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GEORGIA LAW REVIEW
VOLUME 46 | FALL 2011 | NUMBER 1
ARTICLES
The Judicial Power and the Inferior Federal Courts: Exploring the Constitutional Vesting Thesis
A. Benjamin Spencer 1
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 scrutiny of the history and text of Article III of the U.S. Constitution. The Constitution vests Judicial Power of the United States exclusively in "one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." This Article reviews historical evidence that reveals that delegates to the Federal Convention considered and rejected language that would have given Congress express authority to manipulate the jurisdiction of inferior federal courts. This fact, coupled with repeated indications by the Framers and by the delegates to state ratifying conventions that the independence of the Judicial Branch from each of the other branches was of paramount importance, may give some weight to an understanding of the Judicial Power that challenges-or at least may moderate-our understanding of Congress's authority to withhold from the inferior federal courts some portion of the Judicial Power vested in them under Article III.
Promulgating Proportionality
William W. Berry III 69
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 rationality and predictability the former requirement [of limitations on jury discretion] was designed to achieve . . . ." And the Court has done little to reconcile this conflict. Indeed, recently in Kennedy v. Louisiana, Justice Kennedy stated, "this case law . . . is still in search of a unifying principle."
This Article attempts to provide just that-a unifying principle-through the concept of "proportionality." As herein construed, proportionality requires that the applicable punishment be commensurate with the crime in both a relative and absolute sense. Using this principle, the Article develops a framework by which to apply the Court's Eighth Amendment jurisprudence, incorporating both lines of cases in a way that alleviates the inherent tension of pursing the competing goals of general consistency and case-specific consideration.
This Article, then, argues that the Supreme Court ought to apply the Eighth Amendment in capital cases solely in terms of two distinct types of proportionality-absolute and relative. Specifically, the model requires that the state court (and jury) determine the issue of absolute proportionality first, narrowing the individuals eligible for the death penalty using case-specific mitigating facts. The state courts (typically through appellate review) must then determine the issue of relative proportionality, further narrowing the cases in which the offender is eligible to receive capital punishment.
Part I of the Article describes the "Walton problem"-the apparent tension between the Furman-Gregg arbitrariness principle and the Woodson-Lockett individualized determination principle. In Part II, the Article defines the concept of proportionality, describing both its absolute and relative forms. In Part III, the Article articulates a new model for implementing the Eighth Amendment that solves the Walton problem. Finally, in Part IV, the Article demonstrates how proportionality can serve as the unifying principle for the Court's capital jurisprudence.
When Delegation Begets Domination: Due Process of Administrative Lawmaking
Evan J. Criddle 117
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 to which congressional delegation potentially undermines liberty by instituting domination-the capacity for arbitrary state action. Although the Court continues to invoke the nondelegation doctrine's republican ideals, it has yet to articulate a coherent legal theory to explain how its anemic review of congressional delegations can be squared with the Constitution's liberty-promoting checks and balances.
This Article contends that courts can reconcile administrative lawmaking with the Constitution's republican design, but only if they abandon the nondelegation doctrine's antiquated separation of powers rationale. In its place, courts should focus upon due process as the primary constitutional constraint on congressional delegation. Although the link between delegation and due process has received only sparse attention in legal scholarship, the Supreme Court has employed due process analysis in a variety of cases involving both state and federal delegations. Three general principles inform these cases: to ensure that congressional delegation does not beget domination, agency lawmaking must be (1) constrained by a basic substantive standard, (2) channeled through fair and deliberative administrative procedures, and (3) subject to political accountability and judicial review. This subterranean due process model challenges the conventional wisdom that due process is inapplicable to agency rulemaking. It also has a variety of important-and potentially controversial-implications for other areas of federal administrative law, including the scope of Chevron deference, the Administrative Procedure Act's applicability to presidential lawmaking, and the constitutional status of federal delegations to states, tribes, private entities, and international organizations.
