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Georgia State University Law Review
Number of Followers: 2  Open Access journalISSN (Print) 8755-6847 Published by Georgia State University  [1 journal]
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- A Square Double Helix in a Round Hole: Forensic Genetic Genealogy Searches
and the Fourth Amendment
Authors: Matthew Sweat
Abstract: A forensic genetic genealogy search (FGGS) involves law enforcement’s use of consumer DNA databases to generate leads to solve cold cases. As a result of more modern technological processes, the DNA profiles kept in consumer databases are far more revealing than the DNA profiles stored in the FBI’s Combined DNA Index System (CODIS). Accordingly, each DNA profile in a consumer database can be used to identify hundreds of relatives related to the DNA’s contributor.The government’s use of consumer DNA databases to locate the perpetrators of horrific, unsolved crimes has generated fans and critics. Supporters of FGGSs argue that, in light of the hundreds of thousands of unsolved crimes, this technique should be used in the name of justice and public safety. Critics of FGGSs argue that the government’s access to this kind of information is a Fourth Amendment violation, creating nationwide privacy risks since DNA profiles from only a small portion of the population could enable the government to identify nearly every citizen.This Note analyzes FGGSs in light of current Fourth Amendment jurisprudence. In particular, this Note examines FGGSs under the Katz v. United States framework in light of the uncertainty generated from the landmark Supreme Court decision of Carpenter v. United States. Ultimately, this Note concludes that the Katz framework cannot provide a satisfactory answer for the constitutionality of FGGSs and that state-based positive law fails to provide a workable regulatory framework for FGGSs.This Note proposes a pragmatic compromise. Similar to the Massachusetts Forensic Science Oversight Board, other states should create interdisciplinary oversight boards to monitor the use of FGGSs at the state level. These boards can implement policy consistent with the 2019 Department of Justice FGGS interim guidelines and update their programs as the federal government develops a more robust regulatory framework to guide the use of this novel and powerful technology.
PubDate: Thu, 02 Mar 2023 09:54:03 PST
- The Lawyer's Duty of Tech Competence Post-COVID: Why Georgia Needs a
New Professional Rule Now—More Than Ever
Authors: Julia Webb
Abstract: The American Bar Association (ABA) promulgates the Model Rules for Professional Conduct (Model Rules), which prescribe the behavior with which lawyers must comply in demonstrating competency to practice law. In 2012, the ABA updated Comment 8 to Model Rule 1.1 to require maintaining competence in the “benefits and risks associated with relevant technology,” also known as a lawyer’s “duty of technological competence.” A decade later, the majority of state bar associations have adopted and implemented this language. Georgia, however, remains among the last ten states that have not yet formally adopted the duty of technological competence. The COVID-19 pandemic forced most legal work online, and judges, lawyers, and their clients adjusted to this new normal. With the drastic rise in remote work, no reasonable dispute remains as to whether lawyers should be subject to a duty of technological competence, although questions arise about how this duty should be defined post-pandemic.This Note argues in favor of Georgia’s adoption of the duty of technological competence, proposes changes to the comments accompanying the Georgia Rules of Professional Conduct, and provides practical advice for legal practitioners and their technology departments.
PubDate: Thu, 02 Mar 2023 09:53:59 PST
- Overcoming the Presumption of the Deceitful Debtor
Authors: Rebecca Rhym
Abstract: Congress codified presumed consumer debtor abuse into the Bankruptcy Code with the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. Since then, distrust of low- and middle-class debtors has permeated the legal system, evidenced most visibly by how easily legislators are swayed by creditor lobbyists’ rhetoric. This distrust has also reached our courts, where judges invoke the doctrine of judicial estoppel to bar debtor-plaintiffs from pursuing tort claims undisclosed in bankruptcy petitions. Instead of addressing societal problems underlying the high number of bankruptcy filings, like financial literacy and predatory lending, this Note argues that lawmakers and courts are perpetuating those same problems in the name of abuse prevention. This Note explores the circuit split regarding bankruptcy nondisclosure and judicial estoppel and proposes a shift away from applying judicial estoppel in postbankruptcy civil claims.
PubDate: Thu, 02 Mar 2023 09:53:54 PST
- First, Do No Harm: Prioritizing Patients Over Politics in the Battle Over
Gender-Affirming Care
Authors: Greg Mercer
Abstract: The medical community’s move to reclassify gender dysphoria as a condition that results in distress rather than a mental disorder has been instrumental in destigmatizing transgender people. However, state laws that aim to strip physicians of their ability to prescribe gender-affirming care, along with physicians’ refusal to comply with federal regulations requiring access to gender-affirming care, threaten to undo those gains. Opponents of gender-affirming care attempt to wield the concept of medical judgment as both a sword and a shield—preventing physicians from exercising their medical judgment to provide gender-affirming care while simultaneously allowing physicians to abstain from providing it. Although the available research does not point to any one specific mode of treatment that is perfect for everyone, there is a consensus in the medical community that family acceptance and access to care are critical for the mental health of children experiencing gender dysphoria. Although lawmakers should ultimately leave a patient’s specific course of treatment to physicians who specialize in gender-affirming care, the legal community can still play a vital role by removing barriers that limit access to care.
