Forum

The North Carolina Law Review Forum, the journal’s online publication, is a space for speedy dissemination of timely articles and op-eds by academics, judges, practitioners, policymakers, and law students, as well as for lively discussion and responses to articles published in North Carolina Law Review. The NCLR Forum is committed to publishing pieces of special import to practitioners in North Carolina. As such, we especially invite submissions considering recent developments in North Carolina law and in the Fourth Circuit.

The NCLR Forum prefers submissions between 6,000 and 12,000 words, including footnotes.

---

FOR PUBLIC OFFICIALS, SOCIAL MEDIA IS PUBLIC MEDIA

October 13, 2024 | C. Amanda Martin

Once cutting edge, social media is now a commonplace, mainstream mode of communication for everyone from pop stars and presidents to airlines and clothing brands. Defining the rules of the road for elected officials on social media has been fraught with ambiguity. The U.S. Supreme Court recently decided two cases addressing whether Section 1983 provides a right of access by the public to the social media accounts of public officials, but the Court’s guidance falls short of creating easy-to-apply, bright-line rules. This Article explores the application of North Carolina’s Public Records Law to social media posts by public officials and to comments from citizens on the social media accounts of those officials. Given the breadth of the public records law and the strong statutory construction in favor of access, the Article argues that public officials should not be permitted to block citizens from social media accounts on which the officials discuss public business and that they should not be permitted to delete comments about public business that have been posted by citizens. The Article maintains that clear guidance through well-defined policies is crucial for compliance by public employees and officials and that the existing framework of the Public Records Law can serve as a template for those rules.

POPULAR SOVEREIGNTY, DEMOCRATIC EQUALITY, AND THE PAST AND FUTURE NORTH CAROLINA CONSTITUTION

July 30, 2024 | Samuel Davis

In recent years, the Supreme Court of North Carolina has been called upon—again and again—to answer fundamental questions about the nature of democracy and the structure of North Carolina’s constitutional system of government. Perhaps unsurprisingly, the court’s answers have changed along with its partisan composition. This Essay examines one major jurisprudential fault line that has consistently divided the Democratic and Republican justices: how to harmonize the principles of popular sovereignty and democratic equality, which are both inscribed in the state constitution’s Declaration of Rights.

The principle of popular sovereignty requires deference to the state legislature as the sole branch of government authorized to exercise the People of North Carolina’s sovereign authority, the exclusive source of political power in the state. The principle of democratic equality requires that all North Carolinians be afforded an equal opportunity to participate in the political processes through which the People’s sovereign power is transferred to their representatives. In cases where the two principles have come into tension—where litigants have sought to invalidate legislative actions by demonstrating the exclusion of one group from the voting process—Republican justices have emphasized the need for deference to legislative prerogatives, while Democratic justices have emphasized the need to carefully scrutinize the underlying political process. This Essay examines the principle of democratic equality and suggests that it provides a foundation for a progressive state constitutionalism in North Carolina. This approach to the North Carolina Constitution pays heed to the profound legal transformation that occurred with the enactment of North Carolina’s Reconstruction-era constitution, which made baseline political equality among North Carolinians of all races a prerequisite to the legitimate exercise of the People’s sovereign political power. The Essay concludes by recounting how Democratic justices breathed life into this promise of meaningful equality in two landmark decisions—Harper v. Hall, which considered whether partisan gerrymandering violated the state constitution, and NAACP v. Moore, which addressed the authority of a racially gerrymandered legislature to amend the constitution.

POLITICS AND THE SUPREME COURT OF NORTH CAROLINA

May 25, 2024 | Gene Nichol

This Essay explores three decisions by the Supreme Court of North Carolina, issued on April 28, 2023: Harper v. Hall, Holmes v. Moore, and Community Success Initiative v. Moore. The rulings present marked and purposeful departures from earlier holdings on voting rights in North Carolina. Beyond that, they claim to announce a broad course correction in the enforcement of state constitutional law—purportedly returning to a decidedly more modest vision of judicial review, deferring powerfully to a legislative supremacy rooted in a determination that the North Carolina General Assembly is the State’s “great and chief department of government.” The alteration is demanded, according to the opinions, to separate judicial review from partisan politics and the personal ideologies of the justices, assuring that the “people alone,” not liberal judges, have the final say. I argue here that precisely the opposite is true. The cases do launch a new era in North Carolina judicial review—but not one that separates law from politics. Instead, the new Supreme Court of North Carolina has shown that it will operate, simply, as an enabling caucus of the Republican Party, abandoning obligations of judicial independence and the rule of law in favor of political subservience. In the process, the justices wound democracy and forfeit the mission of constitutional justice.

