Law Commons^™

Electoral Change And Progressive Prosecutors, Ronald F. Wright, Jeffrey L. Yates, Carissa Byrne Hessick

Faculty Publications

While it is clear that a debate is happening about new approaches to the prosecutor's work, it is less clear how deep the changes go. Given the large number of prosecutor offices in the United States, it is possible that much of the change that the media documents is limited to only a few offices; it is also possible that newsworthy stories of recent prosecutor campaign debates are merely the most visible layer of a change that goes deeper. Do the media accounts focus on vivid but exceptional election campaigns, or do news stories over the' last decade reflect a …

Special Interests In Prosecutor Elections, Carissa Byrne Hessick, Nathan Pinnell

Faculty Publications

While much has been written about money in politics generally, little attention has been paid to money in prosecutor elections specifically. This Symposium Article aims to identify the special interests at play in prosecutor elections. Using an original nationwide dataset of campaign contributions in prosecutor elections, it also seeks to provide insight into the extent of special interests' financial power in those elections.

In accomplishing these two tasks, this Article grapples with the incongruence between ordinary theories of special interests and the office of prosecutor. Most theories have been developed to describe and explain how special interests seek to influence …

Is The Word “Consumer” Biasing Trademark Law?, Dustin Marlan

Faculty Publications

Our trademark law uses the term “consumer” constantly, reflexively, and unconsciously to label the subject of its purpose—the purchasing public. According to the U.S. Supreme Court, trademark law has “a specialized mission: to help consumers identify goods and services they wish to purchase, as well as those they want to avoid.” As one leading commentator puts it, “trademarks are a property of consumers’ minds,” and “the consumer, we are led to believe, is the measure of all things in trademark law.”

Much criticism has been rightly levied against trademark law’s treatment of the consumer as passive, ignorant, and gullible. For …

Reading Magna Carta: Textualist Or Originalist?, John V. Orth

Faculty Publications

Debates concerning the proper method for reading legal texts did not begin in the modern era. In fact, they have been going on in our legal tradition for hundreds of years. One of the oldest, and most consequential, debates concerns the meaning of Magna Carta, the “big charter,” reluctantly granted by King John in 1215 in response to the demands of his rebellious barons. Many of its provisions, called chapters, resolved disputes that quickly became dated – very dated.

Although Magna Carta has by now receded too far into the past for us to be confident of its exact meaning, …

Power Sector Carbon Reduction: An Evaluation Of Policies For North, Kate Konschnik, Martin Ross, Jonas J. Monast, Jennifer Weiss, Gennelle Wilson

Faculty Publications

The North Carolina power sector is poised for transition. Economics have driven big changes on the grid, making cleaner options for electricity generation cost competitive with traditional resources. North Carolina clean energy policies have further enabled the shift into renewable resources. Building on this momentum, Duke Energy Corporation and our state’s rural electric cooperatives have set ambitious climate goals, including “net zero” carbon emissions by 2050.

Well-designed policies can accelerate pollution reduction, make change more affordable for state residents and business, and stimulate job growth. For this reason, the North Carolina Clean Energy Plan (CEP)—developed pursuant to Governor Cooper’s Executive …

Leadership... From A To Z, Anne Klinefelter

Faculty Publications

No abstract provided.

The Fantasy Of The Unchaste Mentality, Tara N. Summerville, Kevin Bennardo

Faculty Publications

For the past forty years, North Carolina’s rape-shield legislation has served as a laboratory of experimentation. Like the rape-shield legislation of every state, it generally prevents the admission of complaining witnesses’ past sexual history in sexual assault prosecutions. However, North Carolina’s rape-shield rule contains a unique exception not found elsewhere in the country. The exception, which we label the “fantasy exception,” permits the admission of a complaining witness’s past sexual behavior when it is offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the charged assault.