NOTES
Seen But Not Heard: An Argument for Granting Evidentiary Hearings to Weigh the Credibility of Recanted Testimony
Michael McDonnell Hill 213
The case of Troy Davis shows how difficult it is for a convicted criminal defendant to obtain postconviction review of witness recantations. Convicted of murder on the testimony of nine eyewitnesses, Davis spent over a decade petitioning for judicial review of the recantations of seven of those witnesses before the U.S. Supreme Court ordered an evidentiary hearing in 2009. Concurrently, the DNA revolution continued to prove the innocence of an increasing number of convicted inmates across the nation, and the majority of those convictions had relied on eyewitness testimony. If these scientific advances suggest that eyewitness identification is not as reliable as once thought, then the traditional judicial skepticism of eyewitness recantations is an outmoded vehicle that inhibits truth-seeking and disserves criminal justice.
This Note argues that Georgia courts should more readily grant evidentiary hearings for a criminal defendant who files an extraordinary motion for new trial, but only when the motion is based on witness recantations and the defendant's conviction relied primarily on eyewitness testimony. To achieve this end, the General Assembly should amend the Criminal Code so that courts in the future weigh a recanting witness's credibility against the testimony offered at trial. By doing so, Georgia can serve as a model for other states. Otherwise, in the absence of compelling physical evidence against a defendant, ignoring recantations of trial testimony encourages additional appeals, diminishes social confidence in the courts, and ultimately fails to achieve the finality that the criminal justice system seeks.
Market Realities Do Not Embody Necessary Economic Theory: Why Defendants Deserve a Safe Harbor under Section 2 of the Sherman Act for Exclusive Dealing
Danielle Nicole Paschal 249
Exclusive dealing agreements are a form of vertical restraint. They are often procompetitive and treated as presumptively legal. Although claims against anticompetitive agreements may be pursued under numerous antitrust laws, claims have been brought more recently under section 2 of the Sherman Act. Antitrust laws generally focus on the percentage of foreclosure. Section 2 of the Sherman Act, though, requires a smaller percentage of foreclosure of distribution channels than other antitrust laws. Analysis under section 2 of the Sherman Act also focuses on the actual effects of the agreement in the relevant market. Determining the agreement's actual effects on the relevant market requires weighing the procompetitive benefits of the agreement against any possible anticompetitive effects.
This Note examines the historical and current treatment of exclusive dealing agreements and the importance of economic theory underlying exclusive dealing. This Note argues that anticompetitive effects are easier to allege and demonstrate through hard data than potential procompetitive benefits, which often require defendants to rest their arguments on economic theory. Given that courts today have indicated a desire to rest their decisions on market realities rather than economic theory, defendants are at a disadvantage under section 2 of the Sherman Act. This Note proposes that the adoption of a safe harbor for defendants who foreclose less than 30% of the relevant market would remove the disadvantage placed upon defendants.
GEORGIA LAW REVIEW
VOLUME 44 | FALL 2010 | NUMBER 1
ARTICLES
Limiting Article III Standing to "Accidental" Plaintiffs: Lessons from Environmental and Animal Law Cases
Robert J. Pushaw, Jr. 1
According to the Supreme Court, Article III's extension of "judicial Power" 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 arbitrary because "aesthetics" is a matter of personal taste. Judges have exercised similar unbridled discretion in ascertaining causation and redressability. The result has often been a judicial takeover of important policy issues.
Standing decisions are so inconsistent and politicized that most scholars have recommended abandoning the doctrine. However, stare decisis will prevent such a radical change. Therefore, I offer a more realistic approach that retains the existing standing framework but modifies its elements. My touchstone is the historical meaning of an Article III "case," which restricts court access to plaintiffs whose legal rights have been invaded fortuitously because of a chance event beyond their control.
Applying this test, courts would find an "injury in fact" only when it befell a plaintiff by accident, not when someone manufactured a lawsuit by claiming "aesthetic" harm. Insisting on a fortuitous injury would also make it far easier to determine who caused it and whether the remedy requested would redress it.