RELOCATING THE COMMUNITY REINVESTMENT ACT

April 8, 2024 | Adam Feibelman

The Community Reinvestment Act was enacted in 1977 to address the failure of financial institutions to provide credit and financial services in low-income communities, especially Black neighborhoods. The Act is part of a family of legal regimes, including the Home Mortgage Disclosure Act and the Equal Credit Opportunity Act. Congress transferred authority and responsibility for those regimes and other consumer financial laws to the Consumer Financial Protection Bureau in the Dodd-Frank Act of 2010, but it did not transfer the CRA. The reasons for this are, thus far, lost to history. It turns out that early versions of what became Dodd-Frank would have transferred the CRA to the Bureau. And a number of consumer and community advocates argued in favor of transferring the CRA at the time. This Essay excavates that legislative history and revisits the question, proposing that U.S. policymakers should seriously consider transferring authority for the CRA to the Bureau. It argues that the Bureau would likely be a better steward of the CRA than the financial regulators; that authority and responsibility for the CRA, the Home Mortgage Disclosure Act, and the Equal Credit Opportunity Act should not be divided among different regulators; and that implementing and enforcing the CRA would beneficially expand the scope of the Bureau’s mission and function.

WHO SPEAKS FOR THE STATE? EXAMINING THE CONSEQUENCES OF BERGER V. NORTH CAROLINA STATE CONFERENCE OF THE NAACP

January 12, 2024 | Lizzie Wallace

When North Carolinians vote for their attorney general, they select the candidate who can best represent their state in the courtroom. But the U.S. Supreme Court in Berger v. North Carolina State Conference of the NAACP upended this common understanding of the attorney general’s job. Instead of trusting the executive branch to execute and defend the state’s laws, the Court permitted two state legislators, supported by partisan outside counsel, to represent the entire State of North Carolina in nearly any litigation that could arise. Such a major grant of executive power to the legislature ignores the state constitution’s strict separation of powers mandate, which protects each branch from seizure of power by the others. This Article discusses the impacts of the Berger decision. First, taxpayers will bear significant costs as the North Carolina General Assembly pays outside attorneys to litigate for the State rather than using apolitical career staff at the North Carolina Department of Justice. Second, litigation will become increasingly polarized as the General Assembly employs hyper-partisan counsel or uses pro bono support from ideologically extreme nonprofits. Polarization in the state is only furthered by the Court’s characterization of the state attorney general as a pure partisan player rather than a legal advocate for all North Carolinians. And finally, this Article examines the Court’s growing deference to state legislatures as supposed bastions of democratic values despite evidence that these bodies are the least democratic branch in most states across the country. While Berger specifically applies to North Carolina, its implications extend to all purple states grappling with emboldened legislatures poised to make similar power grabs.

THE LONG AND WINDING ROAD: THE LEANDRO CASE SAGA CONTINUES 

August 29, 2023 | Judge Robert F. Orr

I have been asked by the North Carolina Law Review to submit this essay reflecting on the Leandro Case from the perspective of the only person to have participated in the first two opinions issued by the Supreme Court of North Carolina. Thus, this will serve more as a personal reflection on the case than as a scholarly article normally published by the Law Review. Since my retirement from the court in 2004, I have not formally participated in the ongoing saga of the longest running case in North Carolina jurisprudential history. I have certainly followed the case through all its iterations since then. In fact, several months ago I found myself back in the courtroom at the Supreme Court of North Carolina for the next—and some would hope—final chapter of the case. Much has changed since that first oral argument there in 1996, when I was a relatively new justice on the court. And yet, much hasn’t changed. But isn’t that the issue? Had this case been the basis for a reality TV series, I have no doubt that as the clerk gaveled the court into session with the seven justices filing in, the background music would have to be the Beatles’ 1970 Number 1 hit, “The Long and Winding Road.” Yes, Leandro has traversed a long, long road since those early days, and that road has certainly been a winding road, one full of twists and turns, different personalities, both on and off the bench, and a changing political and educational landscape across the state. Is the end of that long and winding road in sight? Only time will tell. 

FREEDOM OF UNFORMED ASSOCIATION

June 19, 2023 | Michael S. Wilson

The First Amendment freedom of association protects political associations from the chilling effects of required disclosures of their members’ identities. Broadly, this freedom protects the ability to “join with others to further shared goals” as a critical part of the political process. As essential as these associations are, their formation has not been protected because the U.S. Supreme Court has required an association to show “actual harms” to its members in order to trigger freedom of association protection. This requirement has prevented the application of such protection to the stages of the associational process that occur before associations are formed. Thus, the spaces where members of dissident communities meet and congregate—in order to identify shared advocacy interests and form associations—have not been protected from the chilling effects of identity disclosure requirements.

This protection may now be possible under a new standard set by Americans for Prosperity Foundation v. Bonta in 2021. By establishing a lower threshold—requiring only a “risk of a chilling effect” on the “ability to join with others to further shared goals”—in order to trigger freedom of association protection, the Court appears to have opened the door to protect preassociational activity. Such an expansion of the freedom of association may now protect the physical and virtual spaces where associations are formed.

