Law Commons^™

Vaccine Passports And The Right To Exclude: How The Court’S Holding In Cedar Point Nursery V. Hassid Could Light Fire To The Debate On The Constitutionality Of Vaccine Passport Requirements And Bans, John A. Kuzora

Campbell Law Review

The COVID-19 pandemic gave America its biggest health crisis in the last one hundred years. In efforts to resolve this crisis, several state governments have issued various types of public health measures. Three of these measures are Vaccine Mandates, Vaccine Passport Requirements, and Vaccine Passport Bans. This Comment explores the legality of these three public health measures through the unique lens of the Fifth Amendment Takings Clause. Specifically, this Comment focuses on how both Vaccine Passport Requirements and Bans infringe on property owners’ rights to include and exclude unvaccinated patrons. This, in turn, results in a physical taking under the …

The First Congressional Debate On Public Carry And What It Tells Us About Firearm Regionalism, Mark Anthony Frassetto

Campbell Law Review

In the aftermath of District of Columbia v. Heller, a prominent issue remains unresolved: whether, or to what extent, the Second Amendment protects an individual right to keep and bear arms outside of the home. This Article explores this unresolved issue through a newly uncovered source, the congressional debates surrounding the District of Columbia's public carry law in the 1890s.

These debates provide new insights into the understanding of the right to keep and bear arms in the years following the drafting and ratification of the Fourteenth Amendment. Two conclusions can be drawn from the debate. First, there was no …

Between Liberalism And Theocracy, John D. Inazu

Campbell Law Review

Our symposium conveners have focused us on "the relationship between liberalism and Christianity and their influence on American constitutionalism."' My objective is to complicate the relationship and reorient the influence. The focus of my inquiry is the liberty of conscience and its implications for navigating the relationship between church and state.' By approaching these issues through the lens of political theology (as distinct from either political or constitutional theory), I hope to show that some of the most significant embodiments of conscience in the American colonies can neither be squared with an individualistic liberalism (as some on the left are …

Is Constitutionalism Liberal?, Bruce P. Frohnen

Campbell Law Review

Let me begin with the obvious: I am not claiming that any scholar, or educated person, believes that the only constitutions that have ever existed have been liberal. Everyone knows or should know that, for example, the Greek constitutions of Solon, Lycurgus, and others discussed in Aristotle's Politics predate liberalism by many centuries.' Moreover, constitutions come in a wide variety of forms, and many of these, whether written or unwritten, have explicitly been illiberal. What I maintain is that there is a prejudice among lawyers in particular that constitutions must be liberal in order to be worthy of the name. …

"Causing The Blood To Flow Where I Touched Him" - Liberalism, Constitutionalism, Christianity, And The "War" At Covey Farm, Anthony V. Baker

Campbell Law Review

I will begin my critique by going directly to the source here, the famous Philadelphia Constitutional Convention of 1787, and ask us to look somewhat carefully at the work of the "founders" there, in considering the ultimate integrity of the product they fashioned and the world they "created." That they gave us a classical liberal wonder, with tenets of that philosophy writ large in government for the very first time, is undeniable, though it will be submitted that they gave us "something else" as well. It is right for us then to explore that "something else," not abstractly, through ideas, …

Enlightenment Liberalism, Lawyers, And The Future Of Lawyer-Client Relations, Robert F. Cochran Jr.

Campbell Law Review

I am going to address, from a Christian perspective, liberalism's relationship to the role and responsibility of the lawyer. Whether a United States lawyer could define Enlightenment liberalism or not, it is likely that the role he or she plays as an attorney every day was in large part shaped by liberalism's focus on individual autonomy. At the request of the conference organizers, I am also going to reflect on the future of lawyerclient relations.

Is Modern Legal Liberalism Still Compatible With Free Exercise Of Religion?, Donald R. Mcconnell

Campbell Law Review

Classic liberal legal thought has clearly been shaped by the influence of Christianity. But in recent years, the movement, like ancient Gnosticism, has some Christian elements, but has become a decidedly anti-Christian force in the courts. This comparison tracks well with the analysis of other parallel modern intellectual movements by the political scientist Eric Voegelin. It is also supported by current events such as the recent Federal District Court opinion by Chief Judge Vaughn Walker in Perry v. Schwartzenegger. Liberalism has transformed from an attempt at neutrality, to an established religion that not only promotes its own perverse version of …

Were The Framers - And The Writers Who Influenced Them - Unable To Foresee The Extent Of Secularization That Could Result From The Separation Of Church And State?, Teresa M. Blake

Campbell Law Review

While the United States is filled with religious sects, denominations, worshippers, and even fanatics, the truth is that American society has become largely secular.' When analyzing society's trend toward secularization from a legal perspective, it is only natural to begin with the Establishment Clause of the First Amendment 2-the clause responsible for the separation of church and state. But is today's secular society really the brainchild of the Framers of the Constitution? Or is it an unintended result that was far beyond their realm of foreseeability? This Comment addresses these questions by surveying the writings of several influential Constitutional Framers. …

Secular Not Secularist America, Michael Scaperlanda

Campbell Law Review

Other contributors to this symposium see "liberalism"' as the problem and "God" as the solution.' To a large extent, Ithink they have it backwards. "God" is the problem to which "liberalism" provides a particularly creative solution. Power hates a rival,' and God - or allegiance to an all-embracing monotheistic God - poses a significant threat to power because the wild faith of the martyr cannot be tamed by civil authority.

