Issue 5

Introduction to the North Carolina Law Review Symposium, Adaptation and Resiliency in Legal Systems

By Maria Savasta-Kennedy

In October 2010, a group of scholars from diverse legal fields gathered at the University of North Carolina School of Law in Chapel Hill, North Carolina, to talk about the shock waves of recent events hitting the environment, financial markets, and the criminal justice system, and to consider how the law can make these systems better able to deal with unanticipated challenges. The symposium discussion, and the resulting articles presented… READ MORE

89 N.C. L. Rev. 1365 (2011)

General Design Principles for Resilience and Adaptive Capacity in Legal Systems – With Applications to Climate Change Adaptation

By J.B. Ruhl

As climate change begins to disrupt the settled expectations of humans, demands on the legal system will be intense and long term. Is the law up to the task? If it is, it will be at least in part because the legal system proves to be resilient and adaptive. This Article therefore explores how to think about designing legal instruments and institutions now with confidence they will be resilient and… READ MORE

89 N.C. L. Rev. 1373 (2011)

Transforming the Means and Ends of Natural Resource Management

By Alejandro E. Camacho

This Article considers how prominent goals of natural resources law and the prevailing model of regulatory decision making combine to limit the capacity of natural resources governance to manage the effects of climate change. The Article explores the implications of continuing to rely on conventionally static and fragmented decision making, passive management, and historical preservation when global climatic shifts are widely expected to lead to rapid changes in ecological systems… READ MORE

89 N.C. L. Rev. 1405 (2011)

Adaptive Management as an Information Problem

By Holly Doremus

Enthusiasm for adaptive management has outrun evaluation of its usefulness as a natural resource management tool. Policymakers routinely endorse, and frequently require, it. Managers and academic observers alike have tended to assume that adaptive management is uniformly the best strategy. Little has been said, particularly in the policy literature, about how to decide whether an adaptive management approach makes sense. Looking at adaptive management as an information problem, this Article… READ MORE

89 N.C. L. Rev. 1455 (2011)

Adaptation, Legal Resiliency, and the U.S. Army Corps of Engineers: Managing Water Supply in a Climate-Altered World

By Victor B. Flatt & Jeremy M. Tarr

There are existing legal systems that embody planned resiliency. One of these is the “multiple-use” paradigm, which instructs resource managers to manage resources to maximize their multiple uses. Despite this built-in resiliency, the agencies charged with such management have not been able to translate this resiliency into practice. One of these agencies, the United States Army Corps of Engineers, is charged with managing water storage throughout much of the United… READ MORE

89 N.C. L. Rev. 1499 (2011)

Resiliency, Adaptation, and the Upsides of Ex Post Lawmaking

By Donald T. Hornstein

Although the U.S. Constitution and the constitutions of many states and foreign countries properly prohibit ex post facto lawmaking in the criminal context, the practice takes place quite regularly in other settings. This Essay argues that there are numerous reasons for this phenomenon, including the need for a resilient legal system to be able to respond to those who game the law through practices known as “regulatory arbitrage.”  

89 N.C. L. Rev. 1549 (2011)

Adaption and Resilience in Global Financing Regulation

By Douglas W. Arner

The global credit crisis of 2008 demonstrated beyond any doubt that preexisting international arrangements were insufficient to preserve stability in the global financial system, resulting in the most serious global economic and financial crisis since the Great Depression. This Article examines the agenda being pursued through the Group of 20 (G-20), the Financial Stability Board (FSB), and related organizations to reform international financial regulation in the wake of the global… READ MORE

89 N.C. L. Rev. 1579 (2011)

Regulatory Contrarians

By Brett McDonnell & Daniel Schwarcz

This Article explores the role that “regulatory contrarians” can play in promoting more adaptive financial regulation. Such contrarians have several distinguishing features. First, they possess persuasive authority by virtue of their position, access to media and officials, or speaking engagements and reports. Second, they are affiliated with, and enjoy privileged access to, a regulatory entity but are nonetheless independent, as reflected in their budget, staffing, and/or priorities. Finally, they are… READ MORE

89 N.C. L. Rev. 1629 (2011)

From Gramm-Leach-Bliley to Dodd-Frank: Unfulfilled Promise of Section 23A of the Federal Reserve Act

By Saule T. Omarova

This Article examines the recent history and implementation of one of the central provisions in U.S. banking law, section 23A of the Federal Reserve Act. Enacted in 1933 in response to one of the perceived causes of the Great Depression, section 23A imposes quantitative limitations on certain extensions of credit and other transactions between a bank and its affiliates that expose a bank to an affiliate’s credit or investment risk,… READ MORE

89 N.C. L. Rev. 1683 (2011)

Requiem for a Regulator: The Office of Thrift Supervision’s Performance During the Financial Crisis

By Dain C. Donelson & David Zaring

We evaluate evidence reflecting the stability of our multi-regulator, charter competitive system of financial regulation during the financial crisis. Specifically, we compare thrifts to banks, charter-switchers to other thrifts and banks, and bailout recipients to non-bailout recipients to discover if any of these institutions did poorly when compared to their peers during the financial crisis. First, we compare publicly traded thrifts to publicly traded banks during 2008—the critical year of… READ MORE

89 N.C. L. Rev. 1777 (2011)

The Federal Common Law Crime of Corruption

By Lisa Kern Griffin

This contribution to the North Carolina Law Review’s 2010 symposium, Adaptation and Resiliency in Legal Systems, considers the compatibility between the common law nature of honest services fraud and the dynamic quality of public integrity offenses. Corruption enforcement became a focal point of recent debates about overcriminalization because it typifies expansive legislative mandates for prosecutors and implicit delegations to courts. Federal prosecutions of political corruption have relied primarily on an… READ MORE

89 N.C. L. Rev. 1815 (2011)

Complex Times Don’t Call for Complex Crimes

By Richard E. Myers II

This Essay argues that the rise of the administrative state has led to an overabundance of criminally enforceable regulations, so many in fact that the law has become in many ways unknowable. At the same time, a large portion of criminal lawmaking has moved away from the politically accountable legislature and into the “expert” agencies. The combination of inscrutability and lack of accountability has led to a corresponding loss in… READ MORE

89 N.C. L. Rev. 1849 (2011)