Volume 88: Issue 4 · May 2010

Remembering Sally Burnett Sharp

By Patricia L. Bryan

88 N.C. L. Rev. 1209 (2010)

How to Live with a Tax Code with Which You Disagree: Doctrine, Optimal Tax, Common Sense, and the Debt–Equity Distinction

By Ilan Benshalom

The current financial crisis and recession demonstrate the overwhelming social cost of high leverage. While many factors contributed to the development of the crisis, one factor is frequently overlooked—the tax incentive for excessive debt financing. This Article explains how the debt–equity distinction in the tax code provides corporations with incentives to rely on highly leveraged finance structures. It then asserts that even though there is little justification for the tax… READ MORE

88 N.C. L. Rev. 1217 (2010)

Restructuring the Debate on Unauthorized Humanitarian Intervention

By Saira Mohamed

Scholars and practitioners addressing the problem of unauthorized humanitarian intervention often characterize the central difficulty of the issue as arising out of the fact that when the U.N. Security Council fails to authorize states to use military force to stop mass atrocities, the law requires a result—doing nothing—that is illegitimate and morally abhorrent. One scholarly solution to this predicament has been to subordinate considerations of legality to those of legitimacy… READ MORE

88 N.C. L. Rev. 1275 (2010)

Hirabayashi and the Invasion Evasion

By Eric L. Muller

This Article presents archival evidence demonstrating that government lawyers made a crucial misrepresentation to the United States Supreme Court in the case of Hirabayashi v. United States, 320 U.S. 81 (1943), the case that upheld the constitutionality of a racial curfew imposed on Japanese Americans in World War II. While the government’s submissions in Hirabayashi maintained that the curfew was a constitutional response to the serious threat of a Japanese… READ MORE

88 N.C. L. Rev. 1333 (2010)

You’re Only as “Free to Leave” as You Feel: Police Encounters with Juveniles and the Trouble with Differential Standards for Investigatory Stops under In re I.R.T.

By Jonathan S. Carter

Casual encounters with police invoke myriad reactions in different types of people, even among the blameless. While some may welcome the presence of law enforcement as an assurance of their safety and security, others feel an immediate sense of intimidation and trepidation by police questioning. In the context of the Fourth Amendment, however, such visceral responses to police presence can take on constitutional significance. If one is naturally inclined to… READ MORE

88 N.C. L. Rev. 1389 (2010)

New York’s Unconstitutional Tax on the Internet: Amazon.com v. New York State Department of Taxation & Finance and the Dormant Commerce Clause

By Daniel Cowan

As the current economic downturn continues to ripple through every sector of the economy, state governments from North Carolina to California are struggling to develop innovative tax policies to boost their plummeting revenues. Traditional methods of taxation are no longer sufficient to satisfy state expenditures—either government spending must change drastically or legislatures must approve new taxes to bolster falling revenues. The recent “Amazon tax” passed by the New York State… READ MORE

88 N.C. L. Rev. 1423 (2010)

No More Free Passes: Yousuf v. Samantar and the Foreign Sovereign Immunities Act

By Ashley Edmonds

Individuals who were the subjects of torture and other atrocities abroad often come to the United States seeking refuge. Since 1991, these victims have also found a way of holding their torturers liable for their actions under the Torture Victim Protection Act of 1991 (“TVPA”). However, victims suing under the TVPA have faced an obstacle in the form of the Foreign Sovereign Immunities Act of 1976 (“FSIA”), a law under… READ MORE

88 N.C. L. Rev. 1448 (2010)

Statutory Interpretation in Wal-Mart Stores East, Inc. v. Hinton and Why North Carolina Courts Should Apply Anti-Tax Avoidance Judicial Doctrines in Future Cases

By Jeremy M. Wilson

In its 2009 decision Wal-Mart Stores East, Inc. v. Hinton, the North Carolina Court of Appeals held that the North Carolina Secretary of Revenue had the statutory authority to force combination of Wal-Mart Stores East and its related corporate entities. This action led to Wal-Mart Stores East paying nearly $30 million in back taxes, interest, and penalties resulting from a complex corporate tax avoidance strategy. This Recent Development argues that… READ MORE

88 N.C. L. Rev. 1471 (2010)