North Carolina Law Review

Public Choice Theory and the Private Securities Market

Zachary J. Gubler One of the most important developments in the capital markets over the past decade presents a puzzle that needs to be solved. The development is the dramatic expansion of the unregulated market for private securities in the United States. The puzzle is that public choice theory, the dominant theory for explaining SEC behavior, fails to account for it. After all, the traditional public choice account predicts that the SEC will… READ MORE

The Health Care Cases and the New Meaning of Commandeering

Bradley W. Joondeph The Supreme Court’s decision in the Health Care Cases to sustain the central provisions of the Affordable Care Act (“ACA”) was hugely important in several ways. Most commentators have focused on the Court’s upholding of the ACA’s minimum coverage provision. But the Court’s Medicaid holding—that the ACA coerced (and thus commandeered) the states by making their preexisting Medicaid funds contingent on the states’ expanding their programs—may actually be more significant… READ MORE

Globalism, Public Policy, and Tax-Exempt Status: Are U.S. Charities Adrift at Sea?

Nicholas A. Mirkay This Article wrestles with whether charitable organizations’ international activities can or should impact such organizations’ domestic tax exemption. It addresses the issues raised by such international activities—if those activities contravene current U.S. foreign policy or international law is a charity’s tax-exempt status adversely affected? Does such contravention implicate the public policy doctrine? On one hand, this Article agrees with other legal scholars that the public policy doctrine needs congressional attention,… READ MORE

Retaliatory Disclosure: When Identifying the Complainant is an Adverse Action

Jamie D. Prenkert, Julie M. Magid & Allison Fetter-Harrott Sometimes the possibility of being publicly identified as a complainant will be enough to discourage a person from complaining. That is especially true when being identified as a complainant exposes her to a greater likelihood of reprisal. This paper addresses the circumstances when such publicity can be deemed materially adverse, such that it ought to be sufficient to support a claim of retaliation. We focus on the particular context of… READ MORE

The New Park Doctrine: Missing the Mark

Andrew C. Baird This Comment focuses on the recent and increasing link between the Park method of conviction and the accompanying exclusion penalty, and examines the implications of this combination for corporate counsel and executive officers in the health care and pharmaceutical industries. The types of offenses that trigger exclusion eligibility are generally known as public welfare offenses, a class of offenses that fits neatly into other forms of criminal offenses (“such as… READ MORE

On the Pulse of America: The Federal Government’s Assertion of Jurisdiction Over Electric Transmission Planning and its Effect on the Public Interest

Alexander T. Dadok Electricity is essential for our modern life. Currently, our country must make significant investments in its electricity infrastructure to continue efficient and safe delivery of electricity to customers. Planning how to invest, however, is fraught with controversy. That controversy is especially present in deciding whether to build additional transmission lines or make non-transmission investments such as more local “distributed” electric generation. The controversy in planning is amplified by a controversy… READ MORE

Two Faces of Janus in the District Courts: Is Liability for Securities Fraud Under Section 17(a) Limited to Actors with “Ultimate Authority” over Untrue Statements?

Andrew P. Arnold This Recent Development argues that limiting section 17(a) liability for untrue statements to individuals with “ultimate authority” over those statements is not supported by the Supreme Court’s reasoning in Janus. The Court provided three justifications for imposing an ultimate authority requirement. First, the Court pointed to the use of the word “make” in the text of Rule 10b-5, but this word “is absent from the operative language of Section 17(a).” Second,… READ MORE

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… 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)

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