Deconstructing Arbitrary and Capricious Review

Louis J. Virelli III Arbitrary and capricious—or “hard look”—review is a legitimizing force in a political and legal environment that is increasingly hostile to administrative government. It employs principles of judicial deference to balance the authority of courts and agencies in pursuit of rational, transparent policymaking. It is thus no surprise that arbitrary and capricious review is a recurring topic of debate for both courts and commentators. Despite this active focus on hard look… READ MORE

READ MORE | 92 N.C. L. Rev. 721 (2014)

The Four Freedoms and the Future of Religious Liberty

John D. Inazu

READ MORE | 92 N.C. L. Rev. 787 (2014)

The Political Economy Of Board Independence

Urska Velikonja Institutional investors, exchanges, and government regulators have pushed for increased board independence. The push has continued despite, at best, inconclusive evidence that independent boards improve corporate performance or reduce corporate malfeasance. This Article suggests that institutional investors value director independence because it displaces more meaningful reform. Regulatory reform is inevitable after corporate scandals and crises. But, the content of that regulation is not inevitable. Institutional investors and managers have successfully… READ MORE

READ MORE | 92 N.C. L. Rev. 855 (2014)

Associations and the Constitution: Four Questions about Four Freedoms

Nelson Tebbe When should a constitutional democracy allow private associations to discriminate? That question has become prominent once again, not only in the United States but abroad as well. John Inazu provides a provocative answer in his impressive Article, Four Freedoms and the Future of Religious Liberty. According to his proposal, “strong pluralism,” associations should have a constitutional right to limit membership on any ground, including race. Strong pluralism articulates only three… READ MORE

READ MORE | 92 N.C. L. Rev. 917 (2014)

Reemphasizing Impracticability in the Special Needs Analysis in Response to Suspicionless Drug Testing of Welfare Recipients

James R. Jolley

READ MORE | 92 N.C. L. Rev. 948 (2014)

Holding Out for a Change: Why North Carolina Should Permit Holder Claims

Lauren A. Demanovich

READ MORE | 92 N.C. L. Rev. 988 (2014)

Goldilocks and the Fourth Amendment: Why the Supreme Court of North Carolina Missed an Opportunity to Get Officer Mistakes of Law “Just Right” in State v. Heien

John B. Lyman

READ MORE | 92 N.C. L. Rev. 1012 (2014)

Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism

Samuel Estreicher & Jeffrey M. Hirsch Commentators have long debated the merits of the American “at- will” rule, which allows employers and employees to end the employment relationship without cause or notice, absent a constitutional, statutory, or public policy exception. One premise for both proponents and opponents of at-will employment is to stress the uniqueness of this default among other developed countries, which generally require “cause” for most dismissals. Although other countries’ cause regimes differ significantly… READ MORE

READ MORE | 92 N.C. L. Rev. 343 (2014)

To The Victor Goes The Toil—Remedies For Regulated Parties in Separation-of-Powers Litigation

Kent Barnett The U.S. Constitution imposes three key limits on the design of federal agencies. It constrains how agency officers are appointed, the extent of their independence from the President, and the range of issues that they can decide. Scholars have trumpeted the importance of these safeguards with soaring rhetoric. And the Supreme Court has permitted regulated parties to vindicate these safeguards through implied private rights of action under the Constitution. Regulated… READ MORE

READ MORE | 92 N.C. L. Rev. 481 (2014)

Properties in Constitutional Systems: Reviewing Adrian Vermeule, The System of the Constitution (Oxford Univ. Press 2011)

Garrick B. Pursley

READ MORE | 92 N.C. L. Rev. 547 (2014)

Additional Time to Move Is Not the Issue with (Im)Mobile Homes: Why North Carolina Needs Statutory Reform to Provide the Mobile Home Owner-Tenant with Adequate Security of Tenure and Security of Investment

Chad T. Anderson

READ MORE | 92 N.C. L. Rev. 591 (2014)

