North Carolina law review最新文献

{"title":"'Under God,' the Pledge of Allegiance, and Other Constitutional Trivia","authors":"Steven G. Gey","doi":"10.2139/SSRN.337200","DOIUrl":"https://doi.org/10.2139/SSRN.337200","url":null,"abstract":"A panel of the United States Court of Appeals for the Ninth Circuit created a furor recently when it ruled that the inclusion of the words \"under God\" in the official Pledge of Allegiance violates the Establishment Clause of the First Amendment. Responses to this ruling by politicians, the press, and legal academics were overwhelmingly critical. The unifying theme of many of these responses is that the claim against the \"under God\" language in the Pledge is trivial and therefore not the proper basis for an Establishment Clause ruling. This Article uses the Pledge controversy as a vehicle for investigating the concept of constitutional trivia in the Establishment Clause context. There are two variations on the argument that the \"under God\" controversy is trivial. The first variation asserts that the religious component of the Pledge has so little religious significance that it does not rise to the level of an Establishment Clause violation. The second variation acknowledges the religious significance of the \"under God\" language, but asserts that trivial religious exercises should be considered permissible exceptions. to the normal First Amendment rules. The problem is that neither variation on the triviality defense of the Pledge can be reconciled with a plausible reading of the factual background of the Pledge statute, or with the overwhelming thrust of the Supreme Court's Establishment Clause precedents. The triviality defense of the Pledge is therefore difficult to accept at face value. This defense should be viewed instead as a distorted reflection of the growing conflict over the most basic principle of Establishment Clause jurisprudence: Does the Constitution continue to mandate a secular government, or has the subtle sectarian dominance of government become an accepted constitutional fact?","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"81 1","pages":"1865"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68588678","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":"Victimhood in Our Neighborhood: Terrorist Crime, Taliban Guilt,and the Asymmetries of the International Legal Order","authors":"M. Drumbl","doi":"10.2139/SSRN.286637","DOIUrl":"https://doi.org/10.2139/SSRN.286637","url":null,"abstract":"This Article explores international and criminal law issues involved in U.S. and transnational responses to the tragic events of September 11, 2001. The thesis is raised that the September 11 attack constitutes a non-isolated war-like attack undertaken against a sovereign state by individuals operating through a non-state actor. This means that the attack is more appropriately categorized as a criminal or outlaw attack, not an armed attack or act of war. Under traditional public international law, this finding may problematize the legality of the military strikes initiated by U.S. and British forces on October 7, 2001. However, on a more prospective note, state practice and international organization response to the strikes suggest: (1) a transformation in the treatment by international law of the use of lethal force when undertaken for humanitarian or security purposes (in this regard, building upon the precedent set by NATO's intervention in Kosovo); (2) an expansion of state responsibility for individual criminals who may not be effectively controlled by a state; (3) a diminution of the role of the Security Council and United Nations on matters of global peace and security; and (4) an increase in the elasticity of individual and collective self-defense under Article 51 of the Charter of the United Nations. However, categorizing the violence as criminal does not end the inquiry. Actually, this only begins the process of reflection. How should criminal law respond to egregious behavior by non-state actors? Should punishing such behavior be the task of domestic criminal law or, rather, international criminal law? If international criminal law is the appropriate paradigm, how ought it to be applied to the September 11 attacks? Under what methods and procedures, and in which fora, should alleged terrorists or conspirators be tried? This Article suggests that trials will have to be carefully designed in order to deter future terrorist violence. This may necessitate the inclusion of culturally pluralist approaches. The need for this cultural contextualism may clash with the increasing hegemony of Western criminal trials as the mechanism to implement putatively \"universal\" criminal justice.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2001-10-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.286637","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68401283","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":"Expropriatory Intent: Defining the Proper Boundaries of Substantive Due Process and the Takings Clause","authors":"Krotoszynski, J. Ronald","doi":"10.2139/SSRN.286638","DOIUrl":"https://doi.org/10.2139/SSRN.286638","url":null,"abstract":"\"Expropriatory Intent: Defining the Proper Boundaries of Substantive Due Process and the Takings Clause\" examines and critiques the contemporary Supreme Court's expansive construction of the Takings Clause. Although the Supreme Court generally has decried the use of substantive due process to invalidate economic and social legislation, many of the recent regulatory takings cases deploy the Takings Clause to second guess the legitimacy or fundamental fairness of such enactments. The article argues that when a plaintiff alleges that a federal or state law is fundamentally unjust or arbitrary, the federal courts should analyze the merits of the claim under the rubric of substantive due process, rather than the Takings