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Articles 1 - 25 of 25
Full-Text Articles in Law
The Danger To Confidential Communications In The Mismatch Between The Fourth Amendment's "Reasonable Expectation Of Privacy" And The Confidentiality Of Evidentiary Privileges, Robert P. Mosteller, Kenneth S. Broun
The Danger To Confidential Communications In The Mismatch Between The Fourth Amendment's "Reasonable Expectation Of Privacy" And The Confidentiality Of Evidentiary Privileges, Robert P. Mosteller, Kenneth S. Broun
Campbell Law Review
In May 2009, a bare majority of the Supreme Court of North Carolina decided State v. Rollins, making a serious mistake in privilege law that if applied generally will undermine the valued protections of evidentiary privileges. Ordinarily, few might criticize a ruling admitting statements like those made by the defendant, Mickey Rollins, who indicated his guilt for a homicide. However, Rollins' statements were made to his wife, and under established precedent, those conversations should have been ruled a privileged marital communication.
Law School Histories: A Panel Discussion
Law School Histories: A Panel Discussion
Campbell Law Review
At the Sixty-First Annual Meeting of the Southeastern Association of Law Schools held in Palm Beach, Florida in July 2008, a panel was convened to discuss the researching, writing, and publishing of law school histories. What follows is an edited transcript of the program.
Federal Prosecution Of State And Local Officials Using Honest Services Mail Fraud: Where's The Line?, George E.B. Holding, Dennis M. Duffy, John Stuart Bruce
Federal Prosecution Of State And Local Officials Using Honest Services Mail Fraud: Where's The Line?, George E.B. Holding, Dennis M. Duffy, John Stuart Bruce
Campbell Law Review
Although there is little dispute that the mail fraud statute has become a valuable part of a federal prosecutor's arsenal, for years legal scholars have debated the extent to which the mail fraud statute should be used to prosecute corrupt state and local officials. In recent years, largely in response to the large number of high profile honest services fraud prosecutions, even members of the mainstream news media are beginning to seek guidance regarding the definition of honest services mail fraud. As noted by Professor George Brown, though the controversy over whether the national government should be responsible for prosecuting …
Proportionality In Discovery: A Cautionary Tale, John L. Carroll
Proportionality In Discovery: A Cautionary Tale, John L. Carroll
Campbell Law Review
"There has been widespread criticism of the abuse of discovery."' That statement comes not from a recent edition of the Defense Research Institute newsletter but from the Advisory Committee notes to the 1980 amendment that gave us the Rule 26(f) conference. Discovery abuse and the increase in the cost of litigation that flows from such abuse has been a constant theme emerging from analysis of the civil justice system.
What Went Wrong? Torture And The Office Of Legal Counsel In The Bush Administration, Robert F. Turner
What Went Wrong? Torture And The Office Of Legal Counsel In The Bush Administration, Robert F. Turner
Campbell Law Review
Were mistakes made in the preparation of the controversial OLC memoranda? There is no question about it; they were very serious mistakes, and they have harmed this country. But I think part of the explanation is that the authors of the "torture" memoranda lacked sufficient expertise in national security law, and honestly believed that a conflict involving more than seventy-five sovereign nations was "international" in scope. They reasonably read the language in Common Article 3 limiting its application to conflicts "occurring in the territory of one of the High Contracting Parties" as excluding its applicability to a struggle taking place …
Holding The High Ground: The Operational Calculus Of Torture And Coercive Interrogation, Joseph L. Falvey Jr., Brian D. Eck
Holding The High Ground: The Operational Calculus Of Torture And Coercive Interrogation, Joseph L. Falvey Jr., Brian D. Eck
Campbell Law Review
In Part I of this Article, we first consider some of the strengths and weaknesses of the partially adequate objections. In Part II, we explore torture in light of the biological distinction between pain and suffering and consider the implications of that distinction for our understanding of free will and the fighting spirit. Finally, in Part III, we suggest a more fundamental view of torture that navigates between the Scylla of naive moralizing and the Charybdis of ticking time-bombs. We propose that the debate should focus on torture's effect on our country's moral certainty, on the fighting spirit of our …
Reasonableness In E-Discovery, Debra Lyn Bassett
Reasonableness In E-Discovery, Debra Lyn Bassett
Campbell Law Review
Issues of reasonableness arise regularly throughout American law. Reasonableness is a concept central to tort law, which imposes a reasonable person standard in ascertaining duty. Criminal guilt turns on a reasonable doubt standard. And in civil discovery, the concept of reasonableness features prominently: discovery's scope reaches information that is reasonably calculated to lead to the discovery of admissible evidence, and discovery cannot be unreasonably cumulative or duplicative. Reasonableness standards require judges to undertake an objective, rather than subjective, evaluation. E-discovery specifically has two significant overarching reasonableness components: reasonable accessibility for production and reasonable care in preservation and disclosure. The interpretation …
Cell Phone - A "Weapon" Of Mass Discretion, Mark L. Mayakis
Cell Phone - A "Weapon" Of Mass Discretion, Mark L. Mayakis
Campbell Law Review
