Volume 91: Issue 4

Takings and Transmission

By Alexandra B. Klass

Ever since the Supreme Court’s controversial 2005 decision in Kelo v. City of New London, courts, state legislatures, and the public have scrutinized eminent domain actions like never before. Such scrutiny has focused, for the most part, on the now-controversial “economic development” or “public purpose” takings involved in Kelo. By contrast, until recently, there has been little change in law or public opinion with regard to takings involving publicly-owned projects… READ MORE

91 N.C. L. Rev. 1079 (2013)

Justice of the Peace?: Why Federal Rule of Evidence 404(A)(2)(C) Should Be Repealed

By Colin Miller

Federal Rule of Evidence 404(a)(2)(C) and its state counterparts are the one exception to the general “Pandora’s Box” theory regarding the admissibility of propensity character evidence in criminal cases. Under Federal Rule of Evidence 404(a)(2), sometimes dubbed the “mercy rule,” propensity character evidence is generally inadmissible in any criminal trial unless the defendant decides to inject character evidence into trial by presenting evidence of his good character under Rule 404(a)(2)(A)… READ MORE

91 N.C. L. Rev. 1161 (2013)

The Right to Appeal

By Cassandra Burke Robinson

It is time for the Supreme Court to explicitly recognize a constitutional right to appeal. Over the last century, both the federal and state judicial systems have increasingly relied on appellate remedies to protect essential rights. In spite of the modern importance of such remedies, however, the Supreme Court has repeatedly declined to recognize a due process right to appeal in either civil or criminal cases. Instead, it has repeated… READ MORE

91 N.C. L. Rev. 1219 (2013)

Federal Preemption and Clean Energy Floors

By Jim Rossi & Thomas Hutton

Federal policies regarding renewable and clean energy often lack clear definition, are incomplete, and are scattered across multiple statutes and agencies. Yet at the same time, recent decisions of both federal agencies and courts have attributed a preemptive effect to federal statutes that threatens to hobble innovation in renewable and clean energy policy by subnational regulators. This approach channels the most impactful policies promoting clean and renewable energy toward subsidies… READ MORE

91 N.C. L. Rev. 1283 (2013)

Bathrooms, Burn Pits, and Battlefield Torts: The Need for a Particularized, Contextual Approach to the Combatant Activities Exception after Saleh and Al Shimari

By S. Yasir Latifi

The D.C. Circuit’s 2009 decision in Saleh v. Titan Corp. “dramatically extended” the scope of the Federal Tort Claims Act’s (“FTCA”) combatant activities exception. In 2011, under accusations similar to those found in Saleh, a Fourth Circuit panel in Al Shimari v. CACI International, Inc. followed the D.C. Circuit’s reasoning, holding that the combatant activities exception to the FTCA preempted tort claims arising out of the alleged torturing of Iraqi… READ MORE

91 N.C. L. Rev. 1357 (2013)

When “It Depends” Isn’t Good Enough: The Problems Caused by the Supreme Court of North Carolina’s Decision in State v. Mbacke

By Rebecca A. Fiss

In State v. Mbacke, the Supreme Court of North Carolina did not seem to be in on the joke. This case was the court’s first attempt to interpret and apply Arizona v. Gant, a 2009 decision from the United States Supreme Court that both law enforcement officers and defense and civil liberties groups around the country viewed as a “big deal.” The state court was tasked with deciding whether, after a vehicle’s occupant… READ MORE

91 N.C. L. Rev. 1404 (2013)

Not Cutting It: The Fourth Circuit’s Misapplication of Section 4B1.2(a)(2) of the Sentencing Guidelines in Mobley v. United States

By Joseph T. Polonsky

In Mobley v. United States, the Fourth Circuit held by a split vote that Mobley’s possession of a prohibited object in prison, namely a shank stored in the insole of his shoe, constituted a “crime of violence” under the residual clause of Section 4B1.2(a)(2) of the Sentencing Guidelines sufficient to enhance his sentence to the thirty-seven months Mobley received.  This Recent Development argues first that the Fourth Circuit incorrectly decided… READ MORE

91 N.C. L. Rev. 1437 (2013)

Due Process by Proxy: United States v. Brehm and the Problem of Extraterritorial Jurisdiction over Foreign Nationals

By Edward F. Roche

Sean Brehm, a South-African citizen employed by a private military contractor, assaulted a British contractor on a NATO base in Afghanistan.  Brehm was transported seven thousand miles to the United States, a country he had never visited, where he was tried, convicted, and imprisoned.  On appeal, Brehm contended that the court’s exercise of jurisdiction over him violated due process.  The Fourth Circuit, in United States v. Brehm, upheld his conviction. … READ MORE

91 N.C. L. Rev. 1463 (2013)