This Article is the first to rigorously …

Ratemaking As Climate Adaptation Governance, Jonas J. Monast

Faculty Publications

Electric utilities are directly affected by, and in some cases are a source of, many pressing climate adaptation challenges: wildfires, vulnerable infrastructure, extreme storms, and drought. The state Public Utilities Commission (PUC) is one of the most consequential government agencies guiding the electricity sector’s response to climate change. Rate-regulated utilities may not charge ratepayers for new capital investments without PUC approval. When PUCs decide which costs are eligible for rate recovery, they also define which risks utilities seek to manage and which hedging strategies they use to do so. This Article argues that the foundational principles of ratemaking allow the …

No Amendment? No Problem: Judges, "Informal Amendment," And The Evolution Of Constitutional Meaning In The Federal Democracies Of Australia, Canada, India, And The United States, John V. Orth, John Gava, Arvind P. Bhanu, Paul T. Babie

Faculty Publications

This article considers the way in which judges play a significant role in developing the meaning of a constitution through the exercise of interpretive choices that have the effect of “informally amending” the text. We demonstrate this by examining four written federal democratic constitutions: those of the United States, the first written federal democratic constitution; India, the federal constitution of the largest democracy on earth; and the constitutions of Canada and Australia, both federal and democratic, but emerging from the English unwritten tradition. We divide our consideration of these constitutions into two ideal types, identified by Bruce Ackerman: the “revolutionary” …

When Therapy Goes Public: Copyright Gatekeepers And Sharing Therapeutic Artifacts On Social Media, Amanda Reid, Pablo Miño

Faculty Publications

No abstract provided.

Enforcing Inbound Forum Selection Clauses In State Court, John F. Coyle, Katherine Richardson

Faculty Publications

A forum selection clause is a contractual provision that selects a court for future disputes. Such clauses serve two primary functions. First, they may be used to redirect litigation from one state to another (an “outbound” clause). Second, they may be used to extend the personal jurisdiction of the chosen court over the contracting parties (an “inbound” clause). To date, scholars have focused most of their attention on the redirecting function played by outbound clauses. In this Article, we provide a definitive account of the role played by inbound clauses as means of obtaining personal jurisdiction over out-of-state defendants.

This …

Corporate And Securities Law Impact On Social Responsibility And Corporate Purpose, Thomas Lee Hazen

Faculty Publications

The role of social responsibility in corporate governance has been the subject of debate for nearly ninety years. That debate has been reframed over the decades. Several recent events have resulted in increased focus on corporate so-cial responsibility, especially with respect to publicly held corporations. This Ar-ticle explores the law’s two different paths for impacting social responsibility. The current iteration of the corporate responsibility movement has implications for both state law chartering of corporations and federal securities regulation. This Article analyzes the ways in which stated purpose clauses in a corporation’s articles of incorporation may be useful in addressing social …

Shocking Business Bankruptcy Law, Melissa B. Jacoby

Faculty Publications

The intersection of major crises and financial distress generates no shortage of stock stories. This Essay offers one more: how shocks can be used opportunistically in big Chapter 11 cases to unravel bankruptcy law, and to shift the system further away from the objective of responding to overindebtedness.

Piercing The (Sovereign) Veil, W. Mark C. Weidemaier

Faculty Publications

Sovereign nations own more than ten percent of the world's largest firms and use these ownership stakes to pursue economic, social, and political objectives unrelated to profit maximization. Sovereign nations also have unique powers and attributes that ordinary owners lack. Sovereigns do not need an owner's control rights to direct entity behavior; they have the power to regulate. Sovereigns do not need an owner's economic rights to extract value; they have the power to tax. And sovereigns do not need to hide behind the principle of limited liability, which protects owners of limited liability entities; they have sovereign immunity in …

The Final Act -- Deportation By Ice Air, Deborah M. Weissman, Angelina Godoy, Havan Clark

Faculty Publications

Deportation is a legal concept about which much has been written. But it is more complicated. For noncitizens, forced expulsion is a lived experience occurring in time and space — an act against the body, mostly black and brown bodies. In this Article, we part ways with the well-established narratives of deportation and the punishment/non-punishment paradigm to conceive of deportation not only as a legal concept, but as a physical act — the final act — that is, the culmination of the immigration enforcement dragnet. The physical removal of persons from the United States requires a complex system comprised of …