Initially, this Comment will discuss the development of the search incident to arrest exception from the warrant requirement and how this exception has been generally defined and judicially interpreted. The next section will include a discussion of how the search incident to arrest exception has been applied to searches of the content stored within pagers. This Comment will then explain how modern cell phones have created difficulties for courts applying the search incident to arrest exception, causing these courts to diverge down two different lines of reasoning, ultimately reaching opposite conclusions. Finally, this Comment will reiterate the necessity that the …
Challenges And Opportunities For The Tax Professional Guiding Closely-Held Entities: 2009 & 2010 Regulatory And Judicial Developments Impacting Fourth Circuit Tax Practitioners, Rose L. Bailey
Campbell Law Review
When framing adequate tax advice to protect oneself from preparer penalties under sometimes ambiguous or unsettled tax law, or when trying to affect your best appellate argument or direct a strategic audit litigation path, there can be no doubt of the importance of considering judicial precedent developments in all of these paths. To that end, under the discretion of this Author, a selection of relevant administrative regulations and rulings as well as judicial authority rendered in 2009 through spring 2010 are contained in this Article to cover significant income taxation developments impacting certain closely-held entities. Closely-held entities are considered, for …
Constitutional Protection For Non-Media Defendants: Should There Be A Distinction Between You And Larry King?, Rebecca Phillips
Constitutional Protection For Non-Media Defendants: Should There Be A Distinction Between You And Larry King?, Rebecca Phillips
Campbell Law Review
This Comment considers the current law, contemplates the rapid growth of technology and proposes an answer to the following two questions: Should there be a distinction between media and nonmedia defendants? If so, who should be offered more protection: You or Larry King? To answer these questions, Part I summarizes traditional and current defamation law and the First Amendment protections that have been meted out by the courts. Part II discusses the court decisions that have noted whether a distinction between media and nonmedia defendants is meritorious and critiques those conclusions in light of the development of defamation law. Part …
What Exactly Is A "Substantial Constitutional Question" For Purposes Of Appeal To The North Carolina Supreme Court?, Justice Robert Orr
What Exactly Is A "Substantial Constitutional Question" For Purposes Of Appeal To The North Carolina Supreme Court?, Justice Robert Orr
Campbell Law Review
This Article will examine the history of the statutory right of appeal based upon a substantial constitutional question; highlight the interpretation and application of this provision, particularly over the past five years; provide a look at a few of the cases in which the North Carolina Supreme Court has accepted the notice of appeal ("NOA") based upon a substantial constitutional question or instead has dismissed and not retained; and propose an appropriate test for applying this provision and potential statutory amendments that will better define and more uniformly address the question of what constitutes a substantial constitutional question.
Public Education, Local Authority, And Democracy: The Implied Power Of North Carolina Counties To Impose School Impact Fees, Michael F. Roessler
Public Education, Local Authority, And Democracy: The Implied Power Of North Carolina Counties To Impose School Impact Fees, Michael F. Roessler
Campbell Law Review
This Article examines the authority of counties in North Carolina to impose fees such as those attempted in Durham and Union Counties and concludes, contrary to the decisions of the court of appeals, that counties do have the implied authority under existing law to impose such fees for the purpose of generating school construction revenue. This conclusion is reached not by a mechanistic application of rules of law, but with an application of the law that keeps in mind the aim of the North Carolina Constitution, the state's form of government, and the laws that distribute power to local governments. …
The People Versus Corporate Welfare: North Carolina's Forsaken Opportunity To Reverse Perversion Of The Commerce Clause And To Reinvigorate The Public Purpose Doctrine, Jeanette K. Doran
The People Versus Corporate Welfare: North Carolina's Forsaken Opportunity To Reverse Perversion Of The Commerce Clause And To Reinvigorate The Public Purpose Doctrine, Jeanette K. Doran
Campbell Law Review
This Article neither espouses judicial intervention in any political controversy nor offers "broad" and "sweeping" constitutional theories. Instead, this Article is calculated to recognize the efforts of taxpayers who have resorted to the very constitutional rights afforded to them as citizens and taxpayers to challenge governmental acts which are repugnant to the very foundations of our society and to encourage the judiciary to fulfill its duty to reject legislation which is contrary to the state or federal constitution. As the North Carolina Supreme Court stated in the Great Atlantic & Pacific Tea Co. v. Maxwell case: "The principle of equal …
One Tough Pill To Swallow: A Call To Revise North Carolina's Drug Trafficking Laws Concerning Prescription Painkillers, Evan M. Musselwhite
One Tough Pill To Swallow: A Call To Revise North Carolina's Drug Trafficking Laws Concerning Prescription Painkillers, Evan M. Musselwhite
Campbell Law Review
This Comment takes the position that when the legislature enacted the statute for trafficking in opium or heroin in 1979, it never intended the statute to apply to prescription drugs containing oxycodone and acetaminophen. The statute was enacted during America's "war on drugs," a time when the country was concerned with the rise of illegal street drugs such as heroin, LSD, cocaine, and marijuana, a time when prescription drug abuse was not nearly as prevalent as it is today and twenty years before Percocet was first introduced.