No Country for Voicemails: How the CFPB Can Resolve a Paradox and Protect America’s Consumers from the World’s Fourth Oldest Profession

Tim Henderson

READ MORE | 92 N.C. L. Rev. 627 (2014)

The “Innocence and Redressability” Exception: A Fair Alternative to Habeas Jurisprudence’s Direct Versus Collateral Consequence Dichotomy

J. Clay Douglas

READ MORE | 92 N.C. L. Rev. 690 (2014)

The Undocumented Closet

Rose Cuison Villazor The phrase “coming out of the closet” traditionally refers to moments when lesbian, gay, bisexual, transgender, and queer (LGBTQ) individuals decide to reveal their sexual orientation or gender identity to their families, friends, and communities.In the last few years, many immigrants, particularly those who were brought to the U.S. illegally when they were very young, have invoked the narrative of “coming out.”Specifically, they have publicly “outed” themselves by disclosing their… READ MORE

READ MORE | 92 N.C. L. Rev. 1 (2014)

The Crimmigration Complex

Mary Fan The nation is attempting to accomplish immigration reform again.  Leaders vow that this time will be different. The two groups most targeted by immigration control law over the last century, Hispanics and Asians, have increased in numbers and political power. Conservative leaders are realizing that hostile policies toward people perceived as foreign are alienating rising demographic groups and that reform can be a peace offering. Yet, as in the past,… READ MORE

READ MORE | 92 N.C. L. Rev. 75 (2014)

Rendition Resistance

Christopher N. Lasch With the number of immigrant deportations setting new records, attention has focused largely on states like Arizona and Alabama, which seem to be competing to pass the harshest anti-immigrant state law provisions.  Yet laws like those at issue in Arizona v. United States, seeking to augment or supplement federal immigration enforcement efforts, represent only one side of the state and local response to the issue.  Recent years have also witnessed… READ MORE

READ MORE | 92 N.C. L. Rev. 149 (2014)

It’s Time to Let Go: Why Atmospheric Trust Won’t Help the World Breathe Easier

Caroline Cress The time for debating whether the climate is changing is long over. As climate variability increases, society must take action to mitigate the impacts of increased greenhouse gases in the atmosphere and to adapt to the changes that cannot be avoided. In the ongoing effort to combat climate change, one facially compelling proposal is the Atmospheric Trust, which contemplates expanding upon state common law—specifically the public trust doctrine—to recognize the… READ MORE

READ MORE | 92 N.C. L. Rev. 236 (2014)

An Antidote to Efforts by Drug Manufacturers to Delay the Entry of Generic Competition via Sham Petitioning

Ana Jemec Friedman With generic pharmaceuticals costing only a fraction of their brand-name counterparts, access to generic pharmaceuticals can significantly benefit American consumers. However, this access to generic pharmaceuticals also yields a detriment to brand-name manufacturers’ profitability. As a result,  some brand-name manufacturers have attempted to extend their pharmaceuticals’ exclusivity through various tactics, including filing sham citizen petitions with the FDA in an effort to delay the FDA’s approval of generic equivalents. Because… READ MORE

READ MORE | 92 N.C. L. Rev. 277 (2014)

Acts, Acquiescence, and Asylum: The Material Support Bar under Barahona v. Holder

Edward F. Roche

READ MORE | 92 N.C. L. Rev. 316 (2014)

Julius Levonne Chambers, Class of 1962: In Memoriam

John Charles Boger

READ MORE | 91 N.C. L. Rev. 1881 (2013)

“Going Once, Going Twice . . .”: The Dubious Legality and Necessity of North Carolina’s Auctioneer License Statute

Enrique Armijo Calling an auction in North Carolina without a state-granted license is illegal. More than half the states in the United States have also criminalized unlicensed auctioneering. North Carolina claims to restrict who can call auctions to protect the public from frauds. It has even gone so far as to claim the restriction applies to online auctioneers. The history of auctioneering, however, as manifested in a range of self-regulatory protections developed… READ MORE