PubDate: Thu, 02 Mar 2023 09:53:50 PST
- Choice of Law and Time, Part II: Choice of Law Clauses and Changing Law
Authors: Jeffrey L. Rensberger
Abstract: Modern choice of law analysis usually honors the parties’ contractual choice of governing law. But what happens when the law selected by the parties changes between the time of their contracting and the time of litigation' Or what if the law of the state whose law would otherwise apply changes so that its policy is now offended by the choice of law clause although its policy was not violated when the parties contracted' These questions raise the often-overlooked temporal aspect of choice of law analysis. Should courts regard the law to be applied as fixed to the time of the transaction or as changeable over time' The answers to these problems are influenced by several factors: the proper concern for current state policy; the parties’ expectations; and whether the new law invalidates a previously valid transaction or, alternatively, makes a previously invalid transaction valid.
PubDate: Thu, 02 Mar 2023 09:53:46 PST
- The Fourth Industrial Revolution and Legal Education
Authors: Steven R. Smith
Abstract: A “Fourth Industrial Revolution” (4IR) will dramatically change current law students’ careers. Innovations in technology, business, and social structures will require different and more sophisticated legal services. Law school graduates will be responsible for harnessing, encouraging, and establishing legal controls that offer society the benefits of these new technologies while limiting the undesirable side effects. At the same time, the recurring, repetitive practice of law will begin to disappear as more work is done much cheaper and better by machines.The 4IR presents extraordinary opportunities for law schools, the legal profession, and graduates, but it also presents significant challenges. To prepare students for professional practice and continuous improvement of the justice system, law schools will have to adjust students’ education and focus the curriculum on ensuring new competencies. Changing law school curriculum is generally more evolutionary than dramatic, but there is not enough time to slowly begin to prepare students for their professional lives in the 4IR. The Article concludes with several ideas about accelerating the process.
PubDate: Thu, 02 Mar 2023 09:53:41 PST
- When Does a Non-Fungible Token (NFT) Become a Security'
Authors: Brian Elzweig et al.
Abstract: Non-fungible tokens (NFTs) gained prominence in the news cycle during March 2021 when $69 million was paid in a cryptocurrency known as Ether for a unique digital art piece titled Everydays: The First 5000 Days. Regulating NFTs is complicated because the technology encompasses varied applications. Therefore, it is the particular use of a given NFT that will determine its appropriate regulatory regime. For example, NFTs may take the form of collectibles, data associated with a physical item, financial instruments, or permanent records associated with a person, such as marriage licenses or property deeds. Just like digital art in the form of NFTs, our laws and regulations are in a constant struggle to keep pace with rapid introduction and diffusion of technological changes. Unlike digital or cryptocurrencies which are fungible, NFTs are not. The effective regulation of United States securities markets has a significant impact on capital formation, job creation, economic security, and growth of both the American and global economies. In recent years, the advent of the internet has created novel regulatory challenges for the U.S. Securities and Exchange Commission (SEC).The focus of our Article is how and when an NFT becomes a security for purposes of U.S. securities law. We proceed in six parts. First, we briefly explain the evolution of the digital world and emergence of virtual economies within. Second, we describe blockchain technology and the growth in virtual currencies. Third, we provide an explanation of NFTs along with some examples of their various uses. Fourth, we discuss when an NFT is a security. Fifth, we explore SEC interpretations of when a crypto-asset is a regulatable security. And last, we conclude. Given the importance of U.S. securities markets in fostering job creation and global economic growth, we believe this work contributes to the understanding of this new technology and is of considerable interest to securities issuers, investors, and the regulatory community.
PubDate: Thu, 02 Mar 2023 09:53:36 PST
- Faculty Masthead
Authors: Georgia State University Law Review
PubDate: Thu, 02 Mar 2023 09:53:28 PST
- Member Masthead
Authors: Georgia State University Law Review
PubDate: Thu, 02 Mar 2023 09:53:23 PST
- First Inside Page
Authors: Georgia State University Law Review
PubDate: Thu, 02 Mar 2023 09:53:15 PST
- Inside Front Cover Page
Authors: Georgia State University Law Review
PubDate: Thu, 02 Mar 2023 09:53:10 PST
- Cover Page
Authors: Georgia State University Law Review
PubDate: Thu, 02 Mar 2023 09:53:06 PST
