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7 May 2026
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- Journal Article7 May 2026
404 Error - Relevance Not Found: Georgia’s Shift to Stricter Scrutiny of 404(b) Evidence in Wilson v. State
For decades, Georgia courts have treated Georgia Rule of Evidence 404(b) (“Rule 404(b)”) as an “evidentiary rule of inclusion,” an approach centered on the idea that if a prior act appeared relevant, it belonged in front of the jury. This practice was grounded in the belief that relevant prior criminal acts, like other forms of evidence, “should not lightly be excluded when central to the prosecution’s case.” In Wilson v. State, the Supreme Court of Georgia narrowed the standard for the admissibility of other-acts evidence, signaling a continuing judicial shift toward stricter evidentiary control that aligns more closely with the federal standard. The court rejected the State’s argument that Wilson’s desire “to rob people and to get their things” established a valid motive and emphasized that such reasoning amounted to the exact kind of general propensity argument that Rule 404(b) was intended to prevent. Similarly, the court clarified that evidence of a common plan or scheme must clearly demonstrate a distinctive modus operandi, thus raising the bar for admissibility under Rule 404(b). Wilson marks a pivotal doctrinal change, representing the culmination of a decade-long transition away from Georgia’s broadly inclusive approach to other-acts evidence and challenging longstanding assumptions about the flexibility of Rule 404(b). By demanding clear, non-character justifications for admitting other-acts evidence, the court emphasized that Rule 404(b) must be applied narrowly to prevent its use as a vehicle for general propensity arguments. The court’s holding in Wilson serves as both a guidepost and a warning: broad claims of relevance will no longer make it past the courtroom door.
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- Journal Article7 May 2026
Real, Not Rhetorical: Children’s Rights as the Strongest Constitutional Defense of Obergefell Against Religious-Liberty Challenges
Justice Kennedy’s decision to center adults’ rights in the Obergefell majority opinion—despite his awareness of children’s legal vulnerabilities—created space for Justice Thomas, in his Davis statement, to ignore children altogether and to reframe the constitutional question as a clash between adults’ rights: the right to marry and to be free from discrimination versus the right to exercise one’s religious beliefs and to refuse to engage in conduct that abrogate those beliefs. This distorted constitutional framing eclipses entirely the rights of children in same-sex families and the concrete harms they will face if their parents are barred from marrying—harms that provide a compelling justification for overriding Davis’s asserted religious objections and liberty interests. Had Obergefell articulated the harm to children more fully, this Article contends, the decision might be less vulnerable to being overturned, because children’s rights would be better positioned to operate as a constitutional check on Davis’s religious-liberty claims. The Court’s denial of certiorari in Davis offers Obergefell only a temporary reprieve; yet, as this piece underscores, the current political and jurisprudential landscape forecasts renewed efforts to overturn the epochal ruling. In the face of persistent and coordinated challenges, defenders of Obergefell should foreground and fully articulate the rights of children in their same-sex families as foundational to the constitutionality of marriage equality. Although children’s rights remain undertheorized and underdeveloped in Supreme Court jurisprudence, their existence has been repeatedly acknowledged by the Court, particularly in the familial context. Children’s unassailable rights provide the compelling interest that justifies limiting religious-liberty claims when those claims threaten the constellation of constitutional protections and material benefits children derive from their families and filial relationships—protections the law withholds when it prohibits their parents from marrying. - Journal Article7 May 2026
Trapped by Immunity: Women, Prisons, and the Need for Obvious Clarity
For many Americans, the mere thought of the prison system evokes great fear and uncertainty. The fear is justified and reflected through rampant reports of sexual abuse, exploitation, and abuse of power by prison officials. Lack of privacy in prisons is largely supported and expected. The general population of prisons have unique safety concerns which require closer surveillance and diligent observation by correctional officers. Prison officers are tasked with ensuring that all contraband stays out of inmate possession—notwithstanding the constant changes of the general population. The security interests of a prison also extend to prison visitors. The known security concerns that exist and require greater regulation in prisons create a distinctly unfortunate opportunity for abuse of incarcerated persons by prison officers and