Is It All About The Money? Considering A Multi-Factor Test For Determining The Appropriateness Of Forced Partition Sales In North Carolina, Lawrence Anderson Moye Iv
Is It All About The Money? Considering A Multi-Factor Test For Determining The Appropriateness Of Forced Partition Sales In North Carolina, Lawrence Anderson Moye Iv
Campbell Law Review
This Comment examines partition sales in North Carolina. First is a brief review of tenancy in common ownership and the dissolution remedy of partition. This is followed by a more detailed look into North Carolina's current partition sales statute and recent efforts to amend it. Arguments favoring and opposing the addition of a multi-factor test to the current statute will be discussed, as well as case analysis from three states whose courts consider non-economic factors when determining the appropriateness of ordering a partition sale. The conclusion critiques the arguments for and against the addition of a multi-factor test, and also …
Slavery Jurisprudence On The Supreme Court Of North Carolina, 1828-1858: William Gaston And Thomas Ruffin, Timothy C. Meyer
Slavery Jurisprudence On The Supreme Court Of North Carolina, 1828-1858: William Gaston And Thomas Ruffin, Timothy C. Meyer
Campbell Law Review
In the years preceding the Civil War, two North Carolina Supreme Court Justices, Chief Justice Thomas Ruffin and Associate Justice William Gaston, offered starkly different legal opinions on issues relating to slavery. Despite broad similarities in their backgrounds and their agreement on many other legal and judicial issues, Ruffin and Gaston approached slavery from sharply contrasting perspectives. Both men used their positions on the bench to influence the treatment and legal status of slaves. While Ruffin vigorously defended the peculiar institution and took the concept of chattel to a logical extreme, Gaston denounced many of its dehumanizing elements. In fact, …
Bills Of Attainder And The Formation Of The American Takings Clause At The Founding Of The Republic, Duane L. Ostler
Bills Of Attainder And The Formation Of The American Takings Clause At The Founding Of The Republic, Duane L. Ostler
Campbell Law Review
This Article first addresses takings law generally during the American colonial period as a background to the general understanding of takings at the founding. Next will be a discussion of the thinking of the founders, particularly James Madison, regarding the best ways to protect individual and property rights. The ban on bills of attainder will then be discussed in detail, followed by a review of the purposes and intent of the Fifth Amendment in light of the attainder language. The Article will conclude with a discussion of how the Eleventh Amendment was primarily created as a way to protect the …
Torture And The Interrogation Of Detainees, James P. Terry
Torture And The Interrogation Of Detainees, James P. Terry
Campbell Law Review
Following the September 11, 2001, attack on the United States by al Qaeda, the United States captured a number of "high value" detainees who were believed to have knowledge of imminent terrorist threats against our nation and its allies. CIA operatives, who understood that the use of torture is unlawful under both international and domestic law, and above all, is abhorrent to American values, interrogated the high value detainees. The United States rejects torture as a means to garner information - a fact reflected in our domestic criminal law, but also by the country's signature on the United Nations Convention …
Waving Goodbye To Waiver? Not So Fast: Inadvertent Disclosure, Waiver Of The Attorney-Client Privilege, And Federal Rule Of Evidence 502, Elizabeth King
Waving Goodbye To Waiver? Not So Fast: Inadvertent Disclosure, Waiver Of The Attorney-Client Privilege, And Federal Rule Of Evidence 502, Elizabeth King
Campbell Law Review
Waiver of the attorney-client privilege due to inadvertent disclosure is an important issue that courts and litigants have grappled with for a long time. With electronic discovery becoming increasingly common, and with electronic privilege reviews replacing paper reviews, the issue takes on greater importance. The risk of inadvertently disclosing privileged or protected information is heightened in electronic discovery because of the very nature of electronic information. For example, although a party makes an effort to segregate and delete privileged information from a computer drive prior to producing the electronic documents to the opposing party, the deleted files may still be …
Another "Straightforward Application": The Impact Of Melendez-Diaz On Forensic Testing And Expert Testimony In Controlled Substance Cases, John Wait
Campbell Law Review