Defense Against Outrage and the Perils of Parasitic Torts
Geoffrey Christopher Rapp 107
Two prominent narratives in tort law scholarship address the increasing recognition of claims for loss of emotional tranquility and the expanding privilege to use force in defense of self and others. This Article explores a puzzle in tort law that challenges these traditional accounts. Can force be used to defend against intentional extreme or outrageous conduct threatening a person with severe emotional distress? The answer in the case law and articulated doctrine appears to be "no." The law permits the use of force to protect dignitary interests, in the case of offensive battery and assault, but seems to deny the use of force to protect against IIED. No basis for this distinction appears in the leading theoretical accounts of tort law-economics, corrective justice, and civil recourse theory. Rather, the basis of the rules seems to be the childhood maxim, "Sticks and stones . . .," without strong theoretical or policy justification.
Two implications arise. First, the law continues to privilege physical security above emotional well-being. Second, although it is arguably the most successful "new" tort of the twentieth century, IIED remains a tort whose boundaries are murky and whose place in tort doctrine is unclear. The parasitic nature of IIED has complicated the effort to build clear doctrine around all but the most essential elements of the claim.
Congressional End-Run: The Ignored Constraint on Judicial Review
Luke M. Milligan 211
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 decisionmaking. 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 interpretation for 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 forms, including congressional decisions to grant authority to the Executive Branch, to adjust appropriations, to modify certain contingent laws, and to reorient legislation in alternate constitutional clauses. Ignored by political scientists, end-runs undoubtedly constrain the judicial decisionmaking of the strategic Justices assumed by judicial politics scholars.
This Article calls on judicial politics scholars to incorporate the end-run into their formal SOP models and related empirical studies. Such incorporation promises to give political scientists a fuller sense of how their strategic Justices interact with Congress in our constitutional democracy.
NOTES
State of Emergency: Why Georgia's Standard of Care in Emergency Rooms is Harmful to Your Health
Jason R. Graves 275
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 to address physician shortages and rising medical malpractice insurance premiums. In March 2010, the Georgia Supreme Court upheld the statute's constitutionality in Gliemmo v. Cousineau.
This Note explores the enactment of the Bill, the controversy surrounding its passage, and the cause of rising medical malpractice insurance premiums. This Note argues that the supreme court's decision was mistaken and relied on faulty precedent. Accordingly, this Note calls on the Georgia Supreme Court to revisit the constitutionality of the statute, or alternatively, urges the Georgia General Assembly to repeal the law and address malpractice insurance premiums by other means.
Waiving Good-bye to Inconsistency: Factual Basis Challenges to Guilty Pleas in Federal Courts
William T. Stone, Jr. 311
Rule 11(b)(3) of the Federal Rules of Criminal Procedure requires courts to determine that criminal defendants' guilty pleas have a factual basis. Once a district court accepts a guilty plea, appellate courts diverge in their willingness to review challenges to the sufficiency of the plea's factual basis. Some federal circuits hold that a factual basis challenge is waived by the guilty plea. Other jurisdictions will review a defendant's factual basis challenge on appeal. Despite the lack of clarity on this point, the Supreme Court has not yet provided guidance and the federal circuit courts have not offered a great deal of reasoning behind their treatment of the factual basis challenge.
This Note argues that a challenge to the factual basis for a guilty plea should be waived by the plea. This position comports with the substantial policy interest in the efficacy and finality of guilty pleas. Other forms of relief available to defendants who plead guilty make factual basis challenges otiose in this context. This Note then addresses the practical problems attendant to an appellate review of a guilty plea's factual basis. Finally, it draws a meaningful distinction between compliance with the procedural requirements of Rule 11 and the findings of fact made by a district court during the guilty plea hearing.