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

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 …

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 …

The Hidden Dichotomy In The Law Of Morality, Justin P. Nichols

Campbell Law Review

This Comment will begin by exploring the dichotomy itself, and then carefully distinguishing civil and religious morality. The analysis will then examine Lawrence and clarify how the opinion affected the dichotomy. Next, this Comment will apply the post-Lawrence understanding of the rational basis test to several issues of concern raised by opponents of the decision. Finally, this Comment will speculate as to the possible implications of Lawrence for moral issues lying on the horizon.

A Primer On North Carolina And Federal Use Of Force Law: Trends In Fourth Amendment Doctrine, Qualified Immunity, And State Law Issues, J. Michael Mcguinness

Campbell Law Review

This Article analyzes recent trends and updates the status of use of force law under North Carolina and federal standards.

No Notice, No Hearing, No Problem? The Constitutionality Of North Carolina's Prejudgment Statute, Jason A. Jennings

Campbell Law Review

Accordingly, this Comment will analyze the constitutionality of North Carolina's prejudgment statutes. Part I will take a brief look at the history of prejudgment statutes and the "power" doctrine articulated by the United States Supreme Court in Pennoyer v. Neff. Part II will discuss the impact of subsequent Supreme Court cases.

In Vino Veritas: Does The Twenty-First Amendment Really Protect A State's Right To Regulate Alcohol? An Overview Of The North Carolina Wine Industry And The Continuing Wine Distribution Litigation, Christian Hart Staples

Campbell Law Review

The purpose of this Comment is to examine some important legal issues affecting the state's winemaking industry. In particular, this Comment will address the continuing litigation that the direct shipment of wine to consumers has spawned throughout the country, and the effect of the Twenty-first Amendment on states' rights to control their own alcohol regulatory schemes. The author also hopes that this Comment will spark more interest in North Carolina wine.

"Necessity Hath No Law": Executive Power And The Posse Comitatus Act, Candidus Dougherty

Campbell Law Review

In Part I, I catalog the historical context in which the PCA was passed and describe the military events that are most commonly used to support the case for sharply divided civilian and military authorities. In Part II, I discuss the true purpose and intent of the PCA: to prohibit civilian marshals from calling forth active duty military to enforce domestic law. I also explore the contours of the emergency power doctrine to show that it is not clear that Congress could limit Executive action as a revamped PCA may attempt to do. Lastly, in Part III, I examine whether …

Settlement Agreements Are Favored Under North Carolina Law... Or So We Thought: Problems With The Court Of Appeals' New Approach Allowing County Governments To Invalidate An Otherwise Binding Settlement Agreement Using North Carolina General Statute Section 159-28, Ryan C. Aul

Campbell Law Review

This comment first examines the established law of settlement agreements in North Carolina, specifically relating to how such agreements are favored under the law, general enforcement of these agreements, and special rules concerning counties and municipalities. Second, it focuses on the requirements for a pre-audit certification under North Carolina General Statute section 159-28(a), the perplexing judicial interpretation of this statute by the North Carolina Court of Appeals, and the resulting inequitable status of the law that treats settlement agreements with county and municipal governments on a different playing field than those with a private entity. Finally, a proposal is offered …

The Difficult Task Of Model Rule Of Professional Conduct 3.6: Balancing The Free Speech Rights Of Lawyers, The Sixth Amendment Rights Of Criminal Defendants, And Society's Right To The Fair Administration Of Justice, Mattei Radu

Campbell Law Review

This article will begin with a review of trial publicity rules from the earliest efforts to curb harmful statements of lawyers during trials to the promulgation of Model Rule 3.6 in 1983 by the American Bar Association. It will then examine Gentile, the main Supreme Court case in this area. The article will next consider the 1994 and 2002 amendments to Model Rule 3.6, which were inspired in part by the Court's ruling in Gentile. It will also look specifically at the trial publicity situation in North Carolina, where Durham District Attorney Michael B. Nifong has been charged with violating …

Avoidance Strategy: Same-Sex Marriage Litigation And The Federal Courts, William C. Duncan

Campbell Law Review

This brief article examines the strategy of avoiding federal court review and federal constitutional claims for same-sex marriage. It first surveys the history of same-sex marriage litigation in the federal courts. It then turns to the question of why federal courts and claims have been avoided, identifying the most obvious explanation - a conscious strategic aim. The conclusions discussed in that section are exemplified in recent litigation in the Ninth Circuit. The article concludes with some comments on the policy implications of the strategy it describes.