As states across the country consider “drag bans” and other measures that seek to place various new restrictions on the spaces where queer people gather,  enforcement of these restrictions could result in the disclosure of patrons’ identities. Supported by a review of a century of government suppression of queer association, this Comment argues that such disclosures could create a “risk of a chilling effect” on the formation of associations and thus may now be unconstitutional. As the constitutionality of new restrictions imposed on queer spaces is challenged, the freedom of association may offer a new avenue for protecting these spaces and their patrons.

REIMAGINING LANGDELL’S LEGACY: PUNCTURING THE EQUILIBRIUM IN LAW SCHOOL PEDAGOGY

June 3, 2023 | Rachel Gurvich, L. Danielle Tully, Laura A. Webb, Alexa Z. Chew, Jane E. Cross & Joy Kanwar

For more than 150 years, legal education has largely followed the course charted by Christopher Columbus Langdell when he became dean of Harvard Law School in 1870. Langdell’s innovations included the case method, high-stakes summative assessments, and preferences for faculty members with experience in “learning law” rather than practicing it. His proposals were innovative and responsive to challenges in legal education at the time, but this Article argues that taking Langdell’s approach to reform—including a willingness to implement radical changes in the face of institutional shortcomings—requires reimagining his methods for the benefit of today’s students. We identify key deficiencies of the Langdellian method, which was devised for a different set of students and at a time when we knew far less about how people learn. And we propose reforms, recommending inclusive course design that encompasses a broad range of competencies for a broad range of practices and inclusive pedagogical practices in both teaching and assessment. We also encourage all members of the law school community to share responsibility for implementing these reforms rather than relying on only a few “front-line” faculty and staff.

CITATION, SLAVERY, AND THE LAW AS CHOICE: THOUGHTS ON BLUEBOOK RULE 10.7.1(d)

March 24, 2023 | David J.S. Ziff

Today, more than 150 years after the end of the Civil War, lawyers and judges continue to rely on antebellum decisions that tacitly or expressly approve of slavery. This reliance often occurs without any acknowledgement of the precedent’s immoral and legally dubious provenance. Modern use of these so called “slave cases” was the subject of Professor Justin Simard’s 2020 article, Citing Slavery. In response to Professor Simard’s article, the latest edition of The Bluebook includes Rule 10.7.1(d), which requires authors to indicate parenthetically when a decision involves an enslaved person as a party or the property at issue. Unfortunately, Rule 10.7.1(d) applies only to academic writing—journal articles authored by law professors and students. It therefore does not address the moral and dignitary harms that result from courts’ and lawyers’ use of slave cases to invoke the legal force of the state. Courts themselves, therefore, must decide whether to require a parenthetical for slave cases. As it should be. Courts, not a student-written style guide, are responsible for addressing the judiciary’s connection to slavery. That responsibility counsels in favor of adopting Rule 10.7.1(d) as a tool to prompt lawyers and judges to carefully consider—and perhaps forgo—continued reliance on slave cases.

THE RIGHT TO AN IMPARTIAL JUDGE AND “INVOLUNTARY RECUSAL”

March 24, 2023 | John V. Orth

In the appeal of North Carolina State Conference of the NAACP v. Moore, a preliminary motion called for the disqualification of two associate justices of the Supreme Court of North Carolina because of claimed conflicts of interest. This Article examines the source of the right to an impartial judge and considers the motion for disqualification in Moore as a matter of state constitutional law. This Article proceeds in two parts. The first part explores the history of the right to an impartial judge both as a common law right and as a constitutional right. It concludes that there is a common law right to an impartial judge and that the right to an impartial judge, although not expressly enumerated in either the federal or state constitution, is an included right in the constitutional right to due process. The second part examines the constitutionality of disqualifying justices without their consent (“involuntary recusal”), as well as the order of the Supreme Court of North Carolina in Moore, which allowed each justice the choice of making the decision to recuse or referring the decision to the entire court. It concludes that the court lacks the constitutional authority, whether on the motion of a party or on the referral of an individual justice, to disqualify a sitting justice from participating in the hearing and decision of an individual case.