GEORGIA LAW REVIEW
VOLUME 45 | WINTER 2011 | NUMBER 2
ARTICLES
Rethinking the Commercial Law Treaty
John F. Coyle 343
In international commercial transactions, it is not always clear which state's law will apply to govern a particular contract. Historically, states have sought to address this problem by means of two types of treaties. The first aims to solve the problem by bringing about the substantive unification of commercial law across multiple jurisdictions; once the law is everywhere the same, then it no longer matters which state's law applies to govern the contract. The second aims to solve the problem in part by empowering the transacting parties to choose the law that will govern their contract; once these parties know that their choice of law will be respected by national courts, then the uncertainty as to the governing law goes away.
The conventional wisdom has long been that substantive unification represents the better approach to solving the problem of legal uncertainty. This Article argues that, in fact, a choice-of-law approach may be superior. It does so, first, by identifying weaknesses in two rationales frequently advanced in favor of substantive commercial law treaties-that they are uniquely able to reduce transaction costs and that they offer law uniquely suited to the needs of international commercial transactions. It then explains how a choice-of-law treaty could lead to the development of better commercial law that more accurately captures the preferences of parties engaged in international commerce by facilitating the development of an international market for commercial law.
Economic Loss, Punitive Damages, and the Exxon Valdez Litigation
Dr. Ronen Perry 409
On March 24, 1989, the Exxon Valdez ran aground on Bligh Reef off the Alaskan coast, spilling millions of gallons of crude oil into Prince William Sound. At the time, the spill was probably the worst environmental disaster in American history, and it sparked unusually extensive and complex litigation, as well as a vast academic literature. The Article uncovers a fundamental yet unnoticed inconsistency in American land-based and maritime tort law that surfaced through the Exxon Valdez litigation. On the one hand, liability for purely economic losses was strictly limited under Robins Dry Dock v. Flint, leaving dozens of thousands of victims uncompensated. On the other hand, liability was expanded through an award of punitive damages to relatively few successful claimants. While these two components of the legal saga might not seem incompatible from a simple doctrinal perspective, they are inconsistent on a deeper level. The inconsistency transcends the Exxon Valdez litigation: It is a troubling trait of land-based and maritime tort law, which happened to surface when the Exxon oil submerged. After delineating the contours of the incongruity, the Article proposes a conceptual framework for resolution. Generally, it holds that if courts believe liability must be expanded beyond the limits set by the exclusionary rule in order to obtain certain levels of deterrence and retribution, relaxing the exclusionary rule and allowing more victims to recover is a more defensible path than awarding punitive damages to the already compensated few.
Enthusiastic Enforcement, Informal Legislation: The Unruly Expansion of the Foreign Corrupt Practices Act
Amy Deen Westbrook 489
The Foreign Corrupt Practices Act (FCPA) was enacted over thirty years ago to prohibit bribery of foreign officials by U.S. persons. In the last few years, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have dramatically expanded the FCPA through a surge in its enforcement. Responding to complex developments in law, the global economy, and agency politics, the DOJ and the SEC have brought ten times as many cases as in prior years, and assessed hundreds of millions of dollars in penalties. At the same time, the substantive reach of the law has been extended through the increased enforcement. Thus, ad hoc enforcement actions, rather than legislation, regulation, or judicial decision, have transformed the FCPA. In the absence of formal process or reasoned articulation, the scope of the law is currently unclear. Businesses have little official guidance in designing effective compliance programs and may be more likely to violate the FCPA. Unruly enforcement, and the resulting lack of clarity about what the FCPA requires, may compromise the law's efficacy. Therefore the DOJ and the SEC should encourage compliance by providing clear, general guidance about the scope of the FCPA. The Article concludes with specific questions about the FCPA that such guidance should resolve.