"Inevitable Inequities:" The Public Duty Doctrine And Sovereign Immunity In North Carolina, G. Braxton Price

Campbell Law Review

This comment first examines the muddled past of the application of the public duty doctrine by the Court of Appeals and the Supreme Court of North Carolina with the aim of showing that it is unworkable, confusing, and unjust. Second, it suggests the Supreme Court of North Carolina should completely abrogate the public duty doctrine in deference to the legislature's intent to waive sovereign immunity to the extent it has done so in the Tort Claims Act. Finally, in its stead, an alternative approach is offered. The North Carolina Supreme Court should adopt a traditional negligence standard of reasonable care …

A Morass Of Confusion And Inconsistency: The Application Of The Doctrine Of Nullum Tempus Occurrit Regi In North Carolina, Thomas R. Young

Campbell Law Review

Given the courts' and legislature's desire to maintain the doctrine of nullum tempus, the need for guiding principles of application is great. This article seeks to piece together the disparate guiding principles the courts have articulated regarding the nullum tempus doctrine from its initial introduction in North Carolina to the present time. Secondarily, the article will explore the case for modification of the current interpretation of the doctrine so as to provide a more uniform and consistent application to governmental actions. In so doing, an inquiry will be made into the approach other jurisdictions upholding nullum tempus take toward applying …

Aid And Comfort: Rasul V. Bush And The Separation Of Powers Doctrine In Wartime, Ryan Mckaig

Campbell Law Review

By failing to recognize the challenges facing political and military leaders in the wake of the September 11, 2001 attacks, in reversing fifty-four years of precedent relied upon by the executive branch, and in failing to consider the political question doctrine, the Supreme Court in Rasul charted a dangerous constitutional course that could lead to greater judicial involvement in war-making powers and greater levels of conflict among the three branches. These trends will ultimately threaten the nation's ability to fight and win future wars. The decision is ill-advised, ill-timed, and invites unintended consequences.

The Rising Tide Of North Carolina Constitutional Protection In The New Millennium, J. Michael Mcguinness

Campbell Law Review

This article outlines a number of recent developments in North Carolina constitutional law, focusing primarily upon the most common areas where individuals need protection from abusive government power. Recent cases have demonstrated the growth and abuse of government power in North Carolina, from the smallest municipalities to the massive North Carolina state government bureaucracy. State constitutional checks and balances are necessary.

The Constitutional Floor Doctrine And The Right To A Speedy Trial, Darren Allen

Campbell Law Review

This article will begin with a quick description of the historical origins of the speedy trial right and the events marking its quiet evolution into a hallmark of our criminal justice system. It will then move into a discussion of the decisions articulating principles of new federalism which require that state courts defer to the federal interpretations of fundamental rights, before discussing of the controlling Supreme Court cases fashioning the test by which violations of the right are measured. Next, this article will showcase the critical differences between Spivey and Barker to demonstrate why North Carolina's speedy trial test intrudes …

The Irrational Use Of Rational Basis Review In Lawrence V. Texas: Implications For Our Society, Susan Austin Blazier

Campbell Law Review

This article ... will begin by relaying the facts and background of the Lawrence case. Next, it will discuss the Court's decision in Bowers v. Hardwick and explore the constitutional law foundations for the Court's traditional reasoning as displayed in Bowers. The article will then turn to the Court's analysis of Lawrence. Finally, it will address the potential far-reaching implications of the Lawrence decision in the realm of constitutional law.

"Don't Bother Knockin' ... Come On In!:" The Constitutionality Of Warrantless Searches As A Condition Of Probation, Matthew S. Roberson

Campbell Law Review

This note will examine the Supreme Court's decision in United States v. Knights. Part II presents factual background and the basis for the district court's decision to suppress evidence seized during the search of Knight's home, as well as the Ninth Circuit's affirming opinion. The note then presents the Supreme Court's analysis and reasoning for reversing the lower court. Part III discusses the jurisprudence leading to the Court's decision and part IV addresses the impact of the Court's decision.

Rule 9(J) - Is Requiring A Plaintiff In A Medical Malpractice Action To Certify His Or Her Claim Before Filing Unconstitutional? - The Issue In Anderson V. Assimos, Levonda Wood

Campbell Law Review

This note will examine the North Carolina Court of Appeals' decision in Anderson v. Assimos. Part II of the note presents the factual background, the issue raised, and the holding in the Anderson decision. Part III analyzes the decision and discusses why the court's holding is correct. This note concludes that the North Carolina Supreme Court should hold that Rule 9(j) unconstitutionally infringes upon rights guaranteed by both the federal and state constitutions if asked to addresses the issue in the future.

Loose Lips Won't Sink Ships: Federal Education Rights To Privacy Act After Gonzaga V. Doe, D. Martin Warf

Campbell Law Review

No abstract provided.

Making Specimen Cups As Normal As Prom Night: The Implications Of Board Of Education V. Earls On Public Schools Across The Nation, Caroline Slater Burnette

Campbell Law Review

No abstract provided.