staff. Inmates are uniquely vulnerable without access to the outside world or autonomy of daily decisions, and officers possess both great authority and discretion to use it. Women are particularly vulnerable to sexual violence in prisons; this risk is even greater for women with a prior history of sexual abuse. It is estimated that 70% of guards in women’s federal prisons are male, which creates a strong opportunity for abuse of authority. Human rights activist groups have expended great effort to expose the sexual misconduct that happens in prisons. Ironically, our correctional facilities are not exactly correcting behavior for those incarcerated. Instead, our facilities are overcrowded and underfunded, doing nothing but housing the criminally convicted. The prevalence of sexual abuse and other officer misconduct in prisons creates more issues for inmates upon release, undermining the efficiency and operation of the prison system’s purpose. The psychological harm which stems from prison rape has adverse impact on our communities. The trauma of being sexually assaulted in prison increases the risk of suicide and the risk of becoming violent later. Some prisons have shifted to designating certain security officer positions to be female-only to reduce the likelihood of sexual abuse. It is unclear whether the reduction of male officers in female prisons is effective, especially because there is widespread misconduct and abuse by prison officers irrespective of gender. - Journal Article7 May 2026
All Rights Reserved . . . for Disney: Corporate Mouse Traps, a Frozen Public Domain, and How A.I. May Usher in a Whole New World for Copyright
Copyright, as a body of law, is a recent development in the human consciousness, originating in 1710 with England’s Statute of Anne. Nevertheless, in the three hundred years that followed, more copyright laws were enacted than murder statutes throughout recorded history. With these successive statutes, corporations have effectuated the largest land grab ever seen. Modern copyright law is the elephant in the room in discussions of wealth inequality, perpetuating evil inside and between countries. Moreover, it has deprived humanity of cultural roots, locking ideas behind a paywall that funnels wealth to the few and stymies ingenuity through the sterilization of the public domain. This theft of art and culture is the result of successive reforms, funded by skillful corporate lobbying disguised as the protection of artists. Nevertheless, intellectual property (“IP”) need not have ended up this way, and recent technological developments in artificial intelligence (“A.I.”) have pushed these laws to the breaking point. This system, built on “a kind of schizophrenia” and legal doublespeak presented through forked tongues, has reached its haziest frontier with A.I. This paper does not attempt to resolve issues of A.I. copyright under the present framework because, fundamentally, the present structure “can only be seen as a temporary workaround to a problem that has no solution under current laws.” Instead, by analyzing the historical development of copyright, intentions behind its creation, evils of its present form, and economics of the modern world, this paper proposes two solutions for the necessary reform of the system: first, copyright abolition or, second, a return to the limitations imposed by the first American copyright law. - Journal Article7 May 2026
No More Guessing Games: Rebuilding Clarity in Georgia’s Ante Litem Notice Statute
Imagine a child’s shape sorter toy—the kind with square, circle, and triangle-shaped holes and equivalent pegs in the same shapes. The toy forms a foundation in a child’s development because, among other things, it teaches the child to problem-solve by (1) recognizing the problem (different-shaped pegs that must go in the sorter a certain way) and (2) solving it (placing each peg in the correct hole to sort the pegs). For simplicity’s sake, let us imagine the toy only has a square and circle-shaped hole with square and circle-shaped pegs. As the child intuitively learns the “rules” of the toy, the child learns what works: the square peg must go into the square hole, and the circle peg must go in the circular hole. The child also learns what does not work: the square peg cannot go in the circular hole, and the circular peg cannot go in the square hole. Now imagine the same toy—only having the square and circle-shaped holes—but it has additional shaped-pegs (triangle, trapezoid, and rectangle) to go with it. Evidently, the toy manufacturer must be trying to confuse the child. “How does a triangle fit into a circle?” the child asks himself. Now the child’s mind is in a tailspin. What he once learned is now discombobulated. Put simply, the toy is now a guessing game. The Supreme Court of Georgia’s recent holding in Fleureme v. City of Atlanta ("Fleureme II") creates similar headaches for litigants, giving them more “pegs” (potential avenues to serve notice) than “holes” (successful avenues for serving notice). Imagine a claimant in Atlanta, Georgia, is injured and wishes to sue the city for those injuries. The claimant