North Carolina law review最新文献

{"title":"Uncertain Standing: Normative Applications of Standing Doctrine Produce Unpredictable Jurisdictional Bars to Common Law Data Breach Claims","authors":"Michael B. Jones","doi":"10.2139/SSRN.2795133","DOIUrl":"https://doi.org/10.2139/SSRN.2795133","url":null,"abstract":"In the absence of federal mandates, data breach litigation should help to establish data security standards to guide corporations and reassure consumers. Regrettably, too many consumers who bring these claims are denied standing under the injury-in-fact requirement before those claims can proceed to the merits. Relatedly, the Supreme Court affirmed the “certainly impending” standard for satisfying the injury-in-fact element of standing on the basis of an increased risk of future harm in a 2013 data collection case, Clapper v. Amnesty International. Since Clapper, much of the disagreement among federal courts in data breach litigation has concerned the requisite imminence of identity theft that a consumer’s allegations must demonstrate in order for the consumer to establish injury. However, Clapper should be inapposite in these cases because the Court has only applied the exacting injury inquiry that it applied in Clapper to other causes of action that present separation of powers concerns. More broadly, the application of the injury-in-fact requirement in data breach litigation forces courts to make at least two normative choices that lead to doctrinal unpredictability. In applying the factual injury test, courts enjoy discretion to identify the factual harm at issue and determine the minimum degree of risk necessary to render that harm “imminent.” Imposing either of these choices allows courts to dismiss claims on jurisdictional grounds that may well be compensable under substantive law. Moreover, this result is irreconcilable with the Court’s modern theoretical justification for the injury-in-fact requirement as a restraint on the unconstitutional expansion of judicial power. Courts could reduce doctrinal confusion in data breach litigation and thus encourage more predictable outcomes by remedying either of these two normative choices: selecting the factual injury or determining the minimum probability of that injury’s occurrence necessary to render that harm imminent.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"95 1","pages":"201"},"PeriodicalIF":0.0,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2795133","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68330450","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Labor, Exclusion, and Flourishing in Property Law","authors":"Eric R. Claeys","doi":"10.2139/SSRN.2665829","DOIUrl":"https://doi.org/10.2139/SSRN.2665829","url":null,"abstract":"This Article presents a natural rights justification for property rights in a theory called “productive labor theory.” Productive labor theory sets forth a Lockean, labor-based case for property. It links property to human interests in flourishing — specifically in interests in using ownable resources to produce constituent elements of survival or rational improvement. On this foundation, “labor” means intelligent and purposeful activity producing goods contributing to survival or rational improvement.This Article presents productive labor theory as an alternative to the two families of normative theories that currently loom large in contemporary property scholarship — economic theories of exclusion, and progressive theories. Each of these theory-families unsettles property in an important respect; productive labor theory shores up each of the foundations unsettled by exclusion and progressive theories. Like progressive theories, productive labor theory links property on a satisfying moral foundation, namely human flourishing. Unlike progressive theories, productive labor theory doesn’t denigrate or undermine the role that exclusive control plays in property. Like leading economic theories, productive labor theory justifies strong rights of exclusive control and possession. Yet it avoids standard criticisms about normative foundations of law and economic analysis, and it identifies moral boundaries within which efficiency analyses might be normatively defensible.The Article illustrates using: the prima facie case for trespass to land; the common law privilege for necessity and the defense for adverse possession; Allemansratt and statutory rights to roam; state and local landmark schemes (as exemplified in Penn Central Transportation Co. v. New York City); and regulatory schemes authorizing the use of eminent domain to condemn and reassign private land for commercial redevelopment (as exemplified in Kelo v. City of New London).","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"95 1","pages":"413"},"PeriodicalIF":0.0,"publicationDate":"2016-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68245731","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"North Carolina's Heritage Protection Act: Cementing Confederate Monuments in North Carolina's Landscape","authors":"K. Wahlers","doi":"10.2139/SSRN.2685191","DOIUrl":"https://doi.org/10.2139/SSRN.2685191","url":null,"abstract":"Even in 2015, the North Carolina landscape is densely populated with Confederate monuments, appearing in more than half of the state’s one hundred counties. The state has more monuments honoring the Civil War than any other event, with five Civil War monuments for every World War II monument. Most of these structures were erected between 1890 and 1930 and many are located on public property, commonly found in and around courthouses, town squares, graveyards, and University campuses. In July of 2015, North Carolina enacted the Heritage Protection Act (“HPA”). This law severely