Part I of this Article will analyze Melendez-Diaz with a focus on extracting indicators within the opinion that lend guidance as to how the opinion could be extended to Bullcoming and to expert testimony based on forensic reports in controlled substance cases. Part II will provide an overview of the tests utilized by the SBI to determine the nature and quantity, if any, of suspected controlled substances with the goal of ascertaining who, under Melendez-Diaz, should be subject to confrontation. Part III will provide a prediction of the outcome in Bullcoming. Finally, Part IV will review the pending cases from …
Textualist Canons: Cabining Rules Or Predilective Tools, Stephen M. Durden
Textualist Canons: Cabining Rules Or Predilective Tools, Stephen M. Durden
Campbell Law Review
This Article uses canons of construction to demonstrate that textualism, particularly plain language or plain meaning textualism, cannot be applied without the use of non-textual personal choices. But, this Article does not seek to demonstrate that interpreting the Constitution requires ignoring the text of the Constitution; nor does this Article seek to demonstrate that textualist approaches lack relevance or value. Rather, this Article seeks to demonstrate that textualism cannot create rules that avoid personal predilections and does not create neutral principles or eliminate predilective interpretation. In order to accomplish this goal, this Article reviews a variety of canons of construction …
Beyond A Definition: Understanding The Nature Of Void And Voidable Contracts, Jesse A. Schaefer
Beyond A Definition: Understanding The Nature Of Void And Voidable Contracts, Jesse A. Schaefer
Campbell Law Review
This Comment will ... first briefly explore the historical development of the concept of voidness. Second, it will detail the rise of the formalist approach, and will provide some criticism of that approach. Third, it will introduce the legal underpinnings of the functionalist approach. Finally, it will attempt to pull back the layer of legal detritus that has developed on this topic to reveal a workable and practical approach to understanding contract invalidity.
The Meaning Of Just Cause In North Carolina Public Employment Law: Caroll And Its Progeny Provide For A Heightened Multifactor Standard For State Employee Disciplinary Cases, J. Michael Mcguinness
The Meaning Of Just Cause In North Carolina Public Employment Law: Caroll And Its Progeny Provide For A Heightened Multifactor Standard For State Employee Disciplinary Cases, J. Michael Mcguinness
Campbell Law Review
This Article explores the doctrine of just cause in North Carolina public employment law. After a review of the leading North Carolina Supreme Court case of N.C. Department of Environment and Natural Resources v. Carroll and its progeny, this Article examines applicable just cause standards and analytical tests so that the true meaning of just cause can be better understood. Multi-factor tests are applied in order to employ a more objective just cause standard and to avoid unprincipled conclusions not founded upon established criteria.
Rothgery V. Gillespie County: Applying The Supreme Court's Latest Sixth Amendment Jurisprudence To North Carolina Criminal Procedure, Rebecca Yoder
Rothgery V. Gillespie County: Applying The Supreme Court's Latest Sixth Amendment Jurisprudence To North Carolina Criminal Procedure, Rebecca Yoder
Campbell Law Review
Despite the Court's efforts in Rothgery to shore up a "bright-line rule" for attachment based upon prior case law, the contours of the Sixth Amendment right to counsel are still somewhat obscure. To understand the impact of the Court's holding, each state will need to assess its criminal procedure and identify how to reconcile the Court's holding with current practices. This Comment identifies two areas of North Carolina criminal procedure that have been impacted by the Court's holding in Rothgery: (1) the expanded scope of a defendant's protection under the Sixth Amendment during police questioning under Rothgery; and (2) Rothgery's …
How States Can Protect Their Policies In Federal Class Actions, Lucas Watkins
How States Can Protect Their Policies In Federal Class Actions, Lucas Watkins
Campbell Law Review
The role of the states in our constitutional system is to protect their citizens and supply tort liability. Where federal law does not preempt state systems of liability, state law supplies the tort- and contract-based rules that govern the vast majority of the relationships in our society and economy. Some think that national rules of liability, or new national choice-of-law rules, should supplant today's state-by-state regulation. But until Congress enacts a comprehensive regulatory scheme, state law will control the causes of action that plaintiffs can bring. And the state law that controls the cause should control the way that the …