retains counsel who advises the claimant that he must send the requisite ante litem notice to the municipality. The attorney performs research to determine all the statute’s requirements that must be satisfied. He finds Fleureme II, which holds that a claimant’s ante litem notice satisfies the statute’s service requirements if the claimant substantially complies with the statute, meaning absolute precision is not required. The court in Fleureme II determined that an ante litem notice addressed to “Office of the Mayor” substantially complied with the statute. Counsel writes up the ante litem notice to send to the municipality and addresses the notice to “City Hall” because he believes that doing so substantially complies with the statute. The city never received the notice because the mail handler did not know where to send the notice. The city could not research the incident giving rise to the claimant’s potential claim against the city. And since the claim has not properly been served to the requisite official, the claimant risks losing what may have otherwise been a valid claim, simply because service could not be properly effectuated. This is the primary risk in Fleureme II’s aftermath. The court in Fleureme II eliminated “hyper-technical” compliance with the statute’s addressing requirements to focus on the merits of claims.4 But in doing so, it gives rise to legitimate procedural concerns in the future that the statute originally curtailed. - Journal Article7 May 2026
Finally, a Fair Shot: Supreme Court Shoots Down the Moment-of-Threat Doctrine in Barnes v. Felix
The Framers designed America’s legal system with the belief that no one, not even the government, is above the law. The right to hold government officials accountable before a court reflects the Framers’ vision that justice resides in the people themselves. Unfortunately, countless citizens who suffer excessive force are barred from presenting their stories to the jury. Nowhere is the clash between liberty and authority more visible than in encounters between police and citizens. Every day, those who wear the badge are forced to make difficult judgment calls in volatile situations. In 2024, 147 officers lost their lives in the line of duty. Each death is a stark reminder that maintaining public safety comes at a cost. These officers were not faceless enforcers of the law; they were fathers, mothers, sons, and daughters who gave their lives in service to their communities. Police officers are not the only ones who face harm. In that same year, 1,365 people lost their lives during an encounter with law enforcement. Each of those individuals was someone the officer had sworn to protect. Their deaths underscore the deadly stakes of modern policing. To reduce these tragedies, the Supreme Court of the United States defined the boundaries the Constitution places on police conduct. Excessive-force jurisprudence evaluates police uses of force under the Fourth Amendment’s objective-reasonableness standard. Despite dozens of opinions from the Court, one question has divided the lower courts: how much context is enough? Some courts believed the answer was just the very moment the officer deployed force, while others looked more broadly into the encounter. In an effort to clarify, the Supreme Court held that courts must analyze the totality of the circumstances of the encounters. By doing this, the Court changed the way that claims of excessive force will be examined for many years to come. - Journal Article7 May 2026
What Attorneys “Ott” To Do: The Supreme Court Clarifies Judgmental Immunity in Georgia
The Supreme Court of Georgia dealt a swift blow to the Court of Appeals of Georgia’s interpretation of judgmental immunity in a recent decision. For over three decades, the court of appeals recognized a subjective defense that shielded attorneys from liability for mistakes made while representing a client. Under this interpretation of judgmental immunity, attorneys prevailed on motions for summary judgment by demonstrating that they had exercised their honest professional judgment in making the challenged decision. Now, in Cox-Ott v. Barnes & Thornburg, LLP, a unanimous opinion by the supreme court held that attorneys are no longer entitled to the protections of the judgmental immunity doctrine, as interpreted by the court of appeals. Gone are the days when attorneys prevailed in malpractice suits solely on a showing of honest professional judgment and decision-making. The supreme court has held that the standard for attorneys in malpractice actions is whether their conduct falls below the standard of reasonable care in the legal profession. By redefining this defense, the supreme court has increased attorneys’ exposure to malpractice litigation for their conduct while representing clients. Attorneys will be less likely to succeed on motions for summary judgment and will face various professional and financial repercussions arising from malpractice suits. Georgia lawyers’ best practice should be to carefully document the research and investigation underlying their judgments to protect against potential malpractice suits. The redefinition of judgmental immunity will also likely increase the cost of settling malpractice claims, raise malpractice insurance costs, and lead to more arbitration clauses in engagement agreements. The supreme court’s redefinition of judgmental immunity will ultimately reshape the risks attorneys across Georgia face in client representation and have far-reaching effects on attorney conduct. - Journal Article7 May 2026
