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Tomorrow Is a Mystery: Implementing Georgia’s Psychiatric Advance Directive Act
Full text linkMental health conditions exist in many adults today. One tool available to help them prepare for potential mental health crises is the psychiatric advance directive (PAD). Similar to medical advance directives, PADs allow individuals to create a plan in advance with specific directions regarding their mental health treatment to prepare for times of incompetence. Most states allow adults to create advance directives for general medical treatment, but creating advance directives for psychiatric treatment is a recent development.
This Note analyzes the implementation of Georgia’s Psychiatric Advance Directive Act (PAD Act), adopted in 2022. First, this Note provides an explanation and comparison of medical advance directives and psychiatric advance directives. Next, through a comparative analysis of legal challenges encountered in states that have already implemented PAD statutes, this Note anticipates how similar issues might emerge under Georgia’s PAD Act. This analysis explores hurdles related to the execution, enforceability, and judicial interpretation of PADs, using cases from other states to inform how Georgia courts might navigate these questions. Finally, this Note offers recommendations for clarifying the statutory language of Georgia’s PAD Act so that the Act will provide help to those who experience mental health conditions
Unfair Competition: Big Data and the Fight Over Data Privacy
Full text linkSection 5 of the Federal Trade Commission Act prohibits “unfair methods of competition in or affecting commerce.” While Congress intended Section 5 to play a vital role in the development of competition policy, courts have struggled in applying this vague and ambiguous language, resulting in case- law that lacks certainty and is inconsistently enforced. These difficulties are further highlighted in the context of unfair competition and data privacy.
Data, the currency that our digital world trades in, is largely collected by a small group of companies, Google, Meta, and Amazon. Concerns over how this data is collected and used have existed for decades and the intersection of competition law and data privacy law continue to grow. Businesses, large and small, benefit from the data these big data giants collect but at what cost? The United States lacks federal law that elaborates on what unfair competition is in the context of data privacy. Should big data companies, in the interest of data privacy, be prohibited from sharing the data they collect at the expense of competition? By first examining approaches taken by other legal systems and then by looking at cases from other jurisdictions, this article proposes that the United States should take a more proactive role in finding the balance between these two slightly opposing area
Chevron and Stare Decisis
Full text linkIn our contribution to this Chevron on Trial Symposium, we argue that the Supreme Court should not overrule Chevron in Loper Bright Enterprises v. Raimondo and its companion case Relentless v. Department of Commerce. We based our argument largely on statutory stare decisis. In particular, Chevron deference is a bedrock precedent in administrative law, relied on by the Supreme Court and the lower federal courts thousands of times since Chevron was decided in 1984. Congress, federal agencies, and the regulated public have also structured their affairs around the precedent. Conversely, the constitutional arguments against Chevron are unpersuasive, and the debate about the original understanding of judicial deference in the Administrative Procedure Act is murky at best. The doctrine of stare decisis, we submit, should be at its high point with respect to this statutory precedent.Chevron deference, moreover, advances important rule-of-law values in administrative law. Aside from the conventional values of agency expertise, enhanced deliberative process, and more politically accountable policymaking, our empirical scholarship sheds light on two less-appreciated values: national uniformity and predictability in federal law and less politics in judicial decisionmaking. Finally, we argue, the Court’s recent approach to Chevron has already addressed the concerns raised about the precedent—i.e., through more searching inquiries at Chevron steps one and two and the introduction of the major questions doctrine
Burning the Candle at Both Ends: A Case for the Right to Counsel at the State Habeas Level
Full text linkShinn v. Ramirez is the latest in a line of court decisions that place debilitating restrictions on the habeas corpus process, making it more difficult than ever for ineffective assistance of counsel claimants to prevail on a federal habeas claim. Paired with the growing restrictions placed on the criminal appellate process, both by the states and by the Supreme Court, these decisions make it near-impossible for many criminal defendants to challenge their convictions and guarantee their rights.
The decision not to guarantee counsel at the state habeas level is grounded in logic that predated these restrictions. The state habeas hearing has become, for many defendants, the first opportunity to challenge their convictions. For some, it may even be the only opportunity. Due to the increased importance of the state habeas petition itself and the opportunity for evidentiary development at this stage, it is high time to reconsider this decision.
Without a right to counsel at the state habeas proceeding, defendants harmed by ineffective assistance of counsel at prior hearings will face the habeas corpus process without the necessary assistance to make an adequate claim. Without guaranteed counsel, defendants are often forced to represent themselves, leading to faulty evidentiary records. Due to the decision in Shinn, these mistakes cannot be corrected at the federal habeas stage. Therefore, in order for indigent defendants to prevail on their ineffective assistance claims at the federal habeas level, counsel must be provided.
