Issue 1 · December 2010

Eugene Gressman: In Memoriam

By John Charles Boger

Eugene Gressman, William Rand Kenan, Jr. Professor of Law Emeritus and one of the nation’s leading authorities on appellate practice and the Supreme Court, died on January 23, 2010, in Chapel Hill at age ninety-two, after several years of declining health. One of the most prolific and distinguished scholars in the University of North Carolina School of Law’s long history, Gene was known by his colleagues for his indefatigable energy… READ MORE

89 N.C. L. Rev. 1 (2010)

Daniel H. Pollitt: In Memorium

By John Charles Boger

Daniel Hubbard Pollitt, Graham Kenan Professor of Law Emeritus at the University of North Carolina at Chapel Hill and one of the most extraordinary figures in the life and history of the UNC School of Law, died on March 5, 2010 at age eighty-eight. His death came amid a season of great loss at the law school. Two of Dan’s oldest law faculty friends, Sally Sharp and Gene Gressman, had… READ MORE

89 N.C. L. Rev. 9 (2010)

Memorial to Bob Byrd

By Kenneth S. Broun

In April, 2010, the University of North Carolina School of Law lost one of the finest teachers and most valued colleagues in its long history. Robert G. “Bob” Byrd was a productive, distinguished member of our faculty for forty-five years. In addition to his superb teaching, scholarship and service to the state of North Carolina and the University, he led this law school for five critical years as its dean… READ MORE

89 N.C. L. Rev. 19 (2010)

Branch Office of the Prosecutor: The New Role of the Corporation in Business Crime Prosecutions

By Harry First

This Article describes the evolution of the public corporation’s role in the criminal justice process—from potential defendant to “branch office of the prosecutor,” partnering with the government in investigating business crime—and assesses the impact of this evolution on criminal justice policy. The first part of the Article describes the branch-office role, tracing its development back to the 1970s, and shows how it has come to be routine for public corporations… READ MORE

89 N.C. L. Rev. 23 (2010)

It’s All About the Principal: Preserving Consumers’ Right of Rescission Under the Truth in Lending Act

By Lea Krivinskas Shepard

This Article explores a significant market-based threat to the Truth in Lending Act’s (TILA) right of rescission, a remedy that attempts to deter lender overreaching and fraud during one of the most complex financial transactions of a consumer’s lifetime. The depressed housing market has substantially impaired many borrowers’ ability to fulfill their responsibilities in rescission’s unwinding process: restoring the lender to the status quo ante by repaying the net loan… READ MORE

89 N.C. L. Rev. 171 (2010)

Setting the “Bar” in North Carolina Medical Malpractice Litigation: Working With the Standard that Everyone Loves to Hate

By Casey Caroline Hyman

In January 2008, the Supreme Court of North Carolina was poised to review two medical malpractice cases, O’Mara v. Wake Forest University Health Sciences and Crocker v. Roethling. The court was reviewing each case on the issue of whether an expert witness was appropriately qualified to testify on the relevant standard of care required of the defendant-physician. These cases epitomized the confusion surrounding the North Carolina requirement that expert witness… READ MORE

89 N.C. L. Rev. 234 (2010)

Equitable Uniformity: Finding a Workable Solution to the (Non) Application of Issue Preclusion to Patent Claim Construction

By Daniel R. Rose

In the midst of the Monica Lewinsky scandal surrounding President Clinton’s impeachment, the media made much of his statement calling into question the definition of one of the most basic words in the English language. In fact, the exact meaning of the word was critical in determining whether the President had perjured himself before a grand jury. While questions about the meaning of a single word in presidential speech are… READ MORE

89 N.C. L. Rev. 274 (2010)

Passive Virtues Versus Aggressive Litigants: The Prudence of Avoiding a Constitutional Decision in Snyder v. Phelps

By Jonathan S. Carter

In his seminal work on the functions of the federal judiciary, Alexander M. Bickel advocated what he called the “passive virtues” of judicial restraint and the avoidance of unnecessary constitutional decision-making. The avoidance doctrine is a prudential principle that instructs federal courts to refrain from ruling on a constitutional issue if non-constitutional grounds exist to dispose of the case. Justifications for the doctrine are many, but often center on the… READ MORE

89 N.C. L. Rev. 326 (2010)

Simplifying the Analysis: The Second Circuit Lays Out a Straightforward Theory of Fraud in SEC v. Dorozhko

By Sean F. Doyle

The conditions that led to the adoption of section 10(b) of the Securities Exchange Act of 1934 are eerily evocative of the atmosphere currently plaguing the national economy. Since 2008 the United States has suffered through a stock market crash, an economic downturn, and a loss of investor confidence–all market conditions that starkly mirror the events originally driving the enactment of section 10(b), a statute designed “to insure honest securities… READ MORE

89 N.C. L. Rev. 357 (2010)