An Issue in Tribute to a Splendid Career William J. Turnier: UNC Law Colleague, 1973–2014

John Charles Boger Click here for PDF*** It is not every senior faculty member whose fondest wish upon retirement is less a dinner hosted in his honor or a public celebration in the Rotunda of Van Hecke-Wettach, but rather an issue of the North Carolina Law Review devoted to tax scholarship. Yet it seems completely fitting that William J. Turnier, a member of the University of North Carolina law faculty for the past… READ MORE

READ MORE | 93 N.C. L. Rev. 643 (2015)

The Moving Target of Tax Reform

Karen C. Burke & Grayson M.P. McCouch Click here for PDF* Karen C. Burke** & Grayson M.P. McCouch*** In 2000, Professor William Turnier proposed a package of three reforms to make the estate tax more “equitable” and “taxpayer-friendly.” All of his proposals—allowing a surviving spouse to inherit a deceased spouse’s unused exemption, replacing the state death tax credit with a deduction, and indexing the exemption for inflation—were eventually enacted. Today, the estate tax remains on the books,… READ MORE

READ MORE | 93 N.C. L. Rev. 649 (2015)

Getting Serious About Cross-Border Earnings Stripping: Establishing an Analytical Framework

J. Clifton Fleming Jr., Robert J. Peroni, & Stephen E. Shay Click here for PDF* Clifton Fleming, Jr.,** Robert J. Peroni,*** & Stephen E. Shay**** A multinational enterprise (“MNE”) may use cross-border earnings stripping as a tax planning strategy. This strategy involves a higher-tax affiliate making deductible payments to a low- or zero-tax affiliate to reduce the MNE’s global effective tax rate and, in the process, erode the corporate tax bases of countries where its economic activity otherwise would be more… READ MORE

READ MORE | 93 N.C. L. Rev. 673 (2015)

Taxing Compensatory Stock Rights Transferred in Divorce

Gregg Polsky & Kathleen DeLaney Thomas Click here for PDF* Gregg Polsky** & Kathleen DeLaney Thomas*** Stock-based compensation has become increasingly prevalent in recent years. As a result, many high net worth divorces now result in the transfer of compensatory stock rights from the employee spouse to the nonemployee spouse as part of the marital settlement. Despite this growing trend, the tax consequences of these transfers have not yet been explored fully. This Article endeavors to… READ MORE

READ MORE | 93 N.C. L. Rev. 741 (2015)

For Better and Worse: The Differing Income Tax Treatments of Marriage at Different Income Levels

Lawrence Zelenak Click here for PDF*** Although both marriage penalties and marriage bonuses exist at all income levels under the federal income tax, the system is tilted toward penalties for lower-income couples, toward bonuses for middle-income couples, and back toward penalties for upper-income couples. This Article begins by explaining how the tax rules produce these differing treatments of marriage at different points in the income distribution. It then argues that the increase… READ MORE

READ MORE | 93 N.C. L. Rev. 783 (2015)

The Death of the Clean Air Act’s PSD Provision?: The Practical Implications of Circuit Courts’ Failure to Properly Apply Chevron Deference

Heather M. Hillaker Click here for PDF*   Introduction America’s increasing environmental consciousness in the 1960s and 1970s led regulators to consider ways to further protect and enhance the nation’s air quality.[1] A monumental step occurred when the Clean Air Act of 1970 (“CAA”) was enacted.[2] A comprehensive statute, the Act was designed to “protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare… READ MORE

READ MORE | 93 N.C. L. Rev. 821 (2015)

Into the Future: The Statutory Implications of North Carolina’s Telepsychiatry Program

Jennifer M. Little Click here for PDF* Introduction Mr. Smith waits in the emergency department of a rural North Carolina hospital. He is schizophrenic, and the emergency department physicians determined that he is experiencing a psychotic episode. He needs to be seen by a psychiatrist immediately; unfortunately, the rural hospital does not have access to a full-time psychiatrist. So, Mr. Smith will wait¾potentially for hours, or even for days¾until the hospital’s part-time psychiatrist… READ MORE

READ MORE | 93 N.C. L. Rev. 863 (2015)

