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*** Congress enacted ERISA, the comprehensive employee benefits reform statute, in 1974. ERISA created a strict fiduciary standard for those involved in the administration or management of employee benefit plans or their assets, a standard that requires such actors to make decisions solely in the interests of the plan’s participants and their beneficiaries. The Department of Labor and the federal courts, however,… 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)

A Holistic Look at Agency Enforcement

David L. Markell & Robert L. Glicksman Click here for PDF* David L. Markell** & Robert L. Glicksman*** The law review literature has long recognized that effective enforcement is an essential component of effective regulation. Yet much of the literature focuses on one aspect of the enforcement challenge or another. For example, the underlying theory about optimal levels of enforcement has received considerable attention, as have topics such as the relative merits of using deterrence-based versus cooperation-based… READ MORE

READ MORE | 93 N.C. L. Rev. 1 (2014)

The Constructive Role of Confusion in Trademark

Alfred C. Yen Click here for PDF*** This Article argues that consumer confusion plays a pervasive and important role in our trademark system. This argument directly challenges well-established orthodoxy. Numerous Supreme Court opinions and leading academics take the position that trademark law exists to reduce consumer confusion as much as possible. Indeed, courts generally justify aggressive creation and enforcement of trademark rights on the ground that these rights reduce consumer confusion or its… READ MORE

READ MORE | 93 N.C. L. Rev. 77 (2014)

The Mistake of Law Defense and an Unconstitutional Provision of the Model Penal Code

Gabriel J. Chin, Reid Griffith Fontaine, Nicholas Klingerman & Melody Gilkey Click here to view PDF*     Gabriel J. Chin,** Reid Griffith Fontaine,*** Nicholas Klingerman,**** & Melody Gilkey***** At common law, a defendant’s mistaken belief about the law was no defense, even if that mistake resulted from reasonable reliance on governmental advice. Thus, if a prosecutor or police officer erroneously advised that certain conduct was legal, the government was free to prosecute anyone following that advice. In the mid-1950s, two… READ MORE

READ MORE | 93 N.C. L. Rev. 139 (2014)

Virtually Possible: How to Strengthen Bitcoin Regulation Within the Current Regulatory Framework

Patrick Kirby Click here to view PDF*   I believe we are at the forefront of another twenty year journey of Internet-led transformation, this time in our global financial systems, and the opportunity is to foster that economic change while simultaneously putting in place the safeguards that only government can enable. —Jeremy Allaire, Chairman and CEO of Circle Internet Financial[1] Introduction Innovation leads the way to transformation. Small steps can turn into… READ MORE

READ MORE | 93 N.C. L. Rev. 189 (2014)

Shaping the Technology of the Future: Predictive Coding in Discovery Case Law and Regulatory Disclosure Requirements

Christina T. Nasuti Click here to view PDF*   [A]cquiring preemptive knowledge about emerging technologies is the best way to ensure that we have a say in the making of our future. —Catarina Mota, TEDGlobal Fellow[1]   Introduction The twentieth and twenty-first centuries brought about a technological revolution for businesses and everyday life. The legal profession was not left unchanged, as innovations from typewriters to computers to the Internet transformed legal practice. [2]… READ MORE

READ MORE | 93 N.C. L. Rev. 222 (2014)

The Two Hundred Million Dollar Question: Were Letters of Credit as Good as Cash in the MF Global Liquidation?

Valerie M. Hughes Click here to view PDF*   Introduction On October 31, 2011, MF Global, Inc. (“MF Global”) went bankrupt in the eighth-largest bankruptcy in U.S. history.[1] MF Global was a major futures commission merchant (“FCM”) that traded commodity futures contracts on behalf of customers in the commodity futures market.[2] During the European debt crisis, MF Global Holding Co., the parent company of MF Global, got into trouble as a result of… READ MORE

READ MORE | 93 N.C. L. Rev. 276 (2014)
Addendum

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… 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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