restricts the removal, relocation, or alteration of any monument located on public property. While neutral on its face, North Carolina’s Heritage Protection Act was enacted for the purpose of protecting Confederate monuments. This Recent Development argues that the North Carolina Heritage Protection Act creates a lack of accountability on behalf of the N.C. General Assembly, usurps powers of local governments, and is amorphously vague as to what objects it applies to. Clarification of the statutory language by the General Assembly as well as a provision allowing for the erection of plaques that contextualize these monuments within local history is needed. Analysis proceeds in three parts. Part I of this Recent Development briefly sketches the propagation of Heritage Protection Acts across the South, outlines the North Carolina Heritage Protection Act, and highlights ways the North Carolina statute differs from other states. Part II discusses the confusing nature of this statute and analyzes legislative history to offer insight as to: (1) what role the North Carolina Historical Commission plays, if any, in deciding to permanently remove or relocate monuments; (2) whether this statute applies to county or city owned monuments; and (3) what constitutes a “display of permanent character.” Finally, Part III argues that this statute is in need of clarification and a provision that provides for plaques that contextualize these monuments within their local history. A brief conclusion follows.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"94 1","pages":"2176"},"PeriodicalIF":0.0,"publicationDate":"2015-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2685191","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68255117","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Eugenics Movement in North Carolina","authors":"A. Brophy, Elizabeth Lea Troutman","doi":"10.2139/SSRN.2650083","DOIUrl":"https://doi.org/10.2139/SSRN.2650083","url":null,"abstract":"“The Eugenics Movement in North Carolina” places North Carolina into the social, political, and legal context of the movement in the United States that resulted in the sterilization of more than thirty thousand people from the 1920s through the 1960s. We sketch the social and political arguments that were mobilized to support sterilization, as well as the arguments judges developed alongside these arguments from the 1910s through the 1930s. State courts slowly accepted sterilization until the United States Supreme Court’s decision in 1927 in Buck v. Bell. Then courts and legislatures around the United States more readily accepted it, even as legal scholars expressed reservations about sterilization. North Carolina was one of those states that embraced sterilization. The machinery of the state went into facilitating sterilization. The Eugenics Board of North Carolina, the state board in charge of reviewing petitions from public health officials for sterilization, produced pre-printed forms to facilitate the approval of sterilization. They presided over the petitions and routinely granted the vast majority of them. The few sterilization orders that were challenged in court were also routinely upheld.For nearly two decades, until the United States’ entrance into World War II, sterilization was broadly accepted by courts. But the United States Supreme Court’s decision in Skinner v. Oklahoma in 1942 began to turn the tide against sterilization, as did unease with a procedure that was reminiscent of what was happening in Germany during the War. Yet, even after Skinner v. Oklahoma and after World War II ended, as the rest of the nation began to abandon sterilization, sterilizations continued in North Carolina.We conclude with a discussion of the recent legislation in North Carolina to provide modest payments to the victims of the state’s sterilization program. In particular we discuss the design of a payment regime and how the legislature can justify payments for this concentrated episode of state infringement on personal liberty. And we suggest that the North Carolina legislation may provide a model for future legislative action aimed at payments for people sterilized involuntarily in other states.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"94 1","pages":"1871"},"PeriodicalIF":0.0,"publicationDate":"2015-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68239486","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Turning the Kaleidoscope: Toward a Theory of Interpreting Precedents","authors":"Craig Green","doi":"10.2139/SSRN.2574661","DOIUrl":"https://doi.org/10.2139/SSRN.2574661","url":null,"abstract":"A full generation of legal scholarship has analyzed methods of interpreting statutory and constitutional provisions. Different works have emphasized text, original intent, original reception, and dynamic “living” meaning as academics have argued over which methodological systems describe current practice, and which systems are normatively best. Comparable methodological debates have not occurred with respect to judicial decisions. This Article examines precedents as a third category of legal authorities that -- much like statutes and constitutions -- sometimes present vague answers to important legal questions. This Article’s system of precedential interpretation will challenge unexamined intuitions about “reading cases,” with collateral implications for statutory and constitutional interpretation as well. I consider four categories of historical materials to generate different sorts of precedential meaning: (i) an opinion’s text, indicating a decision’s declared meaning; (ii) adjudicative context, reflecting a precedent’s implied meaning; (iii) reception by contemporary analysts, which depict understood meaning; and (iv) subsequent doctrinal applications, which identify developmental meaning. These categories offer analogies to forms of textualism, originalism, and dynamism that are well known in other legal contexts. Different methods of precedential interpretation yield different substantive outcomes, as this Article demonstrates through cases from the nineteenth, twentieth, and twenty-first centuries. By way of illustration, this Article will use its interpretive system to destabilize conventional views of Swift v. Tyson, Erie v. Tompkins, and the same-sex marriage case United States v. Windsor. Applying this model to other circumstances could prompt similar revisionism for other influential cases. As is also true in the context of statutes and constitutions, no system of precedential interpretation can produce simple doctrinal solutions to hard legal problems. A systematic view of interpretive methodology, however, will clarify how interpretive fights proceed, as it explores techniques that lawyers and judges use to manipulate precedents’ immense legal power.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-03-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68210192","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Federalism as Docket Control","authors":"J. Mazzone, Carl Emery Woock","doi":"10.2139/SSRN.2573107","DOIUrl":"https://doi.org/10.2139/SSRN.2573107","url":null,"abstract":"On the twentieth anniversary of United States v. Lopez (1995), this Article revisits the Rehnquist Court’s federalism revolution. Much of what has been said about the federalism cases of the Rehnquist Court misses a fundamental aspect of those decisions — one with profound implications for making sense not just of the Rehnquist era but a large component of the Supreme Court’s work since the earliest days of the Republic. Focusing particularly on Lopez and the follow-up case of United States v. Morrison (2000), the Article offers a new perspective on what the Rehnquist Court was up to. We set forth a practical reading of Lopez and Morrison as cases about docket control. In both cases, we suggest, the Court was concerned with shielding the federal district courts from ever-expanding criminal and civil cases that resulted from new federal laws. The Article shows that from the Court’s perspective, docket control was not simply about keeping the caseloads of the district courts at a manageable level. Instead, quite apart from numbers, the Court was concerned with the particular types of cases Congress wanted the district courts to handle. Congress, the Justices feared, was undermining the prestige of the federal judiciary by blurring the distinction between state and federal judges and turning federal judges into petty magistrates. Docket control was thus about protecting the integrity of the third branch of government — a mechanism, in other words, that began in federalism but served also separation of powers. While we draw on a variety of sources in presenting our account, the Article relies heavily on a rich and surprisingly underused resource: the annual testimony by Supreme Court Justices before congressional committees in support of the Court’s annual budgetary requests. These hearings document candid comments by the Justices on a range of issues, including a deep concern with Congress’s treatment of the lower federal courts. Indeed, read with the benefit of hindsight, the hearings show the Justices shortly prior to Lopez and Morrison forecasting the outcomes in those cases and articulating an overlooked rationale underlying the decisions.Our account provokes a rethinking of the constitutional justification for Lopez and Morrison (and other federalism decisions of the Rehnquist Court). The two cases, we show, represented the culmination of more than a century of efforts by the Supreme Court to safeguard the role of the judicial branch in our constitutional system. Doctrinally, Lopez and Morrison involved questions of the scope of congressional power and the degree of deference courts owe to Congress when it legislates. By centering on these issues, however, debate over the outcomes in Lopez and Morrison has overlooked a more basic justification for the Court’s rulings. When the Court acts to protect the judiciary — and particularly when it does so after repeated requests to Congress for help — it is on firmer constitutional ground than critics o","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"94 1","pages":"7-104"},"PeriodicalIF":0.0,"publicationDate":"2015-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2573107","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68209473","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"FTC v. Actavis: The Patent-Antitrust Intersection Revisited","authors":"G. Lunney","doi":"10.2139/SSRN.2348075","DOIUrl":"https://doi.org/10.2139/SSRN.2348075","url":null,"abstract":"Antitrust and patent law both seek to advance public welfare, but there has long been an undeniable tension between them. Where antitrust seeks to minimize market power in order to ensure competitive markets and pricing, patent law seeks to provide market power in order to provide incentives for the creation and disclosure of desirable inventions. In its most recent iteration, the tension between patent and antitrust law was before the Court in FTC v. Actavis, a case involving the legality of so-called reverse payments settlements. In a reverse payment settlement, a pharmaceutical company and a generic drug company settle claims of patent infringement by agreeing that the generic drug company will remain out of the pharmaceutical market covered by the patent in return for a payment from the patent-holding pharmaceutical company. The various circuit courts had reached