Clause. As Justice Holmes observed in Mahon, some regulations, although styled police power enactments, constitute de facto expropriations of private property. Recent regulatory takings cases, however, utilize a hodgepodge of tests to determine the essential nature of the government's action. In lieu of continued reliance on these disparate tests, federal courts should ask and answer a single inquiry: in the totality of the circumstances, has the government acted with expropriatory, rather than regulatory, intent (i.e., is the regulation effectively a proxy for the exercise of the eminent domain power)? This approach would bring needed doctrinal clarity to a muddled area of constitutional law. Moreover, it would preclude takings claims associated with most basic health, safety, and environmental laws and regulations (all of which would be, and should be, subject to substantive due process review).","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"80 1","pages":"713"},"PeriodicalIF":0.0,"publicationDate":"2001-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.286638","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68401396","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":"Meritocratic Values and Racial Outcomes: Defending Class-Based College Admissions","authors":"R. R. Banks","doi":"10.2139/SSRN.283711","DOIUrl":"https://doi.org/10.2139/SSRN.283711","url":null,"abstract":"This Article defends class-based admissions practices against the two criticisms most frequently directed at such policies. The merit critique contends that admissions policies that take account of applicants' socioeconomic status undermine the goals and values of meritocratic admissions. The racial diversity critique asserts that class-based policies are woefully inadequate to the task of producing a racially diverse group of admitted students. Each of these critiques is misguided. Class-based admissions policies comport with the underlying values of meritocratic admissions as fully as, if not more so than, policies that do not consider applicants' socioeconomic status. Class-based policies may also produce a much more racially diverse group of admitted applicants than such policies' critics recognize.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"68 1","pages":"1029"},"PeriodicalIF":0.0,"publicationDate":"2001-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.283711","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68374314","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":"Discrimination with a Difference: Can Employment Discrimination Law Accommodate the Americans with Disabilities Act?","authors":"S. Issacharoff, J. Nelson","doi":"10.2139/SSRN.220297","DOIUrl":"https://doi.org/10.2139/SSRN.220297","url":null,"abstract":"This paper analyzes the three recent ADA employment cases in the Supreme Court to highlight the unique features of the ADA. While all civil rights statutes have both an antidiscrimination command and a redistributive norm, the ADA is unique in that its definition of discrimination is based in large part on the failure to redistribute. Unlike the customary model of antidiscrimination law, which at its heart compels that similarly situated persons be treated similarly, the ADA begins with a premise of difference and then defines discrimination as the failure to reasonably accommodate those difference. Thus, despite the fact that Congress drafted the ADA to fit the model of Title VII, the ADA uniquely carries a cost burden for employers who, even if they act entirely without animus, may be forced to hire employees with discernibly different skills or abilities.This article argues that the Court's oftentimes tortured analysis of the ADA in the 1999 employment trilogy stems from this basic dilemma: The Court had to make wealth-redistributive value judgments sub silentio under a statutory scheme that obscures the scope of its redistributive mandate with the time-tested language of antidiscrimination. The article begins with an analysis of the divisions between the majority and dissents in these cases that turns on the need to craft rules of judicial administration. While the dissent would allow cases to proceed to the employer's duty to accommodate, and would allow a case-specific analysis to follow, the majority opts for a more restrictive view of the Act that would allow the earlier termination of claims. Under the majority's view, the appropriate threshold is whether an employee is disabled or regarded as disabled in a \"major life activity.\" The court holds that seeking a particular job when other, less desirable positions in related lines of work might be available does not render an individual disabled in such a major life activity. More shockingly, the Court suggested that working is not even a major life activity.This article concludes by asking how this statute is different from other vaguely-worded statutes. The differences between the ADA and other statutes are its unfunded mandate quality, its lack of a bright-line standard, and its inability to spread the costs evenly across society. Ultimately, these difficulties can be traced to the incongruence of a primarily wealth-redistributive statute being imposed on to the form of a but-for discrimination statute.