Debt, Doubt, And Dreams: Understanding The Latino College Completion Gap, Kate Sablosky Elengold, Jess Dorrance, Robert Agans, Amanda Martinez, Patricia Foxen

Faculty Publications

We surveyed individuals who had matriculated to, but never completed, at least one college program (community college, college, university, trade school, or certificate program). With a survey sample of more than 1,500 respondents, 35 percent of whom self-identified as Latino* (Latino = 522; non-Latino = 985), we gathered critical information about the most salient barriers to college completion, especially those that disproportionately burden Latino students. Based on prior literature and research, we paid particular attention to the relationship between debt, attitudes about debt, and college completion. We organized the barriers to college completion into four categories: precollege, institutional, environmental, and …

Treating Professionals Professionally: Requiring Security Of Position For All Skills-Focused Faculty Under Aba Accreditation Standard 405(C) And Eliminating 405(D), J. Lyn Entrikin, Lucy Jewel, Susie Salmon, Craig T. Smith, Kristen K. Tiscoine, Melissa H. Weresh

Faculty Publications

No abstract provided.

The Value Of An Academic Law Library In The 21st Century, Anne Klinefelter

Faculty Publications

Law school deans and university provosts may ask how law libraries can deliver value as new technologies, practices, and economic pressures inspire reassessment of legal education and of higher education more generally. The proliferation of information delivery systems, trends towards centralized management of higher education infrastructure, and changes in the law practice market suggest that the traditional law library may not meet current needs. But law libraries have the potential and opportunity to deliver strong value in this environment due largely to the sophistication of today's law librarians. The law library can be a center for expertise that can advance …

The Paradox Of Automation As Anti-Bias Intervention, Ifeoma Ajunwa

Faculty Publications

A received wisdom is that automated decision-making serves as an anti-bias intervention. The conceit is that removing humans from the decision-making process will also eliminate human bias. The paradox, however, is that in some instances, automated decision-making has served to replicate and amplify bias. With a case study of the algorithmic capture of hiring as a heuristic device, this Article provides a taxonomy of problematic features associated with algorithmic decision-making as anti-bias intervention and argues that those features are at odds with the fundamental principle of equal opportunity in employment. To examine these problematic features within the context of algorithmic …

Protecting The Role Of The Press In Times Of Crisis, Mary-Rose Papandrea

Faculty Publications

Part I of this Article will discuss defamation law with a focus on the Court’s decision in New York Times Co. v. Sullivan. This decision “constitutionalized” the common law tort of defamation and dealt a death blow to a series of lawsuits by southern government officials aimed at silencing the publication.14 The decision has since provided an essential foundation for press freedom for over fifty years. At the same time, because the decision did not grant the press (or the public generally) absolute immunity for the publication of defamatory information about matters of public concern, speakers potentially face years …

Legal Writing's Harmful Psyche, Kevin Bennardo

Faculty Publications

This essay proceeds in four parts. It first supports the descriptive claim that many in the legal writing discipline perceive themselves as victims of unfair treatment within legal academia. Second, it explores the consequences of that self-perception, including the norm of protectionism that has developed within the discipline. The narrative that legal writing professors are mistreated by those outside the discipline has resulted in an internal culture in which many members of the discipline support their own no matter what.

Third, the essay explores how such protectionism is harmful to the development of the legal writing discipline. An academic discipline …

Internet Service Provider Liability For Disseminating False Information About Voting Requirments And Procedures, William P. Marshall

Faculty Publications

This Article will examine the constitutionality of deceptive campaign practices acts under the First Amendment. It will also take the analysis one step further by analyzing whether Internet service providers may be held liable for the deceptive campaign messages posted by their customers and users, similar to the way that providers can be held liable for instances of copyright infringement posted by their customers and users.