NOTES
ERISA Subrogation and the Controversy over Sereboff: Silencing the Critics, the Divided Bench Is a Legitimate Standard
Ashley Aunita Prebula Frazier 579
ERISA protects employees in the administration of employer-sponsored benefit plans. When a party is injured by third parties and a health and welfare benefit plan governed by ERISA pays benefits, conflicts have arisen between insurers seeking subrogation and individuals seeking full recovery. Injured parties claim they should not have to reimburse insurers while insurers deny responsibility for damage caused by third parties. The Supreme Court set the standard for plan fiduciary rights to ERISA subrogation in Sereboff v. Mid Atlantic Medical Services, Inc. Sereboff held that the plain wording of 29 U.S.C. § 1132(a)(3) means equitable relief available under the historically divided courts of law and equity. The Court reasoned that the statute specifies only "equitable relief" rather than specific categories of equitable relief, such as constructive trusts and equitable liens. Controversy continues as scholars criticize the standard as unsupported by ERISA and contrary to ERISA's purposes. This Note asserts that the standard is supported by statute and precedent: Mertens v. Hewitt Associates and Great-West Life & Annuity Insurance Co. v. Knudson. This Note concludes that the Court established a workable standard, the ultimate legitimacy of which lies in the equitable balance it achieves between fiduciary rights to enforce ERISA plan subrogation provisions and the protection of beneficiaries. The critics should accept the Court's equitable solution: equitable relief under the divided bench.
The Panic Defense and Model Rules Common Sense: A Practical Solution for a Twenty-first Century Ethical Dilemma
Teresa Marie Garmon 621
The attorney-client relationship remains one of the most highly regarded associations in society and is of indispensable importance for criminal defendants, but it is not a relationship that lasts forever. The Model Rules of Professional Conduct (Model Rules) not only allow breaking this affiliation, but also sometimes demand it. Yet, in other circumstances, the Model Rules and judicial custom may force an attorney to proceed with a representation-even in the face of fundamental disagreement with the core defense in a criminal case. Through the avenue of the gay panic defense, this Note explores how attorneys can become trapped between their own moral beliefs and professional responsibilities, thus exposing a larger conflict in professional ethics. How should an attorney proceed when a case demands a defensive strategy that the attorney finds reprehensible? Should counsel set aside personal views, arguing the best defense for a client no matter how deep his disagreement? This Note demonstrates that the best interest of a client may, at times, be best served by allowing the attorney to withdraw. Therefore, this Note proposes amending the Model Rules to explicitly allow attorneys to withdraw in the most extreme moral conflicts-an abort button to be used sparingly, but swiftly, so that a client's interests can be best served, even if by another lawyer.
GEORGIA LAW REVIEW
VOLUME 45 | SPRING 2011 | NUMBER 3
ARTICLES
Noah's Curse: How Religion Often Conflates Status, Belief, and Conduct to Resist Antidiscrimination Norms
William N. Eskridge Jr. 657
Today, many devout Christian fundamentalists support some state discrimination against gay people, on the ground that full equality for gays would mean fewer liberties for themselves. In its recent controversy with a public law school, the Christian Legal Society argued that it was entitled to state subsidies even though it violated the school's antidiscrimination policy. The Society said it excluded only "unrepentant homosexuals"-those gay persons whose "immoral" conduct and degraded status were directly linked to what the Society considered an anti-Christian message.
Professor Eskridge demonstrates that the same clash between equality for minorities and liberty for Christian fundamentalists played out in the context of race. Most of today's antigay denominations were generations earlier antiblack as a matter of faith. When people of color sought the end of slavery and, later, apartheid, they were met by arguments that more equal treatment for people of African descent would violate the liberties enjoyed by Christians of European descent.
Moreover, religion, society, and the state are mutually constitutive-each influences the others. Thus, advances in racial equality were accompanied and at the same time abetted by the abandonment of racist religious doctrines. Professor Eskridge argues that pro-tolerance religious persons and groups are critical players in the progress of society toward more equal treatment of sexual minorities in the future as well as racial minorities in the past.
The Political Economy of Criminal Procedure Litigation
Anthony O'Rourke 721
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 expand the Supreme Court's freedom to select cases that frame constitutional issues in ways that conform to the ideological preferences of the Court's Justices.