READ MORE | 91 N.C. L. Rev. 1887 (2013)

Safeguarding the Propriety of the Judiciary

Jon P. McClanahan The ABA Model Code of Judicial Conduct and the judicial codes of conduct in nearly every jurisdiction admonish judges to avoid the appearance of impropriety. The North Carolina Code of Judicial Conduct likewise contained a similar prohibition until 2003, when the Supreme Court of North Carolina removed the language and made related amendments to the Code. Although North Carolina is an outlier in this regard, two questions remain: first, whether… READ MORE

READ MORE | 91 N.C. L. Rev. 1951 (2013)

Economic Development Incentives and North Carolina Local Governments: A Framework for Analysis

C. Tyler Mulligan In the global competition to recruit jobs and capital investment, North Carolina local governments routinely offer economic development incentives to private companies in exchange for promises to construct job-creating facilities locally. The North Carolina Supreme Court sanctioned such business recruitment incentives in this competitive context in the landmark 1996 case, Maready v. City of Winston-Salem. Today, however, local governments field a broad array of incentive requests, ranging from the traditional… READ MORE

READ MORE | 91 N.C. L. Rev. 2021 (2013)

Giving Away the Playbook: How North Carolina’s Public Records Law Can Be Used to Harass, Intimidate, and Spy

Ryan C. Fairchild State public records laws (PRLs) provide a powerful tool for promoting government transparency and accountability. However, because PRLs have such broad reach, those seeking to harass, intimidate, and spy can employ PRLs as a weapon. To mitigate deleterious uses of PRLs, legislatures include specific exemptions to protect more sensitive types of information from public view. Typical examples include records containing personally identifying information, law enforcement records for ongoing investigations, and… READ MORE

READ MORE | 91 N.C. L. Rev. 2117 (2013)

Negotiating Miller Madness: Why North Carolina Gets Juvenile Resentencing Right While Other States Drop the Ball

Molly F. Martinson In June of 2012, the Supreme Court of the United States held in Miller v. Alabama that any mandatorily imposed sentence of life imprisonment without the possibility of parole for juvenile offenders is unconstitutional as a violation of the Eighth Amendment. The Court ruled that before juveniles may be sentenced to life without parole, the sentencing authority in each case must have the ability to consider mitigating factors of the… READ MORE

READ MORE | 91 N.C. L. Rev. 2179 (2013)

Plain Error but No Plain Future: North Carolina’s Plain Error Review After State v. Lawrence

Troy D. Shelton When litigants fail to make timely objections to errors at trial, only some of those errors can be raised before an appellate court. Those that can be raised are subject to a deferential “plain error” standard of review. Recently, the Supreme Court of North Carolina announced a new standard for plain error review in State v. Lawrence. The new standard purports to require that the unraised error had “probable impact”… READ MORE

READ MORE | 91 N.C. L. Rev. 2218 (2013)

United States v. Lawson: Problems with Presumption in the Fourth Circuit

Anna H. Tison Changing technology impacts the way people interact with the law, including both judges and jurors. And with the advent of websites such as Wikipedia, juror misconduct—particularly in the form of researching aspects of the case online—is on the rise. Despite the Fourth Circuit’s admission that it had relied on Wikipedia in judicial opinions in the past, the court held in United States v. Lawson that a juror’s use of Wikipedia… READ MORE

READ MORE | 91 N.C. L. Rev. 2244 (2013)

North Carolina’s Duty to Read: The Demise of Accountability for Transactional Attorneys?

Jennifer L. Nusbaum

92 N.C. L. Rev. Addendum 147 (2014)

Reattaching the Severance Argument to Lanvale Properties: Counties’ Authority to Impose Non-Monetary Conditions on Housing Developments Affecting School Capacity

Bradley D. Harder

92 N.C. L. Rev. Addendum 120 (2014)

Who Can Call Coaching in Child Sexual Abuse Cases?