The right to counsel stems from the idea that indigent defendants will be left without the same quality of defense afforded to wealthy ones. Like the criminal trial and appellate stage, the state habeas hearing has taken on a level of critical importance: it is the last opportunity to develop the evidentiary record used to support a particular claim. In a system where many petitioners, either through counsel’s error or due to state procedural rules, will not be given an opportunity to bring their appeal, the state habeas claim may be the only chance they have to develop this claim. Without affording indigent state habeas petitioners an attorney, a line has been drawn between wealthier and poorer petitioners.
To preserve the opportunity to bring a habeas petition for all criminal defendants, and not just those who have the funds, the decision not to afford state habeas petitioners a right to counsel must be reconsidered
2024 Edenfield Jurist in Residence Lecture: Citizen Justice: The Environmental Legacy of William O. Douglas — Public Advocate and Conservation Champion
Full text linkM. Margaret McKeown, senior judge of the U.S. Court of Appeals for the Ninth Circuit, presented Citizen Justice: The Environmental Legacy of William O. Douglas — Public Advocate and Conservation Champion as the UGA School of Law\u27s 2024 Edenfield Jurist in Residence
Nickel Mining in New Caledonia and the Inflation Reduction Act
Full text linkThe passage of the Inflation Reduction Act (IRA) marked a step forward for the United States in incentivizing clean energy and reducing national reliance on fossil fuels. However, the IRA’s critical mineral requirement restricts the eligibility of electric vehicles for tax credits based on the origin or processing location of minerals used in electric vehicle batteries. The French territory of New Caledonia contains nickel reserves that would be invaluable to the production of electric vehicle batteries in the U.S. However, under the Inflation Reduction Act’s critical mineral requirement, the use of New Caledonian nickel in electric vehicle batteries may inhibit the ability of vehicles containing those batteries to qualify for the IRA’s tax credits. This Note argues that the U.S. should enter into a critical minerals agreement with France to remove this trade barrier with New Caledonia
Do Elections Really Have Consequences?: Presidential Indifference, Attenuated Accountability, and Policy Paralysis Within the Administrative State
Full text linkIn theory, the Constitution vests all, not “some” or “most,” of the executive power in the President; the buck supposedly stops at the Resolute Desk. Yet current practice falls well short of this constitutional ideal. The conjunction of fixed terms of office, good cause removal limits, and partisan balance requirements for the heads of multi-member independent federal agencies, boards, and commissions can and does leave critically important federal agencies effectively unaccountable to the President. Such a state of affairs existed at the Federal Communications Commission (FCC) from January 20, 2021, until September 25, 2023—over half of President Biden’s fouryear term of office—because the agency featured a 2–2 partisan deadlock that prevented it from undertaking any contested policy initiatives. Worse still, this deadlock arose because of defeated-President Donald Trump’s appointment of a Republican FCC Commissioner in December 2020. Nathan Simington’s FCC appointment to a term of office that extends to 2024, and conceivably until January 2027, made a mockery of the idea that elections have policy consequences and effectively hobbled the FCC under President Biden until he succeeded in appointing a fifth Democratic Party-affiliated commissioner.
A serious accountability problem arises when an Executive Branch agency is not subject to meaningful presidential control and oversight—an accountability problem that also raises serious separation of powers issues. When a multi-member federal agency lacks a majority of members who support the incumbent presidential administration’s regulatory policies and priorities, it becomes entirely implausible to posit that the President can actually supervise its activities (and reprimand its failures to act as well). Worse still, such circumstances permit the President to have his cake and eat it too by blaming the agency’s inaction on his lack of an effective ability to supervise the agency and its work. Even if such a state of affairs might be politically convenient for the President, it cannot be reconciled with a unitary executive model for the presidency. After all, the buck does not stop with the President if the President cannot exercise meaningful day-to-day control and supervision over an agency’s work.
If we truly have a unitary executive, then the President must enjoy meaningful supervisory powers over, and hence accountability for, all major executive branch agencies that wield significant policymaking authority—and this authority should exist from day one of the President’s term of office. Unfortunately, although the Federal Vacancies Reform Act (VRA) permits the President to name acting principal officers to cabinet departments and presidentially controlled agencies, the law expressly prohibits such acting appointments to any and all federal agencies that feature a multi-member head. This needs to change. Under the VRA, if the President may constitutionally appoint an acting Secretary of State or Attorney General who may exercise the vast, full powers of the office (despite lacking the Senate’s advice and consent) no good reasons exist for denying the President an identical power with respect to multi-member federal agencies. Indeed, a single member of a multi-member agency cannot act alone for that agency—rendering such acting appointments more plausibly “inferior” in character—and thereby reducing any separation of powers concerns. Accordingly, Congress should reform the VRA to empower the President to make acting appointments to independent federal agencies—and thus render it impossible for the President to disclaim the ability “to take Care that the Laws be faithfully executed.