This framework exposes a potential, but heretofore unidentified, link between the Warren Court's decision in Gideon v. Wainwright and the relative conservatism of contemporary criminal procedure doctrine. Specifically, by mandating the creation of a vast number of state-subsidized organizations representing poor defendants, the Court's decision in Gideon weakened the power that such organizations once had to constrain the Supreme Court's criminal procedure agenda. This Article thus complicates the traditional narrative of constitutional criminal procedure's doctrinal shifts-a narrative in which the liberal innovations of the Warren Court were simply eclipsed by the decisions of later and more conservative Courts-by attending to the economic and institutional conditions that underpin those shifts.
Complex Financial Institutions and Systemic Risk
Manuel A. Utset 779
Modern financial institutions are large, complex, and highly interconnected. In the wake of the financial crisis of 2007-2009, commentators and policymakers have given considerable attention to large institutions, particularly those that can become "too-big-to-fail." This Article takes a novel approach to this general problem. It begins by asking a foundational question: given the extraordinary volume of transactions between large, complex institutions, what mechanisms do they use to protect themselves from the risks created by their complexity, and how do those mechanisms affect the stability of the financial system? To keep the problem manageable, the Article focuses on one type of transaction, albeit a critical one: collateralized loans.
The Article shows that in the period leading to the recent crisis, financial institutions dealt with complexity by transacting "blindly"-without acquiring any real information about the other party to the transaction. While this may appear counterintuitive, the Article develops a theory of "blind-debt" contracting that explains why willful ignorance makes sense, at least from an economic perspective. The Article also shows that while blind debt minimizes a lender's transactional risks, as the number of transactions increase, so does the risk the system will experience a "sudden switch" from a blind-debt equilibrium to one in which lenders value transparency. A number of features of the recent crisis provide support for the theory developed in the Article.
NOTES
Grossly Disproportional to Whose Offense? Why the (Mis)Application of Constitutional Jurisprudence on Proceeds Forfeiture Matters
Amanda Seals Bersinger 841
To pass constitutional muster, fines-of which punitive forfeitures are one type-must not be grossly disproportional to the gravity of the offense from which they arise. Currently, the United States Courts of Appeals exhibit a split in their treatment of forfeiture of proceeds acquired incident to a criminal enterprise. A majority of courts to address the issue have held that proceeds forfeitures are not punitive fines and thus escape constitutional scrutiny. Other courts, including the Fourth Circuit in the recent case United States v. Jalaram, Inc., have concluded that proceeds forfeiture, like that of instrumentalities of a crime, is punitive and therefore subject to constitutional analysis.
This Note argues that the conclusion that proceeds forfeiture is proportional has compelled, in some courts, a misstated conclusion that it is also nonpunitive and therefore beyond the reaches of the Eighth Amendment's Excessive Fines Clause. Courts finding proceeds forfeitures necessarily nonpunitive because they are proportional conflate two conceptually separate constitutional requirements: that punitive forfeitures be subject to the Excessive Fines Clause and that, in accordance with that Clause, forfeitures not be grossly disproportional to the offense.
In most cases, this imprecise application of Eighth Amendment jurisprudence will be inconsequential. However, this Note illustrates the necessity of the two-prong approach in cases of joint and several liability, where the misapplication could have grave consequences.
Vesting Title in a Murderer: Where Is the Equity in the Georgia Supreme Court's Interpretation of the Slayer Statute in Levenson?
Mark Adam Silver 877
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 insurance proceeds 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-appointed administrator of 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 administrator of an estate and any rights to recover by will or intestacy. However, interpreting the statute, the Georgia Supreme Court held that title vests out of the murderer only upon finalization of judicial condemnation proceedings. Thus, a murderer can legally transfer inherited property until the second before conviction, notwithstanding the possible bad faith of the third party receiving the property.
This Note argues that to uphold common law values and equitable principles, courts in future cases should employ the constructive trust remedy. Thus, if a bad faith purchaser receives the decedent's property, this third party would be required to return it to the party retaining equitable title-here the deceased's estate. This remedy avoids inequitable rulings that are sure to result from Levenson.