Syntax on Sin Tax: The Supreme Court of North Carolina Invigorates the Just and Equitable Tax Clause

K. Dawn Milam Click here for PDF* [E]quity is a law in our hearts; it conforms to no rule, but to circumstances, and decides by the consciousness of right and wrong. —George Crabb[1] Introduction The North Carolina Constitution requires the power of taxation to be “exercised in a just and equitable manner.”[2] For seventy-eight years after the language was adopted by amendment, the Supreme Court of North Carolina made perfunctory references to the… READ MORE

READ MORE | 93 N.C. L. Rev. 912 (2015)

Does the Public Care How the Supreme Court Reasons? Empirical Evidence from a National Experiment and Normative Concerns in the Case of Same-Sex Marriage

Courtney Megan Cahill & Geoffrey Christopher Rapp Click here for PDF* Courtney Megan Cahill** & Geoffrey Christopher Rapp*** Can the Supreme Court influence the public’s reception of decisions vindicating rights in high-salience contexts, like same-sex marriage, by reasoning in one way over another? Will the people’s disagreement with those decisions—and, by extension, societal backlash against them—be dampened if the Court deploys universalizing liberty rationales rather than essentializing equality rationales? Finally, even if Supreme Court reasoning does resonate… READ MORE

READ MORE | 93 N.C. L. Rev. 303 (2015)

FTC v. Actavis: The Patent-Antitrust Intersection Revisited

Glynn S. Lunney, Jr. Click here for PDF*** In FTC v. Actavis, the Supreme Court determined that courts should apply a rule of reason analysis to determine whether using a reverse payment settlement to resolve pharmaceutical patent litigation violates the antitrust laws. Essentially unique to pharmaceutical-patent litigation, a reverse payment settlement involves a payment from the patent-holder to generic challengers in return for the generics dropping their challenge to the patent(s) at issue and… READ MORE

READ MORE | 93 N.C. L. Rev. 375 (2015)

Two Hats, One Head, No Heart: The Anatomy of the ERISA Settlor/Fiduciary Distinction

Dana Muir & Norman Stein Click here for PDF* Dana Muir** & Norman Stein***                        *   © 2014 Dana Muir & Norman Stein.                   **   Arthur F. Thurnau Professor of Business Law, Stephen M. Ross School of Business at the University of Michigan. (734) 763-3091. I appreciate the research support provided by Michigan Ross and thank Loretta Tracy for research assistance. Both authors thank the following for helpful comments: Chris Christie, Mark DeBofsky,… READ MORE

READ MORE | 93 N.C. L. Rev. 459 (2015)

A Picture Is Worth A Thousand Words: The Legal Implications of Revenge Porn

Samantha H. Scheller Click here for PDF* Introduction When Holly Jacobs first met her high school sweetheart, everything seemed perfect. She dated Ryan Seay throughout high school, and then on and off for a few years following graduation. [1] Yet when Jacobs broke up with Seay in 2009, her life changed forever. After the breakup, Jacobs claims Seay lashed out at her by posting sexually explicit pictures and videos of her online—alongside her… READ MORE

READ MORE | 93 N.C. L. Rev. 551 (2015)

Placing the Seal on a Fractured Debate: How North Carolina Clarified Its Law of Hydraulic Fracturing and Can Strike the Right Balance with Preemption of Local Regulation

Bryan M. Weynand Click here for PDF* Introduction The often conflicting relationship between state and local regulation of the environment presents a difficult question for North Carolina as the state explores one of the energy industry’s most controversial practices: hydraulic fracturing.[1] This question is whether and to what extent local governments should have the authority to regulate hydraulic fracturing when the state has enacted a regulatory scheme promoting its use. It is a… READ MORE

READ MORE | 93 N.C. L. Rev. 596 (2015)

System Shock: Fontenot Shows Why North Carolina’s Contributory Negligence Rule Must Go

Hailey M. Bunce Click here for PDF* Only five United States jurisdictions remain shackled to the ancient, draconian rule of contributory negligence.[1] North Carolina is one of them.[2] Since 1869,[3] contributory negligence has barred North Carolina plaintiffs from recovering in negligence suits when the plaintiff’s own negligence contributed to his injuries.[4] Under this all-or-nothing rule,[5] even defendants who are ninety-nine percent at fault can completely escape liability for their wrongdoing, while plaintiffs who… READ MORE

READ MORE | 93 N.C. L. Rev. 623 (2015)

Online Bullying and the First Amendment: State Cyberbullying Statutes After People v. Marquan M.

