campus Student Speech, Rory A. Weeks

Georgia Law Review

When, if ever, can school officials punish a student's off-
campus speech? The Supreme Court's student-speech
jurisprudence does not provide a clear answer. But this
much is clear: School officials do not possess absolute
authority over students' on-campus speech. Public school
students do not shed their First Amendment rights at the
schoolhouse gate. And yet during school or school-related
activities, public school students do not have coequal First
Amendment rights with adults in other contexts. During
school or school-related activities, school officials may
proscribe otherwise-permitted speech in order to fulfill the
school's basic educational mission, which includes
instructingstudents in civility. …

The Judicial Power And The Inferior Federal Courts: Exploring The Constitutional Vesting Thesis, A. Benjamin Spencer

Georgia Law Review

The Third Branch of our federal government has
traditionally been viewed as the least of the three in
terms of the scope of its power and authority. This
view finds validation when one considers the
extensive authority that Congress has been permitted
to exercise over the Federal Judiciary. From the
beginning, Congress has understood itself to possess
the authority to limit the jurisdiction of inferior
federal courts. The Supreme Court has acquiesced to
this understanding of congressional authority
without much thought or explanation.
It may be possible, however, to imagine a more
robust vision of the Judicial Power through closer …

Extra! Read All About It: Why Notice By Newspaper Publication Fails To Meet Mullane's Desire-To-Inform Standard And How Modern Technology Provides A Viable Alternative, Jennifer L. Case

Georgia Law Review

Decades ago the Supreme Court articulated that due
process requires adopting a means of service that one
would naturally adopt if he actually desired to inform
another. For generations newspaper publication has been
allowed where the party to be notified is not known or
cannot be located. But, given the rapid transformation

of information dissemination over our country's recent
history, are newspapers a method that anyone would use if
they truly wanted to relay information to another person?
This Note examines the shift in how American's receive
news and information in our modern society. It explores
the decline in newspaper …

Promulgating Proportionality, William W. Berry Iii

Georgia Law Review

Two lines of cases have dominated the Supreme Court's
Eighth Amendment death penalty jurisprudence: the
Furman-Gregg line of cases emphasizes the need to adopt
rules to eliminate the arbitrariness inherent in unguided
capital sentencing by juries, while the Woodson-Lockett
line of cases emphasizes the opposite concern-the need for
juries to make individualized sentencing determinations-
highlighting the inadequacy of rules.
At first glance, these competing aims create some
internal tension, if not outright conflict. In his
concurrence in Walton v. Arizona, Justice Scalia argued
that this conflict was - irreconcilable: "[t]he latter
requirement [of individualized factual determinations]
quite obviously destroys whatever …

When Delegation Begets Domination: Due Process Of Administrative Lawmaking, Evan J. Criddle

Georgia Law Review

In federal administrative law, the nondelegation
doctrine purports to forbid Congress from entrusting its
essential legislative powers to administrative agencies.
The Supreme Court developed this doctrine during the
nineteenth century to safeguard republican values
embedded in the Constitution. Over time, however, the
Court has loosened the doctrine's grip, permitting federal
agencies to wield broad lawmaking powers subject to
minimalist "intelligible principles" established by
Congress. The Court has defended this approach on
pragmatic grounds, arguing that Congress cannot perform
its essential legislative function without entrusting
lawmaking authority to administrative agencies. What
the Court has never adequately addressed, however, is the
extent …

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 …

What Mcdonald Means For Unenumerated Rights, A. Christopher Bryant

Georgia Law Review

In June a splintered Supreme Court held in McDonald
v. City of Chicago that the Second Amendment applied to
state and local governments. But the case was about

much more than handguns. It presented the Court with
an unprecedented opportunity to correct its own erroneous
precedent and revive the Fourteenth Amendment's
Privileges or Immunities Clause. The plurality declined
the offer not, as Justice Alito's opinion suggested, out of a
profound respect for stare decisis, but rather because at
least four Justices like the consequences of that ancient
error, especially insofar as unenumerated rights are
concerned. This observation in turn raises …

Limiting Article Iii Standing To "Accidental" Plaintiffs: Lessons From Environmental And Animal Law Cases, Robert J. Pushaw Jr.

