Volume 88

Commencement Address—May 10, 2009

By Michael B. Mukasey

On May 10, 2009, former Attorney General Michael B. Mukasey delivered commencement remarks to the graduating class of the UNC School of Law. Reminding the graduates that lawyers deal with the very hardest subjects and questions, Mr. Mukasey described the challenges he faced as a federal district judge and as attorney general, urging all lawyers to join the national debate on the issues confronting our nation. Mr. Mukasey served from… READ MORE

88 N.C. L. Rev. 1 (2009)

The Truth About Physician Participation in Lethal Injection Executions

By Ty Alper

This Article addresses an aspect of Baze v. Rees (the Court’s recent lethal injection decision out of Kentucky) that has received little attention but threatens to have a significant impact on the way in which the holding of Baze is implemented in other states. In short, several of the Justices’ opinions in Baze were premised on the faulty notion that doctors cannot and will not participate in executions. As a… READ MORE

88 N.C. L. Rev. 11 (2009)

Presidential Control of the Elite “Non-Agency”

By Kimberly N. Brown

This article examines the constitutionality of legislation creating a new form of independent agency—in effect, a “non-agency” agency residing in the no-man’s land between Articles I and II of the Constitution. In the Sarbanes-Oxley Act, Congress established the Public Company Accounting Oversight Board (“PCAOB” or “Board”) and endowed it with massive governmental powers while insulating it from traditional mechanisms for ensuring accountability. Congress deemed the PCAOB not an agency, rendered… READ MORE

88 N.C. L. Rev. 71 (2009)

Requiring a Jury Vote of Censure to Convict

By Richard E. Myers II

This Article proposes changing the way juries (and judges) render their verdicts in criminal cases by explicitly requiring a separate finding before a defendant can be convicted: censure. Under mandatory jury censure, the criminal trial jury (or judge, if serving as factfinder), would be required to make a specific finding of censure in addition to any factual finding required under the law before a defendant could be convicted, as opposed… READ MORE

88 N.C. L. Rev. 137 (2009)


By Sean B. Seymore

Serendipity, the process of finding something of value initially unsought, has played a prominent role in modern science and technology. These “happy accidents” have spawned new fields of science, broken intellectual and technological barriers, and furnished countless products which have altered the course of human history. In the realm of patent law, one curious aspect of accidental discoveries which has received little attention in the academic literature and the courts… READ MORE

88 N.C. L. Rev. 185 (2009)

Dusting Off the AK-47: An Examination of NFL Players’ Most Powerful Weapon in an Antitrust Lawsuit against the NFL

By Sean W.L. Alford

Most of today’s football fans take labor peace for granted. After all, it has been more than fifteen years since professional football experienced the labor strife that led to one of the most significant antitrust decisions in favor of its players – McNeil v. National Football League. At the time, the decision was thought to be so player-friendly that one law professor coined it as the player’s “collective bargaining equivalent… READ MORE

88 N.C. L. Rev. 212 (2009)

The Data Game: Learning to Love the State-based Approach to Data Breach Notification Law

By Sara Needles

Packets of data identifying individuals are stored, sold, and swapped in more forums than it is possible to account for. As headlines signal more database-security breaches, increasing attention is being paid to the security of individuals’ personal information, particularly when that data is computerized. Beginning with California in 2003, all but five states have enacted data breach notification laws to help stanch and respond to data breaches. But because businesses… READ MORE

88 N.C. L. Rev. 267 (2009)

To Form a More Perfect Union: Taxation, Economic Efficiency, and the Dormant Commerce Clause in Department of Revenue v. Davis

By Casey J. Jennings

88 N.C. L. Rev. 311 (2009)

Damages Under the Privacy Act: Is Emotional Harm Actual?

By Nicole M. Quallen

In Cooper v. Federal Aviation Administration, et al, a District Court in the Northern District of California held that pilot Stanmore Cooper would not be compensated under the Privacy Act for the emotional harm he suffered when the Social Security Administration illegally disclosed his HIV status to the Federal Aviation Administration, the Department of Transportation and, ultimately, the public. This Note attempts to discern whether the Privacy Act’s “actual damages”… READ MORE

88 N.C. L. Rev. 334 (2009)

To Be Real: Sexual Identity Politics in Tort Litigation

By Anne Bloom

Tort litigation plays a role in constructing what we perceive to be “real” about sexual identity. It does so by assuming that sexual identity is naturally binary (male/female), even in cases which pose a challenge to the credibility of that assumption. Thus, to be “real” in tort litigation is to have a sexual identity which appears to be naturally binary, even if you are not. Individuals who challenge this conception… READ MORE

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

Consumer Investment in Trademarks

By Deborah R. Gerhardt

To protect the interests of trademark owners in many new contexts, trademark law has expanded and uprooted the doctrine from its policy of protecting consumers. To facilitate this expansion, consumer interests are often ignored or manipulated to conform to the interests of mark owners. This Article introduces consumer investment in trademarks as a model to bring public interests back into trademark doctrine. The model demonstrates that because consumers invest marks… READ MORE