404 Error - Relevance Not Found: Georgia’s Shift to Stricter Scrutiny of 404(b) Evidence in Wilson v. State
For decades, Georgia courts have treated Georgia Rule of Evidence 404(b) (“Rule 404(b)”) as an “evidentiary rule of inclusion,” an approach centered on the idea that if a prior act appeared relevant, it belonged in front of the jury. This practice was grounded in the belief that relevant prior criminal acts, like other forms of evidence, “should not lightly be excluded when central to the prosecution’s case.” In Wilson v. State, the Supreme Court of Georgia narrowed the standard for the admissibility of other-acts evidence, signaling a continuing judicial shift toward stricter evidentiary control that aligns more closely with the federal standard. The court rejected the State’s argument that Wilson’s desire “to rob people and to get their things” established a valid motive and emphasized that such reasoning amounted to the exact kind of general propensity argument that Rule 404(b) was intended to prevent. Similarly, the court clarified that evidence of a common plan or scheme must clearly demonstrate a distinctive modus operandi, thus raising the bar for admissibility under Rule 404(b). Wilson marks a pivotal doctrinal change, representing the culmination of a decade-long transition away from Georgia’s broadly inclusive approach to other-acts evidence and challenging longstanding assumptions about the flexibility of Rule 404(b). By demanding clear, non-character justifications for admitting other-acts evidence, the court emphasized that Rule 404(b) must be applied narrowly to prevent its use as a vehicle for general propensity arguments. The court’s holding in Wilson serves as both a guidepost and a warning: broad claims of relevance will no longer make it past the courtroom door. - Journal Article7 May 2026
From “Filed Under Seal” To “Frivolous on Appeal”: Potts v. Richardson and Georgia’s Movement Toward Enforceable Professionalism
Potts v. Richardson marks a turning point in Georgia’s professionalism movement. On its face, the case involved an application of Georgia’s anti-SLAPP statute and the privilege afforded to communications made in connection with judicial proceedings. But the Court of Appeals of Georgia did more than resolve a defamation dispute. By imposing a $2,500 sanction under Rule 7(e) for what the court deemed a frivolous appeal, it in effect sanctioned a lawyer for conduct that violated the Georgia Lawyer’s Creed and Aspirational Statement on Professionalism. Georgia has been a leader in the modern professionalism movement for decades. Central to that commitment is the Chief Justice’s Commission on Professionalism, established in 1989 by the Supreme Court of Georgia, “with the primary charge to enhance professionalism among Georgia’s lawyers.” Over the years, the Commission developed CLE courses, supported orientation programs for law students, and produced the Lawyer’s Creed and Aspirational Statement on Professionalism as the foundational documents of professionalism in Georgia. These texts urge lawyers to treat clients, adversaries, and courts with courtesy and respect, but they are explicitly framed as aspirational. Justice Benham, in his concurrences in Evanoff v. Evanoff and Butts v. State, captured this distinction, reminding the bar that “ethics is that which is required and professionalism is that which is expected,” and warned that, when professionalism is left to aspiration alone, “blind and unbridled advocacy” corrodes public confidence in the courts. Potts illustrates that Georgia courts are beginning to close the gap between these aspirational ideals and enforceable standards. By deploying Rule 7(e) sanctions sua sponte, the court of appeals treated Potts’s lack of civility not merely as regrettable but as sanctionable misconduct. Judge Hodges’s concurrence sharpened this point, casting Potts’s conduct as a cautionary tale about how easily incivility can escalate into abusive litigation that ultimately drains judicial resources and undermines the dignity of the profession. This Casenote examines more than an anti-SLAPP dispute. The court of appeals’s decision in Potts v. Richardson, reinforced by Judge Hodges’s concurrence, reflects Georgia’s longstanding commitment to professionalism while marking a decisive shift in how that commitment is enforced. Though the professionalism movement once relied on aspirational statements and cultural expectations, Potts represents something new by showing that courts are more willing to impose consequences when lawyers disregard civility. Potts stands as a turning point in Georgia’s professionalism movement, signaling that civility is no longer merely encouraged but enforceable.