Hailey M. Bunce

92 N.C. L. Rev. Addendum 101 (2014)

Taking Back “Electronic Storage”: South Carolina’s Jennings and Why the Stored Communications Act Should (and Does) Protect Opened Emails

Rebecca A. Fiss

92 N.C. L. Rev. Addendum 76 (2014)

Expanding “Practical Sovereignty”: Pre-Deprivation Due Process Suits for Drone Strikes on Non-U.S. Persons

Amien Kacou It is now a matter of public knowledge that the U.S. government has operated, as part of its counterterrorism policy since September 11, 2001, a major program of extrajudicial targeted killings via unmanned aerial vehicles (i.e., “armed drones”). Undertaken by the U.S. military and the CIA pursuant to the 2001 Authorization for Use of Military Force (“AUMF”), U.S. drone strikes have targeted members of Al Qaeda and their vaguely defined… READ MORE

92 N.C. L. Rev. Addendum 57 (2013)

An Outrageous Response To “You’re Fired!”

William R. Corbett “[W]hile the loss of a job is often devastating to an employee and at times unfair, these considerations do not play a role under our employment-at-will doctrine, and our exceptions to this law, such as sex discrimination, are only based on the underlying discriminatory motivation of the decision maker.”

92 N.C. L. Rev. Addendum 17 (2013)


Donald G. Gifford & William L. Reynolds The Supreme Court will hear a case during its 2013-2014 term that will test the principles of both its conservative and the liberal wings. In Mississippi ex rel. Hood v. AU Optronics Corp., Justices from each wing of the Court will be forced to choose between the modes of statutory interpretation they usually have favored in the past and their previously displayed pro-business or anti-business predispositions. The issue is whether… READ MORE

92 N.C. L. Rev. Addendum 1 (2013)

Remembering the Consumer on the Advent of ICANN’s New gTLD Expansion

Matthew E. Nigriny The Internet traces its roots back to the late 1960s when “computers at Stanford and UCLA connected for the first time.” There were incremental advancements from that point forward, but the start of the Internet boom came in the mid-1990s. Between 1995 and 1999 the number of Internet users increased from around 16 million to near 250 million. This trend has continued, and it was estimated that there were around 2.4 billion people… READ MORE

91 N.C. L. Rev. Addendum 73 (2012)

Marching Toward a Day of Reckoning: Dissecting the Complex Intersection of Insurance Law and Climate Change Litigation Through AES Corp. v. Steadfast Ins. Co.

Douglas J. DeBaugh Recently, the Supreme Court held that the Clean Air Act displaces federal common law public nuisance claims. This ruling struck a significant blow to climate change plaintiffs, as the nuisance doctrine had become critical for parties seeking the abatement of greenhouse gas emissions and damages for harms caused by those emissions. Because the Court has declined to rule on the viability of state law tort claims, some scholars believe an… READ MORE

91 N.C. L. Rev. Addendum 95 (2013)

The Capture and Interrogation of § 1651 Pirates: The Consequences of United States v. Dire

James C. Douglas Typically, the phrase “piracy on the high seas” conjures up images of seventeenth and eighteenth century buccaneers looting the ships of rich monarchies. Perhaps due to this sentiment, Congress has not felt the need to substantively amend its general piracy statute—18 U.S.C. § 1651—in over 150 years. Maritime piracy, however, is making a comeback of sorts off of the coast of East Africa, a comeback that creates an issue for the… READ MORE

91 N.C. L. Rev. Addendum 119 (2013)

Use It or Lose It: The Fourth Circuit Keeping the Right to Rescind Under TILA Out of the Courts in Gilbert v. Residential Funding LLC.

Jared A. Knight The Truth in Lending Act provides a borrower the unconditional right to rescind a mortgage from the point of consummation until midnight on the third business day following the consummation of the mortgage transaction. However, if a lender fails to make certain required disclosures, the right is extended until all of the required disclosures are made or until three years have passed since the date of consummation. Issues arise when… READ MORE

91 N.C. L. Rev. Addendum 148 (2013)
Subscribe to the North Carolina Law Review