88 N.C. L. Rev. 427 (2010)

On the Use and Abuse of Standards for Law: Global Governance and Offshore Financial Centers

By Richard K. Gordon

Current trends in international legal scholarship have shifted from a paradigm of state actors working within recognized sources of international law to one that includes networks of domestic regulators that develop and implement best practices or standards on a global basis. The new paradigm can be seen in operation in the efforts by onshore jurisdictions (most of which are financial centers themselves) to restrict the activities of offshore financial centers.… READ MORE

88 N.C. L. Rev. 501 (2010)

Whose Loss Is It Anyway? Effects of the “Lost-Chance” Doctrine on Civil Litigation and Medical Malpractice Insurance

By Steven R. Koch

This Comment explores the “lost-chance” doctrine—a theory of recovery unique to medical malpractice litigation that permits a patient to recover damages from a doctor without needing to establish a more-likely-than-not causal connection between the doctor’s negligence and the patient’s injury. Using two recent state supreme court decisions as a vehicle for analyzing the policy implications surrounding the doctrine, the Comment recounts the doctrine’s evolution, its current status amongst the fifty… READ MORE

88 N.C. L. Rev. 595 (2010)


By Erica Frankenberg, Leah C. Aden, and Charles E. Daye

The founding of the United States as a constitutional republic was nation-building. Restoring unity in the aftermath of the Civil War was nation-building. Achieving Brown v. Board of Education and the goal of equal educational opportunity for all children was nation-building. The articles in this Issue, inspired by the April 2009 conference, “Looking to the Future: Legal and Policy Options for Racially Integrated Education in the South and the Nation,”… READ MORE

88 N.C. L. Rev. 713 (2010)

Racially Integrated Education and the Role of the Federal Government

By Chinh Q. Le

When it comes to racial and ethnic integration in our nation’s public schools, it matters significantly whether the federal government is friend or foe. This has always been the case, but it is particularly so now. More than three decades have passed since the last major federal initiative to promote school integration. Meanwhile, courts in recent years have substantially curtailed the remedies that can be achieved through school desegregation litigation… READ MORE

88 N.C. L. Rev. 725 (2010)

Resurrecting the Promise of Brown: Understanding and Remedying How the Supreme Court Reconstitutionalized Segregated Schools

By Kimberly Jenkins Robinson

The Supreme Court’s decision on Brown v. Board of Education, held that separate educational facilities were “inherently unequal.” After tolerating substantial delay and evasion of the requirements of Brown, the Court eventually required school districts to dismantle the dual systems by eliminating all traces of separate schools and creating integrated schools. In contrast to numerous scholars that have contended that many of the Court’s later school desegregation decisions withdrew from… READ MORE

88 N.C. L. Rev. 787 (2010)

After Unitary Status: Examining Voluntary Integration Strategies for Southern School Districts

By Danielle Holley-Walker

This Article provides empirical data on student assignment plans that are currently being used by Southern school districts that have recently attained unitary status. As the facts of Parents Involved in Community Schools demonstrate, Southern school districts will likely continue to be at the forefront of the struggle over voluntary integration efforts. Many Southern school districts are being released from desegregation orders that allowed the district to use race conscious… READ MORE

88 N.C. L. Rev. 877 (2010)

Pursuing Educational Opportunities for Latino and Latina Students

By Kristi L. Bowman

The number and percentage of Latino and Latina students in U.S. public schools continue to grow rapidly, yet the literature lacks a comprehensive analysis of how existing law can be used to advocate for these students’ interests. This Article first lays the socio-legal foundation necessary to contextualize such an analysis. Then, it aims to provide such an analysis by evaluating the present utility of three major litigation initiatives and three… READ MORE

88 N.C. L. Rev. 911 (2010)

Integrated Education and Mathematics Outcomes: A Synthesis of Social Science Research

By Roslyn Arlin Mickelson and Martha Bottia

Mastery of mathematics and science by this nation’s youth is essential for the nation’s future development as well as students’ personal growth and economic well-being. Yet the performance of U.S. students in mathematics and science is unimpressive compared to other advanced industrialized nations. In addition, stark racial and socioeconomic status (“SES”) disparities in mathematics knowledge, skills, and achievement compound the predicament presented by the overall mediocre performance of U.S. students.… READ MORE

88 N.C. L. Rev. 993 (2010)

Altering Grade Configurations in Virginia Schools: Reducing School Segregation Without Necessarily Considering Race in Light of The Parents Involved Ruling

By William J. Glenn

This Article proposes a method by which school districts can voluntarily desegregate their schools while remaining within the constitutional guidelines set forth in the recent Parents Involved in Community Schools v. Seattle School District No. 1 Supreme Court opinion. This Article suggests that schools reconfigure grades as an alternative to the more explicit race-based measures struck down in Parents Involved. Grade reconfiguration entails reconstituting elementary schools, for instance, into primary… READ MORE

88 N.C. L. Rev. 1091 (2010)