Most Popular Articles
- Journal Article1 May 1998
Maryland v. Wilson: The Fading Fourth Amendment
In Maryland v. Wilson, the United States Supreme Court held that a police officer may order a passenger of a lawfully stepped car to exit the vehicle. This "bright-line rule" allows these intrusions as a matter of course and does not require case-by-case determination. - Journal Article1 July 1976
The Economic Effects of Monopoly: A Lawyer's Guide to Antitrust Economics
Four factors were influential in my decision to write this survey paper summarizing what economists believe theoretically and have found empirically to be the major economic (and noneconomic) effects of monopoly. First, in my work as an expert witness in antitrust cases representing both private parties and public bodies, I have found a glaring lacuna in the minds of some judges, a number of lawyers and most jurors in the area of antitrust economics. Second, this feeling has been fortified by my guest lectures in antitrust law courses; while the students are bright and the teacher dedicated, an acceptable level of competence in antitrust economics had successfully evaded its pursuers. Third, my reading of several law journals has convinced me that there are a large number of legally competent antitrust lawyers who are not very familiar with antitrust economics. Finally, I was motivated by the growing realization that people do not regard antitrust violations as very serious. The July 1974 issue of SCIENCE DIGEST reported a cross-section study of Baltimore residents in which the respondents were asked to rate the seriousness of crimes from 9 (most serious) to 1 (least serious). The highest mean score recorded was "planned killing of a policeman" (8.474), and the lowest mean score was "being drunk in public places" (2.849). Of the 140 crimes listed three were of an antitrust genus. "Fixing prices of a consumer product like gasoline" ranked 126 from the top (4.629), "fixing prices of machines sold to businesses" ranked 127 (4.619), and "false advertising of a headache remedy" ranked 132 (4.083). Offenses such as "breaking a plate glass window in a shop," "refusal to make essential repairs in rental property," "shoplifting a carton of cigarettes from a supermarket," "driving while license is suspended," "lending money at illegal interest rates," "joining a riot," and "using pep pills" are each regarded as more serious than the antitrust violations! In Part I we will explore in some detail the economic (and some noneconomic) effects of monopoly. In Part II we will examine briefly public policies toward monopoly. - Journal Article1 March 2022
The Protection of Freedom of Expression from Social Media Platforms
Social media platforms have overturned the previously known system of public communication. As predicted at the outset, the spread of the public Internet that started three decades ago has resulted in a paradigm shift in this field. Now, anyone can publish their opinion outside the legacy media, at no significant cost, and can become known and be discussed by others. Due to the technological characteristics of the Internet, it might also be expected that this kind of mass expression, with such an abundance of content, would necessitate the emergence of gatekeepers, similar in function to the ones that existed earlier for conventional media. The newsagent, post office, and cable or satellite services have been replaced by the Internet service provider, the server (host) provider and the like. However, no one could have foreseen that the new gatekeepers of online communication would not only be neutral transmitters or repositories but also active shapers of the communication process, deciding on which user content on the Internet they deemed undesirable and deciding which content, out of all the theoretically accessible content, is actually displayed to individual users. Content filtering, deleting, blocking, suspending, and ranking are all types of active interference with the exercise of users’ freedom of speech and practices which also affect the interests of other users in obtaining information. All this became an even greater and more difficult-to-manage issue when, in certain sub-markets of the Internet, certain giant tech companies’ services gained a monopoly or came close to doing so. This process has emerged in connection with gatekeepers of a specific type: the most important online platforms (social media, video sharing, search engines, web stores). In this way, a new, unexpected obstacle to the exercise of freedom of speech appeared, with the result that the earlier constitutional doctrines could no longer be applied without any change. The crux of the problem is that the platforms are privately owned. In formal terms, they are simply market players which are not bound by the guarantees of freedom of speech imposed on public bodies and which may enjoy the protection of freedom of speech themselves. - Journal Article1 December 2014
- Journal Article1 March 1992
Assassination and the Law of Armed Conflict