Foreign States Are Foreign States: Why Foreign State-Owned Corporations Are Not Persons Under the Due Process Clause
Frederick Watson Vaughan 913
If foreign states are not "persons" under the Due Process Clause, do foreign state-owned corporations still enjoy the same protections as their privately owned counterparts? This is an important question because state-owned entities are a prevalent fixture in an increasingly global economy. Courts confronted with the issue, however, have attempted to resolve it by resorting to a policy-based analysis. In doing so, they have distorted fundamental constitutional principles.
This Note explains this distortion by discussing the trend among leading courts of not recognizing states as "persons" under the Due Process Clause and by examining the meaning of "foreign state" under the Constitution and the history of the foreign sovereign immunity doctrine. Scholars who have addressed the issue take the position that if a state-owned corporation behaves as an independent juridical entity it should be treated as its private counterpart for due process purposes. This Note explains that, although such a position makes sense for policy purposes, all state-owned corporations are indistinguishable from their state owner for constitutional purposes. As a result, if foreign states are not "persons," neither are the entities they own, regardless of how they behave. The remedy, therefore, lies not through the Judiciary but through legislative amendment of the Foreign Sovereign Immunities Act.
GEORGIA LAW REVIEW
VOLUME 46 | FALL 2011 | NUMBER 1
ARTICLES
A Taxonomy of Virtual Work
Miriam A. Cherry 951
Millions of people worldwide entertain themselves or supplement their incomes-or both-by meeting with fellow employees as avatars in virtual worlds such as Second Life, solving complicated problems on websites like Innocentive, or casually "clicking" to make money for simple tasks on Amazon.com's Mechanical Turk. Virtual work has great promise-increasing efficiency by reducing the time and expense involved in gathering workers who live great distances apart, and allowing for efficient use of skills so that the whole is truly greater than the sum of its parts. At the same time, virtual work presents its own unique series of challenges, and regulation is needed to ensure that the end result is not virtual sweatshops. Some of the questions that virtual work raises are: How might the minimum wage laws apply to new forms of work, such as crowdsourcing, where work is broken down to small components? How could virtual worlds help us to test the amount of unconscious bias that exists in hiring? How will unions use virtual worlds, and as happened in the 2007 IBM Italy "virtual strike," are more virtual industrial actions yet to come? Other issues discussed in the Article include virtual work approaches to whistleblowing, harassment, and disability law. While still nascent, these legal issues are of concern to employees and employers alike, and in light of that fact, it is appropriate to begin formulating well-thought out approaches to address them.
From Oglethorpe to the Overthrow of the Confederacy: Habeas Corpus in Georgia, 1733-1865
Donald E. Wilkes, Jr. 1015
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 postconviction 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 of habeas corpus and the English Habeas Corpus Act of 1679. Part III explores habeas corpus in Georgia during the Antebellum era, and demonstrates that both common law habeas corpus and the 1679 English habeas statute continued to be part of Georgia law throughout this period. Part IV focuses on habeas corpus in Georgia during the Civil War, and explores four major habeas corpus developments in wartime Georgia. The first was the taking effect of the habeas corpus provisions contained within the Georgia Code of 1861, and the consequent abolition of the state's common law writ of habeas corpus and repeal of the 1679 English statute. The second development was the enactment of an 1863 habeas corpus statute designed to assure that when properly applied for the writ would not be denied. The third was Georgia's fiery resistance to Confederate suspension of habeas corpus. The fourth development was the willingness of the Georgia Supreme Court, in case after case, to permit persons serving in or conscripted by the Confederate Army or the Georgia state militia to seek and where appropriate obtain state habeas relief from military service. Part V brings the Article to a close by summarizing the sound reasons supporting the view that during the period extending from the founding of the colony until the end of the War Between the States the writ of habeas corpus was the glory of Georgia law.