Legal Calculators And The Tax System, Joshua D. Blank, Leigh Z. Osofsky

Faculty Publications

Legal calculators often embody a characteristic that can be termed “simplexity.” As we have theorized, simplexity occurs when the government presents clear and simple explanations of the law without highlighting its underlying complexity or reducing this complexity through formal legal changes. In earlier work, we have argued that some elements of IRS publications (plain language summaries of the law for the general public) present contested tax law as clear tax rules, add administrative gloss to the tax law, and fail to fully explain the tax law.

In this Article, we show that simplexity also occurs when the government offers legal …

The First Anti-Sanctuary Law: Proposition 187 And The Transformation Of Immigration Enforcement, Rick Su

Faculty Publications

Anti-sanctuary efforts are sweeping the country, as the federal government and a growing number of states impose stringent restrictions on the ability of cities and other localities to limit their involvement in federal immigration enforcement. Many are now wondering how far this movement will go. But where and how did this movement begin? This Essay argues that the roots of the contemporary anti-sanctuary movement can be traced to Proposition 187, a ballot initiative adopted by California voters in 1994. As the nation’s first anti-sanctuary law, Proposition 187 established the basic provisions featured in nearly every anti-sanctuary measure enacted since. Moreover, …

Korematzu, Hirabayashi, And The Second Monster, Eric L. Muller

Faculty Publications

It is a trope at least as old as Beowulf: the unexpected second monster. Beowulf arrives in Heorot to take on Grendel, the demon who has been terrorizing the Ring-Danes’ mead-hall. He bests the monster in battle and Grendel slinks off, one-armed and bloodied, to die. The Ring-Danes honor Beowulf with a great banquet; he has slaughtered their nemesis and there is much to celebrate. Full of mead and a newfound sense of safety, the revelers drift off to sleep. That is when a terrible new monster bursts upon the scene—Grendel’s mother, the beast that brought Grendel into the …

Picking Prosecutors, Carissa Byrne Hessick, Michael Morse

Faculty Publications

The conventional academic wisdom is that prosecutor elections are little more than empty exercises. Using a new, national survey of local prosecutor elections — the first of its kind — this Article offers a more complete account of the legal and empirical landscape. It confirms that incumbents are rarely contested and almost always win. But it moves beyond extant work to consider the nature of local political conflict, including how often local prosecutors face any contestation or any degree of competition. It also demonstrates a significant difference in the degree of incumbent entrenchment based on time in office. Most importantly, …

Agency Legislative Fixes, Leigh Z. Osofsky

Faculty Publications

Legislative drafting mistakes can upset statutory schemes. The Affordable Care Act was nearly undone by such mistakes. The recent Tax Cuts and Jobs Act is rife with them. Traditional legal scholarship has examined whether courts should help resolve Congress’ mistakes. But courts have remained stubbornly resistant to implementing fixes.

In the face of legislative error and judicial inaction, administrative agencies have taken it upon themselves to fix legislative drafting mistakes.

This Article provides the first comprehensive analysis of these “agency legislative fixes.” It identifies features and complexities of such fixes that existing scholarship does not capture. It also describes the …

Identity: Obstacles And Openings, Osamudia James

Faculty Publications

No abstract provided.

Forcing Judges To Criminalize Poverty In North Carolina, Gene R. Nichol

Faculty Publications

No abstract provided.

Future Work, Jeffrey M. Hirsch

Faculty Publications

The Industrial Revolution. The Digital Age. These revolutions radi-cally altered the workplace and society. We may be on the cusp of a new era -- one that will rival or even surpass these historical disruptions. Technology such as artificial intelligence, robotics, virtual reality, and cutting-edge monitoring devices are developing at a rapid pace. These technologies have already begun to infiltrate the workplace and will continue to do so at ever increasing speed and breadth.

This Article addresses the impact of these emerging technologies on the workplace of the present and the future. Drawing upon interviews with leading technologists, the Article …