Navigating the Trademark Parody Paradigm: Assessing the Impact of the ‘Bad Spaniels’ Decision on IP Owners, Creatives, and Self-Parody in the Post-Jack Daniel’s Era
Full text linkThis Note explores the blurred lines that now exist at the intersection of safeguarding trademark owners’ rights and protecting the public interest in freedom of expression, with a specific focus on the recent and unprecedented Supreme Court ruling in the ‘Bad Spaniels’ dog chew-toy trademark infringement case. The Supreme Court’s June 2023 decision in Jack Daniel’s v. VIP Products prompts a critical analysis of the once-dominant Rogers v. Grimaldi test, questioning its applicability in determining fair use and parody within the realm of trademark infringement. In examining what lies ahead for the evolving world of trademark law post-‘Bad Spaniels’, this Note draws connections to the cinematic landscape with a dissection of Greta Gerwig’s blockbuster film Barbie (2023). The film serves as a compelling case study, demonstrating a trend in how major IP owners, such as Mattel, have begun strategically engaging in self-parody to bolster their brand through the licensing of IP rights. In the wake of the ‘Bad Spaniels’ ruling and its profound implications on both the legitimacy of the Rogers test and trademark law more holistically, legal scholars are undoubtedly left in the dark as to the continued viability of the Rogers framework and will certainly confront future nuances in the field of trademark law as a result. This Note asserts that perhaps this observed shift in trademark law following the ‘Bad Spaniels’ decision might offer assurances to big-player IP owners, suggesting greater protection for their marks in commercial cases, or alternatively, we will witness a surge in creative industries opting for increased licensing of IP rights, as shown in the case of Mattel’s fully-licensed Barbie (2023) film, to steer clear of infringement issues entirely
Till Death Do Us Part(ner): Imputed Fraud Liability Concerns for Spouses Following the Supreme Court’s Decision in Bartenwerfer v. Buckley
Full text linkIn 2023, the U.S. Supreme Court resolved a decades-long debate regarding the ability to discharge liability imputed upon a debtor for another person’s fraudulent conduct. In Bartenwerfer v. Buckley, the Court held that the Bankruptcy Code prohibits discharge of any fraud liability—even when the debtor did not participate in the fraud but was married to and engaged in business with the person who did.
Scholars have long recognized the challenge of this type of business-partner imputed fraud liability in the context of a marital relationship. Creating a partnership merely requires intent of the parties to engage in business together, without any required documentation or filing with the state. As such, determination of the existence of a partnership relies on a case-by-case determination to discern the true intention of the putative business partners. The marital context adds a new challenge to this determination, as couples frequently share money and help each other in ways that might be construed as a business partnership. The Bartenwerfer decision makes the determination more fraught with consequences, since the nondefrauding business partner faces not only liability under state law but liability that cannot be discharged even in the last-resort option of bankruptcy.
Bankruptcy courts historically look at the state law standard for creation of a partnership, but the courts lack a clear set of guidelines to provide structure to the partnership determination. The tax courts and the Internal Revenue Service have faced similar issues in determining the tax liabilities and social security eligibility of spouses potentially engaged in business together, as well as in determining the existence of a business for tax purposes. Though rooted in tax issues, the cases start at the same place as any determination of a partnership: the intent of the parties to engage in business together. At the heart of these tax cases lie a trilogy of Supreme Court decisions from the mid-twentieth century and a more modern Supreme Court case. These decisions and rules outline factors to consider in finding the existence of a business, and they provide a more detailed framework for bankruptcy courts to determine the existence of a partnership among married couples or other family members. This article considers these cases to build a framework for determining liability and nondischargeability in bankruptcy cases
Statutory Solutions for Stealthing: How States Should Amend Their Laws to Address Nonconsensual Condom Removal
Full text linkIn recent years, growing awareness of “stealthing”—a term used to describe the act of removing a condom before or during sex without a partner’s consent—has led to widespread condemnation of the act as a form of sexual assault. However, legislatures across the United States have been slow to amend or add to their laws to specifically address stealthing, leaving countless victims without recourse. To date, only four states have successfully amended their laws to create civil penalties for stealthing, and not one treats stealthing as a crime. In an age where bodily autonomy seems increasingly at risk, it is imperative that states update their laws to clearly condemn stealthing.
This Note argues that states should amend their criminal codes to expressly include stealthing as an act that invalidates consent and, therefore, constitutes sexual assault. As an example, this Note explores ways in which Georgia’s state legislature might amend its current statutes to condemn stealthing. While this Note also discusses civil statutory approaches to stealthing and acknowledges the value of such approaches, it argues that civil liability alone is insufficient. To effectively combat stealthing and ensure justice for survivors, states should amend their existing civil and criminal statutes to clearly and expressly make stealthing a legally punishable offense