ESSAY
What McDonald Means for Unenumerated Rights
A. Christopher Bryant 1073
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 questions about interpretative method and the Court's fidelity to the written Constitution.
NOTES
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 Lee Case 1095
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 readership, the rise of Internet communication, and the historical mobility of our society. Based on the continuous decline in newspaper use and the unstoppable expansion of the Internet, this Note concludes that newspapers are not a method of communication that anyone desiring to notify another party would reasonably use. Therefore, notice by newspaper publication no longer meets the constitutional standard for due process.
This Note concludes by proposing a method of notification that embraces the new ways in which society communicates and emboldens proactive citizens to harness the power of electronic applications and services to monitor challenges to their property rights. Given the efficacy of modern-day technology in reaching people, this Note encourages the Court to modify the Federal Rules and leverage modern advancements to better protect each citizen's constitutional right to notification and an opportunity to be heard.
Imprisoned by Liability: Why Bivens Suits Should Not Be Available Against Employees of Privately Run Federal Prisons
Isabella Ruth Edmundson 1127
With the increasing privatization of prisons, a growing issue is whether individual employees in private federal prisons are liable through a Bivens suit for violating the constitutional rights of inmates. Four circuits have confronted the issue. Three circuits have held that no Bivens action is available; but recently the Ninth Circuit has held the contrary.
The Supreme Court's Bivens case law offers mixed messages as to whether an implied cause of action should be available in this situation. One view is that, despite an initial willingness to expand Bivens, the Supreme Court has consistently moved away from recognizing new Bivens suits. An expanding class of alternative remedies that are considered adequate to foreclose a Bivens action could explain part of this shift. Another interpretation is that recent Supreme Court cases have reaffirmed that the Supreme Court's current approach to Bivens is substantially the same as it was right after Bivens was decided.
This Note will argue that based on recent Supreme Court jurisprudence private prison employees should not be subject to Bivens liability. Important policy considerations underlying Bivens actions further suggest a finding of no liability. Also, because a state law negligence suit should be viewed as an adequate alternative, the creation of an implied cause of action in this context is unnecessary.
Amy and Vicky's Cause: Perils of the Federa lRestitution Framework for Child Pornography Victims
Robert William Jacques 1167
Child pornography is unique among violent crimes in at least one aspect: victims are harmed not only from their initial abuse but also from knowing that people on the Internet continue to view the images. In recent years, a split has arisen among federal courts on whether victims of child pornography are entitled to restitution from non-production offenders, i.e., offenders that were not involved in the initial abuse of victims. The controversy has surrounded 18 U.S.C. § 2259-the mandatory restitution statute for sex offenses. While some courts find victim harm not sufficiently traceable to the crimes at issue to grant restitution, other courts emphasize Congress's intent to compensate victims in ordering restitution. The problem with restitution in the child pornography context, however, is deeper than just interpreting § 2259 for non-production offenses. This Note suggests that a mandatory fine for non-production offenders would alleviate not only the causality problem but also other issues plaguing the restitution framework.
Ineffective-Assistance-of-Counsel Blues: Navigating the Muddy Waters of Georgia Law After 2010 State Supreme Court Decisions
Ryan C. Tuck 1199
The constitutional right to counsel is a guarantee of effective counsel, but vindicating this right through an ineffective assistance of counsel challenge (IAC) 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 courts prefer that IAC claims be raised at collateral review.
In 2008, the Georgia Supreme Court made the state's rules even more unique, suggesting that indigent defendants were entitled to new appellate counsel without any threshold showing of merit, which (though unspoken by the court) would jump-start the ticking clock toward waiver. Many lambasted this rule as deepening perceived problems with Georgia's IAC timing rules in an indigent defense system already struggling for resources. A pair of 2010 cases, however, suggests that the state court may be tempering both this no-threshold rule and Georgia's approach to IAC timing, more broadly.
This Note evaluates those cases and their implications for Georgia's rules, as well as the larger debate about the ideal approach to IAC timing.
Page last updated on 7 February 2012.
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