Georgia Law Review

According to the Supreme Court, Article III's extension
of "judicialPower" to "Cases" and "Controversies"limits
standing to plaintiffs who can demonstrate an
individualized "injury in fact" that was caused by the
defendant and that is judicially redressable. Article III's
text and history, however, do not mention "injury,"
"causation,"or "redressability."
Furthermore, these standards are malleable and have
been applied to achieve ideological goals, especially in
cases involving environmental and animal-welfare laws.
Most notably, the Court has recognized an "injury in fact"
to one's aesthetic enjoyment of nature, but determining
such an injury is arbitrarybecause "aesthetics"is a matter
of personal taste. Judges have …

Congressional End-Run: The Ignored Constraint On Judicial Review, Luke M. Milligan

Georgia Law Review

This Article identifies an untended connection between
the research of legal academics and political scientists. It
explains how recent developments in constitutional theory,
when read in good light, expose a gap in the judicial
politics literature on Supreme Court decision making. The
gap is the "congressional end-run."
End-runs occur when Congress mitigates the policy cost
of adverse judicial review through neither formal limits on
the Court's autonomy nor substitution of its constitutional

interpretationfor that of the Court, but through a different
decision which cannot, as a practical if not legal matter,
be invalidated by the Court. End-runs come in several …

"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 …

Alive But Not Well: Manifest Disregard After Hall Street, Kevin P. Murphy

Georgia Law Review

Arbitration is supposed to make dispute resolution faster and more cost-effective for litigants. To this end, Congress severely limited the ways in which a court can review an arbitrator's decision. But for the last fifty years courts have allowed parties an additional non statutory avenue for challenging arbitration awards. Where an arbitrator makes a decision in manifest disregard of the law, a court may vacate the award. To prove manifest disregard,parties must prove the arbitrator was aware of the law that should govern the dispute, but deliberately chose to ignore it. This often-argued, but seldom successful, claim increases the costs …

The "Scope Of A Student": How To Analyze Student Speech In The Age Of The Internet, Erin Reeves

Georgia Law Review

In three seminal cases dating from 1969-1988, the U.S. Supreme Court determined that students have a more limited right to free speech while within the confines of a public school building. In recent years, however, more and more cases have arisenin which it is not so clear whether a student speaker is "on-campus,"due in large part to the rapid increase in speech communicated over the Internet. This Note explores the possibility of how far the "confines of a public school building" should be extended in this age of the Internet. After analyzing the current confusion regarding what amount of restriction …

Second Class Delivery: The Elimination Of Birthright Citizenship As A Repeal Of "The Pursuit Of Happiness", Sara C. Barnhart

Georgia Law Review

In recent years, immigration has been at the forefront of political debate in the United States. In response to concerns over undocumented immigrants, some members of Congress have proposed the elimination of birthright citizenship. Eliminating birthright citizenship means that citizenship at birth would be based on the citizenship of one's parents rather than one's birth in U.S. territory. This Note demonstrates the historical nature of this U.S. immigration controversy by tracing similar movements throughout history. It documents the roots of the common law doctrine of birthright citizenship, followed by a discussion of the protection of citizenship status the Fourteenth Amendment's …

A New Era Of Federal Sentencing: The Guidelines Provide District Court Judges A Cloak, But Is Gall Their Dagger?, Anna E. Papa

Georgia Law Review

Federal district court judges today have a level of sentencing discretion that has been unknown since the adoption of the United States Sentencing Guidelines. This Note reviews the history of the Guidelines and outlines the problems that have resulted from the Supreme Court's decisions in Booker, Rita, and Gall This Note argues that the confusion may be clarified by giving effect to the text of 18 U.S.C. §3553(a), which requires that federal district court judges impose sentences that are sufficient, but not greater than necessary, and requires them to examine all the factors provided in the statute. The court's recent …

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 …

The Future Of Footnote Four, Dan T. Coenen

Georgia Law Review

The Supreme Court's decision in United States v. Carolene Products Co. generated the most famous footnote-and perhaps the most famous passage-in all of the American Judiciary's treatment of constitutional law. Among other things, Footnote Four suggested that "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry."' The importance of this principle cannot be overstated. It pervaded the work of the Warren Court2 and has played a prominent role …

Is Capital Punishment Unconstitutional? And Even If We Think It Is, Should We Want The Supreme Court To So Rule?, Michael J. Perry

Georgia Law Review

Given that the Supreme Court of the United States, in protecting constitutionally entrenched human rights, exercises the power of judicial ultimacy, should the Court exercise the power deferentially? That is, should the Court defer to some degree to the judgment of the members of the legislative and/or executive branches of government whose law or policy is in question and who presumably have concluded that the law or policy does not violate any human right?

