Volume 89

Two Faces of Janus in the District Courts: Is Liability for Securities Fraud Under Section 17(a) Limited to Actors with “Ultimate Authority” over Untrue Statements?

By Andrew P. Arnold

This Recent Development argues that limiting section 17(a) liability for untrue statements to individuals with “ultimate authority” over those statements is not supported by the Supreme Court’s reasoning in Janus. The Court provided three justifications for imposing an ultimate authority requirement. First, the Court pointed to the use of the word “make” in the text of Rule 10b-5, but this word “is absent from the operative language of Section 17(a).” Second,… READ MORE

91 N.C. L. Rev. 1049 (2013)

The Republics of Liberty and Letters: Progress, Union, and Constitutionalism in Graduation Addresses at the Antebellum University of North Carolina

By Alfred L. Brophy

In the thirty years leading into Civil War, orators delivered hundreds of addresses to college literary societies throughout the United States. Those addresses, which were frequently given by lawyers, legally-trained politicians, and judges, condensed the orators’ ideas about law, history, economy, technology, and education together into a short compass. They provide an important and overlooked set of data for understanding how antebellum intellectuals saw law in relation to moral, technological,… READ MORE

89 N.C. L. Rev. 1879 (2011)

Public Funding of Judicial Campaigns: The North Carolina Experience and the Activism of the Supreme Court

By Paul D. Carrington

In recent years, the problem of selecting judges to sit on the highest state courts has become a national crisis. North Carolina remains among the states whose constitutions require competitive elections of all its judges. Presently, all candidates for its judicial offices must first compete for election in a non-partisan primary, a system motivated by the desire to maximize the power of the state’s citizen-voters to choose their judges and… READ MORE

89 N.C. L. Rev. 1965 (2011)

Constitutional Threats in the E-Commerce Jungle: First Amendment and Dormant Commerce Clause Limits on Amazon Laws and Use Tax Reporting Statutes

By Scott W. Gaylord and Andrew Haile

Internet sales continue to increase as consumers take advantage of the convenience and price competition that e-commerce provides.  Yet, as North Carolina and other states have learned, frequently the “lower” prices available online result from the fact that many internet retailers, such as Amazon.com, do not collect sales tax on such purchases.  In fact, under United States Supreme Court precedent, North Carolina and other states cannot require internet retailers such… READ MORE

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

“It’s Navigable in Fact, So I Can Fish It”: The Public Right to Use Man-Made, Navigable-In-Fact Waters of Coastal North Carolina

By Joseph J. Kalo

An increasingly common amenity of large residential coastal developments in North Carolina is a man-made boat basin or marina connected by a canal to the natural navigable-in-fact waters of coastal rivers, tidal creeks, or estuarine waters. An important question is whether waters of these man-made boat basins, marinas, and canals are privately owned and privately controlled or whether the waters retain their public character and are open to public trust… READ MORE

89 N.C. L. Rev. 2095 (2011)

Race and Death Sentencing in North Carolina, 1980-2007

By Michael L. Radelet & Glenn L. Pierce

For the past several years the North Carolina General Assembly has been interested in the question of whether there are racial disparities in the administration of the death penalty in that State. As researchers who have studied this issue in several states over the past three decades, we designed a study to determine if patterns of death sentencing in North Carolina correlated with the race of the victim and/or the race of the… READ MORE

89 N.C. L. Rev. 2119 (2011)

Filling the Fourth Circuit Vacancies

By Carl Tobias

Federal judicial selection has become increasingly controversial. Allegations and recriminations, partisan division, and incessant paybacks have accompanied the appeals court appointments process for decades. These phenomena were pervasive in the administration of President George W. Bush as well as in nominations and confirmations to the United States Court of Appeals for the Fourth Circuit, particularly respecting judgeships assigned to North Carolina. The protracted vacancies have eroded the Fourth Circuit’s delivery… READ MORE

89 N.C. L. Rev. 2161 (2011)

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)

Sometimes Jumping on the Bandwagon is a Good Thing: An Analysis of North Carolina’s Prohibition of Transfer Fee Covenants

By Christopher D. McEachran

For the past ten years, homeowners across the country have been discovering that when it comes to contracts to purchase real property, it pays to read the fine print. In the early 2000s, a Texas company began attaching private transfer fee covenants (“TFCs”) to properties in residential communities. A TFC purportedly allows the developer to collect one percent of the sales price from future sellers every time the property is… READ MORE

89 N.C. L. Rev. 2201 (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)