The availability of assassination of foreign leaders as a means of achieving United States foreign policy objectives is an issue that has proven in recent years to be a recurring one. However, it does not arise in isolation; instead it is almost always part of a larger political controversy over United States foreign policy objectives and whether force of any kind should be used to pursue them. Certainly this was true with regard to the controversies that surrounded United States policy, including alleged involvement in assassination plots toward Cuba, Vietnam, the Congo, and the Dominican Republic in the 1960s, and toward Chile in the early 1970s. It is also true, though to a lesser degree, of more recent debates concerning the United States air strike against Libya in April 1986 and the role of the United States in Panama prior to the December 1989 invasion. In each case there was, or later developed, significant disagreement over the appropriateness of United States policy toward the nation involved and over the use of force to induce changes in the nature or activities of its government. Inevitably, such disagreements have tended to distract attention from the manner in which force might be applied; if the chosen objective appears not to be a legitimate one or if the use of force seems unjustified, the relative merit of an -attack on a military installation, for example, as seriously or productively considered. The recent war in the Persian Gulf has again revived the controversy and provided a new opportunity for debate. This time, however, the issue appeared more starkly framed than previously. Public doubt as to the legitimacy of the immediate objective-the ejection of Iraq from Kuwait-was for the most part absent, and although there was disagreement about the timing and amount of coercion to be used, force was generally perceived as a legitimate option. The American public perceived Iraqi President Saddam Hussein, hardly a sympathetic image, as probably the least ambiguous villain of the second half of the twentieth century. Unchallenged by any significant political opposition prior to the war, he appeared as the sole instigator of Iraq's seizure of Kuwait, as well as the cause of its intransigence in the face of international insistence that it withdraw. - Journal Article1 May 1993
Article II Courts
It is understandable that a reader may be puzzled by the title of this study. American lawyers are undoubtedly familiar with the notion of "constitutional" courts established under Article III of the Constitution.1 They also are likely to recall another class of federal tribunals, created by virtue of the legislative authority vested in Congress by Article I of the Constitution.' However, few lawyers and scholars are aware that there exists a third class of courts created by the Constitution. These are executive courts that, from time to time in the Republic's history, have been formed to administer justice, in times of war or civil unrest, over territories occupied by American armed forces. There is no question that these tribunals have been considered anomalous, as aberrations of established constitutional order. Indeed, little intellectual effort has been expended in examining the constitutional place of presidential courts. In the midst of war or its aftermath, few were brave enough to criticize the President's establishment of courts of law. Fewer still were prepared to argue that his power should be limited by other provisions of the Constitution. Instead, a pattern of judicial deference begun with the establishment of the first such court in the Mexican War of 1846 has persisted to this day. Exceptions to this trend have been noted, and it may even be apparent that a new constitutional practice of Article II courts has evolved. Nonetheless, the President's power in this field has gone virtually unchallenged. This Article carefully examines the creation, operation, and jurisprudence of executive courts. As a first step, however, it is essential to accurately define what is meant when one refers to an Article II court. This inquiry places in sharp focus the traditional constitutional dichotomy between Article III "constitutional" courts and Article I legislative tribunals. Adding presidential courts to this matrix does not upset the analysis used heretofore; it merely places a greater premium on identifying the constitutional source of power for creating the court in question. Once this Article clarifies what is and what is not an executive court, it will introduce the historical examples of this institution. I have identified twelve tribunals that satisfy the definition propounded here. Although most date from the Civil War and before, four of them operated in this century, and one of them rendered a judgment no more than twelve years ago. Undoubtedly others exist that my research has not revealed. Each of these courts shared one thing in common: they were established by federal authorities occupying territory as a result of armed conflict. The constitutional problems raised by belligerent occupation, including the maintenance of law and order and the establishment of justice, will be considered since this provided the practical imperative for the exercise of the President's power to constitute judicial tribunals. How the President exercised and delegated this power is also significant. More important, however, is to understand how the power was limited, whether by the President's own restraint, judicial review, or the passage of time and the termination of hostilities.