The choice here is best understood as a choice between two different judicial attitudes or orientations. For a judge to adopt a deferential attitude-for her to …

Snoop Dogs: An Analysis Of Narcotics Canine Sniffs Of Storage Units Under The Fourth Amendment, Eugene D. Bryant

Georgia Law Review

A recent development in the nation's war on drugs is the increased use of narcotics canines to indiscriminately search storage facilities. Although the Fourth Amendment protects persons from unreasonable searches and seizures, the Supreme Court of the United States in U.S. v. Place deemed a canine sniff to be sui generis and not a "search"subject to analysis under the Fourth Amendment. With its decision in Illinois v. Caballes, the Court extended this analysis to canine sniffs outside of vehicles. Various state courts, in order to better protect the rights of state citizens, have rejected the Supreme Court's sui generis analysis …

The Future Of The Lemon Test: A Sweeter Alternative For Establishment Clause Analysis, Marcia S. Alembik

Georgia Law Review

For over three decades the Supreme Court has applied the three-pronged Lemon test to determine whether state actions violate the Establishment Clause. While the Lemon test remains the most widely accepted test for Establishment Clause analysis,the recent Supreme Court decisions of Van Orden v. Perry and McCreary County v. ACLU of Kentucky have highlighted the Court's ongoing unrest with its application. Although attempts at total replacement of the test have thus far proved unsuccessful, modifications and alternatives to the test and its individual prongs are continually introduced and applied. The Court's lack of a consistent, definite test for Establishment Clause …

Section 1983, The First Amendment, And Public Employee Speech: Shaping The Right To Fit The Remedy (And Vice Versa), Michael L. Wells

Georgia Law Review

Constitutional rights have little value in the absence of effective remedies for their violation, includingsuitsfor damages to redress past constitutional wrongs and for injunctive relief to prevent continuing and future violations. Recognizing this, the Supreme Court has, especially over the past forty years, constructed an elaborate body of remedial doctrine. The Court has often acted on the premise that the remedial law should be more or less the same across the whole range of constitutional rights. The problem with this approach is that, from a remedial perspective, there are differences among the real world contexts in which constitutional violations occur. …

Turning Section 1983'S Protection Of Civil Rights Into An Attractive Nuisance: Extra-Textual Barriers To Municipal Liability Under Monell, Brian J. Serr

Georgia Law Review

This essay addresses the problem of "Making Government Pay" from a different perspective than Professor Levinson's article.1 Instead of focusing on social and economic barriers to deterrence and corrective justice, this essay will focus on the arbitrary legal barriers that the Supreme Court has placed between a constitutionally injured citizen and the municipal treasury. These legal barriers are more fairly attributable to the Supreme Court than to Congress because the barriers to establishing municipal liability under the Court's § 1983 jurisprudence are hardly self-evident from the statutory text of § 1983, nor are those barriers readily inferrable from that text. …

Afterword, Marshall S. Shapo

Georgia Law Review

It is a great pleasure to comment on these papers on a subject that has fascinated me since the beginning of my teaching career. My observations will no doubt reflect the roots of my thinking in an article I wrote on the subject in 1965' and other early publications, and, doubtless, my relative ignorance of the immense amount of case law that has flowed from courts since the mid-sixties. However, informed by a little independent study and refreshed by the commentaries, I venture a few somewhat angular thoughts. They do not" in any way pretend to be exhaustive with respect …

Corrective Justice And Constitutional Torts, Bernard P. Dauenhauer, Michael L. Wells

Georgia Law Review

Tort liability in the private realm may be understood both as "an instrument aimed... at deterrence... [and] a way of achieving corrective justice between the parties."' Following the common law model, the Supreme Court has borrowed this normative framework for constitutional torts, ruling that the aims of liability for damages are to vindicate constitutional rights and to deter constitutional violations. A recent article by Daryl Levinson takes issue vith this approach. Levinson argues that the superficial similarities between public torts and private torts conceal real differences, to which neither the Court nor scholars have paid adequate attention. The main point …

The Origins And Application Of The Military Deference Doctrine, John F. O'Connor

Georgia Law Review

Although the military deference doctrine is often thought to have originated in Supreme Court decisions in the nineteenth century, the doctrine actually is of fairly recent vintage, being traceable to four decisions issued by the Burger Court between 1974 and 1976. The military deference doctrine is (and should be) limited to constitutional issues where courts weigh the extent of the government's interest in determining the constitutionality of the practice at issue. In addition,although the doctrine is oft- criticized by legal scholars,it remains a viable and robust part of the Supreme Court's constitutional jurisprudence

''Here Comes Da Judge", Ernest Van Den Haag

Georgia Law Review

Had it not been written by an Associate Justice of the Supreme Court, this book would not be reviewed: obviously calculated to pander to prurient political interest, it seems utterly without redeeming social value, although it does not violate current community standards, such as they are. However, the author's status makes the book news, just as a bishop's coming out for burlesque would be news: being a bishop is not, nor is favoring burlesque, but being a bishop favoring burlesque is. Points of Rebellion might be described as an apt, if unintended, caricature of the sentiments and ideas found in …