widely variant conclusions on whether reverse payment settlements were legal, with some of the courts ruling such agreements, essentially, per se illegal, while others ruled such agreements, essentially, per se legal, at least so long as the agreement’s anticompetitive effects fell within the patent’s exclusionary scope. In its decision, the Court rejected both approaches, and required courts to apply the rule of reason to these settlements. While the Court provided some guidance on how the courts should approach a rule of reason analysis in these cases, some issues remain unclear. With the hope of suggesting some workable principles, this article re-examines the economics of patents and explains why some patents are weak, while others are strong. It then uses a game theoretic approach to analyze how the legal rules governing settlement can advance or disserve the goals of patent and antitrust law in this context.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"93 1","pages":"375"},"PeriodicalIF":0.0,"publicationDate":"2013-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68127621","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism","authors":"S. Estreicher, Jeffrey M. Hirsch","doi":"10.2139/SSRN.2238776","DOIUrl":"https://doi.org/10.2139/SSRN.2238776","url":null,"abstract":"Commentators have long debated the merits of the United States’ “at-will” rule, which allows employers and employees to end the employment relationship without cause or notice, absent a constitutional, statutory, or public policy exception. One premise for both proponents and opponents of at-will employment is to stress the uniqueness of this default among other developed countries, which generally require “cause” for most dismissals. Although other countries’ cause regimes differ significantly from the U.S. on paper, this Article addresses whether those differences in normative law also reflect differences in employees’ protection against wrongful termination in reality. The existing literature on dismissal law stops at a comparison of countries’ normative laws as they appear on the books. In comprehensively examining the dismissal regimes of numerous countries, this Article goes beyond the text of the relevant statues and cases by using information from foreign employment law practitioners and available data - particularly claimants’ success rates and average remedies - in an attempt to observe how the laws actually operate. We find that, even on paper, the cause protection of the surveyed countries is far less robust than typically described. Moreover, the actual practice in these countries shows that challenges to dismissal can be difficult to pursue and generally result in modest remedies by U.S. standards. This suggests that the U.S., with its at-will default and broader remedies, is actually part of relatively narrow continuum of employment laws found in advanced countries.This Article hopes to spur more in-depth descriptive work on the employment laws of other countries and to broaden the terms of the debate over the relative merits of the U.S. employment dismissal system and the dismissal systems of cause regimes.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"92 1","pages":"343"},"PeriodicalIF":0.0,"publicationDate":"2013-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68019962","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Transnational Mothering: A Source of Gender Conflict in the Family","authors":"T. Geisen, R. Parreñas","doi":"10.1007/978-3-531-94127-1_9","DOIUrl":"https://doi.org/10.1007/978-3-531-94127-1_9","url":null,"abstract":"","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"49 1","pages":"169-194"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"51041019","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Four Freedoms and the Future of Religious Liberty","authors":"John D. Inazu","doi":"10.2139/SSRN.2158861","DOIUrl":"https://doi.org/10.2139/SSRN.2158861","url":null,"abstract":"The First Amendment’s rights of speech, press, religion, and assembly were once “interwoven” but distinct. Together, these freedoms advanced a pluralist skepticism of state orthodoxy that protected religious and other forms of liberty. The connections among these rights were evident at the Framing. They were also prominent during the 1930s and 1940s, when legal and political rhetoric recognized the “preferred position” of the “Four Freedoms.” We have lost sight of the Four Freedoms, supplanting their unified distinctiveness with an undifferentiated free speech framework driven by unsatisfying concepts like content neutrality and public forum analysis. It did not have to be this way, and it may not be too late to change course. This Article seeks to renew the pluralist emphasis once represented by the Four Freedoms. The consequences of losing the pluralist vision are nowhere more evident than in the diminishing constitutional protections for religious groups, which are paradigmatic of the expressive, dissenting, and culture-forming groups of civil society. The Four Freedoms remind us that the boundaries of religious liberty have never rested solely in the First Amendment’s free exercise clause — religious liberty is best strengthened by ensuring robust protections of more general forms of liberty. But the normative effort to reclaim pluralism is not without costs, and it confronts powerful objections from anti-discrimination norms pertaining to race, gender, and sexual orientation — objections that cannot go unanswered.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"92 1","pages":"787"},"PeriodicalIF":0.0,"publicationDate":"2012-10-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67958903","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}