Issue 6

Duties of Nonprofit Corporate Directors—Emphasizing Oversight Responsibilities

By Thomas Lee Hazen & Lisa Love Hazen

The law on nonprofit directors’ obligations is sparse. Nevertheless, in recent years nonprofit directors have faced increased scrutiny. This Article explores this increased scrutiny and sheds light on the development of North Carolina nonprofit law as it pertains to directors’ duties. North Carolina imposes stringent duties on nonprofit directors including the duty of overseeing the nonprofit’s operations. However, following the pattern in most states, there are limited avenues for holding directors… READ MORE

90 N.C. L. Rev. 1845 (2012)

Deconstructing a Decade of Charter School Funding Litigation: An Argument for Reform

By Lisa Lukasik

For over a decade, North Carolina’s charter schools and traditional public schools have been embroiled in litigation over access to local public funding. This litigation shows no sign of abatement. In fact, disputes between charter schools and traditional public schools over local funds are likely to continue until the North Carolina legislature revisits the state’s charter school funding statute and modifies the means by which local funds are transferred to… READ MORE

90 N.C. L. Rev. 1885 (2012)

Sharpening the Blunt Blue Pencil: Renewing the Reasons for Covenants Not to Compete in North Carolina

By Jon P. McClanahan & Kimberly M. Burke

Covenants not to compete are often included in modern employment contracts to prevent employees from working for competitors for a specified amount of time after termination of employment. Although such covenants were initially unenforceable at common law because they represented invalid restraints on trade, most jurisdictions today enforce covenants not to compete where such covenants are reasonable. Jurisdictions differ, however, in their treatment of unreasonable covenants, choosing from one of… READ MORE

90 N.C. L. Rev. 1931 (2012)

Adultery as Tort

By Lance McMillian

North Carolina is one of the last remaining states to recognize tort claims arising from adultery. Ignoring criticism of this position, the appellate courts of the state have consistently and steadfastly refused to abandon adultery-based actions, despite many high-profile opportunities to do so. Traditional torts such as alienation of affections and criminal conversation thus retain their viability. Not everyone is pleased with North Carolina’s isolation in this regard. Attempts in… READ MORE

90 N.C. L. Rev. 1987 (2012)

Defining Unfairness in “Unfair Trade Practices”

By Matthew W. Sawchak & Kip D. Nelson

North Carolina’s “unfair or deceptive acts or practices” statute, section 75-1.1 of the North Carolina General Statutes, is a constant presence in North Carolina litigation. The statute combines two explosive ingredients: (1) a private right of action for treble damages and (2) an open-ended conduct standard. For claims of unfair practices, the conduct standard under section 75-1.1 is open-ended to the point of dysfunction. The standard is no more than… READ MORE

90 N.C. L. Rev. 2033 (2012)

Judicial Deference to Legislatures in Constitutional Analysis

By Dru Stevenson

North Carolina is one of the only states to have a statutory definition of voluntary consent for police searches; it essentially codified the Supreme Court’s Bustamonte rule. In theory, this statute could eventually face a constitutional challenge if the Supreme Court adopted a requirement of informed consent—police warnings of the right to refuse a search—as many have urged. Considering this possibility as a hypothetical, it seems strange that conventional Fourth… READ MORE

90 N.C. L. Rev. 2083 (2012)

Diligence and Digiovanni: The Fourth Circuit’s Interpretation of Investigatory Traffic Stop Reasonableness after Arizona v. Johnson

By Brian J. Litwak

Between 1986 and 2001, Operations Convoy and Pipeline, joint task forces between the Drug Enforcement Administration and state highway patrols, successfully seized over 2.9 million pounds of marijuana and $704 million in currency during routine traffic stops along major American interstates. As the number of these seizures increased, drug enforcement officials became highly skilled at asking “key questions” to determine whether a person was transporting narcotics. Counterbalancing the efficacy of the officers’… READ MORE

90 N.C. L. Rev. 2142 (2012)

The Folly in Finality: The Constitutionality of ALJ Final Decision-Making in North Carolina

By Asher P. Spiller

This Recent Development explores whether North Carolina’s Regulatory Reform Act’s grant of final decision making authority to state Administrative Law Judges violates the state’s separation of powers doctrine through two different inquiries: First, does Administrative Law Judge finality unconstitutionally encroach on the power of the judiciary? Second, does Administrative Law Judge finality unconstitutionally undermine executive branch authority? This Recent Development first argues that Administrative Law Judge finality is not an… READ MORE

90 N.C. L. Rev. 2162 (2012)