Halley E. Phillips Click here for PDF* Introduction When fourteen-year-old Sarah[1] first signed up for, an anonymous, question-based social media site, the questions and answers were simple and fun.[2] But soon she started getting more sinister messages.[3] Anonymous posters began to tease Sarah about the boy she had a crush on at school.[4] Her mother was sure Sarah’s classmates were sending the messages, but there was no way to prove their identity.[5]… READ MORE

93 N.C. L. Rev. Addendum 179 (2015)

Earning a “C” for Rulemaking: The Ambiguity and Potential Impact of a Recent SEC Rule Governing Nationally Registered Statistical Rating Organizations

Kyle R. Cunnion Click here for PDF* Introduction Imagine the world’s richest person, Bill Gates, and his more than $80 billion net worth.[1] Now imagine 136 equally wealthy individuals, whose combined $11 trillion net worth[2] would exceed the 2013 gross domestic product (“GDP”) of every country in the world except for the United States.[3] Finally, imagine that all of these individuals and their associated wealth very quickly disappeared, such that every person even… READ MORE

93 N.C. L. Rev. Addendum 150 (2015)

He Shoots, He Scores: An Analysis of O’Bannon v. NCAA on Appeal and the Future of Intercollegiate Athletics

Christian Dennie Click here for PDF*** Introduction Intercollegiate athletics has experienced substantial financial gains over the course of the last two decades. During that time, student-athletes have demanded a larger piece of the pie, but the National Collegiate Athletic Association (“NCAA”) and its member institutions have refused to adopt policies that would allow for such gains. When legislative changes wane, litigation often spurs change. Ed O’Bannon, a former star men’s basketball student-athlete,… READ MORE

93 N.C. L. Rev. Addendum 90 (2015)

A License to Kill? Working to Understand Texas Penal Code Section 9.42 and Deadly Force in Defense of Property

Barton T. Lee Click here for PDF*       Introduction “If I see guns on TV where people are getting killed, I change the channel.”[1] These were the words of Ezekiel Gilbert, shortly after a Texas jury acquitted him of the murder of twenty-three-year-old Craigslist escort Lenora Ivie Frago.[2] The murder charge stemmed from an incident on Christmas Eve 2009 where Gilbert, believing Frago’s $150 fee included sex, shot Frago after she… READ MORE

93 N.C. L. Rev. Addendum 69 (2014)

Airing Out HAMP’s Dirty Laundry: Resolving Corvello, Wigod, and the Inherent Problems of the Home Affordable Modification Program’s Trial Period Plans

Clay S. Hester Click here for PDF     Introduction* The Home Affordable Modification Program (“HAMP”) “seems to have created more litigation than it has happy homeowners,”[1]  or so the Ninth Circuit recently acknowledged in Corvello v. Wells Fargo Bank, N.A.[2]  HAMP was created as an administrative program in late 2008 in response to the nationwide housing collapse and recession.[3]  The initial goal of HAMP was to aid “3 to 4 million at-risk… READ MORE

93 N.C. L. Rev. Addendum 39 (2014)

Big (Gay) Love: Has The IRS Legalized Polygamy?

Anthony C. Infanti Click here for PDF Big (Gay) Love: Has the IRS Legalized Polygamy?* Anthony C. Infanti** If the Supreme Court says that you have the right to consensual [gay] sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything. —Sen. Rick Santorum[1] Introduction Bigamy and polygamy… READ MORE

93 N.C. L. Rev. Addendum 1 (2014)

Consent, Resistance, and the Physically Helpless Victim: Modernizing North Carolina’s Second-Degree Rape Statute in Light of State v. Huss

Ramona H. McGee

92 N.C. L. Rev. Addendum 162 (2014)

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)
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