Issue 4

The Not-So-Extraordinary Case of Aikens v. Ingram: Rule 60(B)(6) Relief from Final Judgments in the Fourth Circuit

By Frederick Johnson

This Recent Development argues that the time has come to relax the assumption that erroneous final judgments caused in part by the petitioner’s own tactical choices categorically bar Rule 60(b)(6) relief. In doing so, it identifies trends that depart from the categorical approach. Some of these trends reflect the sound policy supporting Rule 60(b)(6) relief, while others run counter to the policy of such relief. This Recent Development also notes… READ MORE

90 N.C. L. Rev. 1212 (2012)

The Federal Arbitration Act and Testamentary Instruments

By David Horton

The United States Supreme Court’s expansion of the Federal Arbitration Act (the “FAA”) has made arbitration clauses ubiquitous in consumer and employment contracts and provoked heated debate. Recently, though, arbitration clauses have become common in a different context: wills and trusts. Courts have reached wildly different conclusions about whether these provisions are enforceable under state arbitration law. However, no judge, scholar, or litigant has considered the more important question of… READ MORE

90 N.C. L. Rev. 1027 (2012)

Clearly Established Enough: The Fourth Circuit’s New Approach to Qualified Immunity in Bellotte v. Edwards

By Daniel K. Siegel

This Recent Development argues that the Fourth Circuit was correct to adopt such an approach to qualified immunity. Although not explicitly spelled out by the court, this approach presents a reasonable way to balance the interests at stake in this profoundly unsettled area of law. Bellotte and subsequent Fourth Circuit decisions demonstrate that officers may be on notice that they are violating clearly established rights despite a lack of precedent… READ MORE

90 N.C. L. Rev. 1241 (2012)

United States v. Rodriguez and Carachuri-Rosendo v. Holder: Shedding Light on the Maximum Potential Term Issue in United States v. Simmons

By Christopher R. Detwiler

This Comment focuses on the recent developments related to determining the maximum potential term of imprisonment for a prior conviction. Part I provides background by considering some of the potential approaches to the issue and by discussing cases that have adopted those approaches. Part II examines Simmons I and Simmons II and analyzes the competing viewpoints in those cases. Finally, Part III considers the implications of these recent developments and… READ MORE

90 N.C. L. Rev. 1147 (2012)

Refusing To Compare Apples and Oranges: Why the Fourth Circuit Got It Right in United States v. Divens

By Tziporah Schwartz Tapp

In United States v. Divens, the Fourth Circuit reviewed a defendant’s appeal challenging the district court’s decision at sentencing that allowed the Government to withhold an extra acceptance of responsibility reduction under the United States Sentencing Guidelines (“Guidelines”) section 3E1.1(b). The Fourth Circuit reached a “very interesting and perhaps somewhat surprising” result: it vacated the defendant’s sentence and remanded the case for further proceedings. The court ruled that the Government… READ MORE

90 N.C. L. Rev. 1267 (2012)

Judging-Lite: How Arbitrators Use and Create Precedent

By W. Mark C. Weidemaier

  Common wisdom has it that arbitrators neither follow nor make precedent, with potentially dire consequences. These include the failure to enforce individual rights and the possibility that, over time, widespread use of arbitration will result in the decay or destruction of the law itself. Although difficult to test directly, this common wisdom can be explored indirectly by analyzing arbitrators’ citation practices. This Article conducts such an analysis using a… READ MORE

90 N.C. L. Rev. 1091 (2012)

The Jurisdictional “Haze”: An Examination of Tribal Court Contempt Powers Over Non-Indians

By Joseph Chilton

Recently, in the case of In re Russell, the Cherokee Tribal Court confronted the thorny issue of criminal contempt­. The court ruled that because all courts’ criminal contempt powers are inherent, they fall outside the scope of Oliphant. This Recent Development argues, however, that while imprecise facets of Oliphant and contempt law would make it appropriate for the Cherokee Tribal Court to claim power over summary criminal contempt prosecutions of non-Indians in… READ MORE

90 N.C. L. Rev. 1189 (2012)

The Geography of Sexuality

By Yishai Blank & Issi Rosen-Zvi

Who regulates sexuality in America? Given the high salience of federal laws and policies such as the Defense of Marriage Act (“DOMA”), the military’s “Don’t Ask, Don’t Tell” policy, and states’ legal activism regarding same-sex marriage, it would seem that sexuality is mostly a federal and state matter, and that cities play a secondary, if not insignificant role. This Article argues that in fact the opposite is true: the regulation… READ MORE

90 N.C. L. Rev. 955 (2012)