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"79 1","pages":"307"},"PeriodicalIF":0.0,"publicationDate":"2000-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67983618","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":"Rustic Justice: Community and Coercion under the Federal Arbitration Act","authors":"K. Stone","doi":"10.31228/osf.io/6g7e3","DOIUrl":"https://doi.org/10.31228/osf.io/6g7e3","url":null,"abstract":"Arbitration clauses are appearing in a wide variety of consumer transactions, including routine product purchase forms, residential leases, housing association charters, medical consent forms, banking and credit card applications, and employment handbooks. In the past fifteen years, the Supreme Court has reinterpreted the Federal Arbitration Act (FAA) so as to grant tremendous deference to private arbitral tribunals. By doing so, it has altered the landscape of civil litigation, taking many consumer claims out of the legal system and relegating them to private tribunals. In this Article, Professor Stone assesses the recent trend toward the privatization of civil justice in light of the history of the FAA. The author finds that the FAA, when enacted in 1925, embodied a vision of voluntarism, delegation, and self-regulation within the business and commercial communities. Arbitration under the FAA was conceived as an institution that reflected and defined membership in a shared normative community. She criticizes recent judicial interpretations that condone the use of arbitration to resolve disputes between individuals and entities who, far from sharing in a common normative community, occupy vastly different positions of power vis-a-vis each other. These expansive interpretations facilitate the exercise of invisible coercion in many facets of contemporary life. To remedy the abuses of arbitration, the author proposes that courts adopt a two-tiered approach, in which the degree of deference they grant to arbitral proceedings would vary depending upon whether the dispute is between insiders to a self-regulating community or between an outsider and an insider.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"77 1","pages":"931"},"PeriodicalIF":0.0,"publicationDate":"1999-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639576","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":"Hospital ethics committees as the forum of last resort: an idea whose time has not come.","authors":"R F Wilson","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"76 2","pages":"353-406"},"PeriodicalIF":0.0,"publicationDate":"1998-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24088327","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":"Corporate Governance and Managerial Incompetence: Lessons from Kmart","authors":"D. Smith, D. G. SMIm","doi":"10.2139/SSRN.10038","DOIUrl":"https://doi.org/10.2139/SSRN.10038","url":null,"abstract":"Modern corporate governance scholars often extol an activist role by institutional investors in directing corporate activity. Widely viewed as a solution to the \"collective action\" problems that inhibit such activism by individual investors, institutional investors are praised for adding value to corporations through their participation in the decision making process. The ouster of Joseph Antonini as Chief Executive Officer of Kmart Corporation in 1995 might be taken as a vindication of this view, because substantial evidence indicates that institutional investors played a crucial role in influencing Kmart's board of directors to remove him. In this Article, Professor Smith challenges this potential reading of the events at Kmart and poses the fundamental question of whether institutional investor activism designed to address perceived incompetence among corporate managers consistently adds value to corporations in which such activism is present. Professor Smith analyzes the effect of internal and external forces on managers, particularly on Antonini and Kmart's directors, and derives two fundamental lessons: (1) External constraints are ineffective in solving managerial incompetence; and (2) Investor activism will often be counterproductive because it destroys the value of centralized decision making.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"24 1","pages":"1037"},"PeriodicalIF":0.0,"publicationDate":"1997-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.10038","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68120704","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":"Arising from the dead: challenges of posthumous procreation.","authors":"A R Schiff","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The medical capabilities derived from modern reproductive technology, such as in vitro fertilization and cryopreservation, have enabled physicians and scientists to intervene in the procreative process in innumerable ways. However, this intervention in the natural reproductive process raises both moral and legal concerns. In this Article, Professor Schiff explores some of the conflicts that may result when an individual or couple elects to cryopreserve gametes or embryos and subsequently, one or both of the contributors dies, or when gametes are harvested from a dead body. This Article will specifically address the moral and legal responses to circumstances where the decedent has either clearly expressed opposition to posthumous use of the reproductive material or else the decedent's intent regarding posthumous use of the material is ambiguous. By discussing philosophical and moral positions relating to personhood and the body and analyzing legal issues such as reproductive choice and organ donation, Professor Schiff creates the necessary format to examine and recommend the proper legal treatment of this controversial aspect of posthumous procreation.</p>","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"75 3","pages":"901-65"},"PeriodicalIF":0.0,"publicationDate":"1997-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22279414","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":"Taking Critical Tax Theory Seriously","authors":"L. Zelenak","doi":"10.1017/CBO9780511609800.062","DOIUrl":"https://doi.org/10.1017/CBO9780511609800.062","url":null,"abstract":"","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"76 1","pages":"1521"},"PeriodicalIF":0.0,"publicationDate":"1997-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CBO9780511609800.062","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57078973","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}