DEMOCRATIZING EMERGENCIES: THE LOCAL PREDICAMENT

December 29, 2022 | Kelly J. Deere

Disasters are typically local events—even in a pandemic. Throughout 2020 and into 2021, state governors used their emergency powers to issue stay-at-home orders, close nonessential businesses, and ban mass gatherings for religious services. However, during the COVID-19 pandemic it was local government that reacted more quickly in the beginning and continued to act into early 2022 when many state governments refused to consider social mitigation measures to curb transmission, despite a national surge of nearly a million cases per day. For citizens who desire their state government to do more in an emergency, local government often fills that gap. While these local cities and counties are enacting measures, like school mask mandates, in direct response to local public health metrics, many have faced resistance from their state. Some states have banned local authorities from enacting certain mitigation measures and have aggressively sought to restrain those local authorities from defying these bans through litigation and fines. While red states preempting blue-city laws is not new, some of the states’ bans are more brazen in method and more obstructing in outcome. This new form of “obstructing preemption” places local officials in an untenable predicament. Charged with providing for the health, safety, and education of its citizens, local government cannot carry out its duties if state government removes critical public mitigation tools from its toolbox in a public health emergency.

This Article highlights the urgent need for local government to fully respond in an emergency and the most important problems facing proponents of responsive regulation. This Article urges local government to continue to challenge state-placed limitations on local emergency orders. The Article further concludes: (1) that the state and federal courts can and should bolster the local governments’ legitimacy in their actions on either constitutional or statutory grounds; and (2) that governments should model themselves on those successful state-local partnerships, especially ones that
transcend party lines.

DELIBERATE PROTECTION OF CHILDREN OR INDIFFERENCE TO OUTCOMES: DEMINSKI‘S EXPANSION OF THE RIGHT TO A SOUND, BASIC EDUCATION

September 5, 2022 | Ralph William Meekins, Jr.

In Deminski v. State Board of Education, the Supreme Court of North Carolina considered whether repeated harassment and bullying denied students of their right to a sound, basic education. Plaintiff, representing her three minor children, argued that she could bring a claim under the North Carolina Constitution for the defendant school board’s deliberate indifference to the harassment. The court agreed with the plaintiff, and in an unprecedented move, expanded the right to a sound, basic education to account for structural deficiencies in the right and to ensure that North Carolina children have a meaningful opportunity to learn.

This Recent Development explores where the court broke ground under the state constitution and celebrates the goal of protecting children from bullying. At the same time, it argues that the court gave limited guideposts for analyzing whether a set of facts rises to the level of a violation and whether linking this right to the deliberate indifference standard serves North Carolina children or acts as a shield for responsible institutions.

601(C) BREEDS INJUSTICE IN WRONGFUL DEATH SUITS ARISING FROM ALLEGED MEDICAL MALPRACTICE

June 22, 2022 | Taylor Belknap

Dead man’s statutes were once a popular method to regulate the competency of witnesses and protect estates against fraudulent claims. By prohibiting individuals from testifying about conversations and transactions with a decedent, states effectively ensured that estates were not targeted by claims that were perhaps made in bad faith. The statutes, however, have been heavily criticized. Not only do the statutes usurp a jury’s role in assessing credibility of testimony, but any party or witness who aims to recover from the estate on the basis of a fraudulent claim will often attempt to do so regardless of their ability to testify. Finally, the statutes exclude evidence that may be probative, thus depriving the jury of the benefit to hear all testimony related to the dispute and delegitimizing any judgment reached.

In the face of this criticism, North Carolina opted to recodify its dead man’s statute as a substantively identical rule of evidence. While the general criticisms still apply, there are particular injustices that arise when the rule is applied in wrongful death suits arising from alleged medical malpractice. In such cases, the decedent’s estate is the plaintiff and thus does not need protection from the fraudulent claims that led to the enactment of dead man’s statutes originally. Instead, the rule as applied in these cases permits the plaintiff to bring suit but prohibits the defendant from testifying about their interactions with the plaintiff which, in medical malpractice suits, are the very interactions at issue.

In addition to the unique problems posed by the rule’s application in wrongful death suits arising from alleged medical malpractice, courts continue to misstate the rule, leading to further confusion among litigants. Although the best alternative is for North Carolina to simply repeal the rule as many other states have, the hearsay exception also poses an attractive solution. At bottom, this Recent Development explores a significant gap in North Carolina case law and aims to provide a path forward for confused litigants and judges alike.

THE SEPARATE OPINIONS OF JUDGE JAMES A. WYNN

June 22, 2022 | Aislinn R. Klos

JUDGE WYNN AND TECHNOLOGY

June 22, 2022 | Richard Pell

Judge Wynn stands out in the judiciary for his eagerness to gain a deep understanding of novel technological issues. In thirty years on the bench, he has maintained a focus on the effects of emerging technology on the law, particularly as technological advances impact civil liberties and reshape the balance of power between the individual and the state along demographic and socioeconomic lines.

BRING IN THE (RULE 53) REFS: HOW NORTH CAROLINA’S PROCEDURAL RUBRIC FOR RESOLVING MEDICAL REVIEW COMMITTEE PRIVILEGE DISPUTES IS AN IMPROPER SUBSTITUTE FOR SUBSTANTIVE REVIEW AND HOW RULE 53 CAN FIX IT

June 22, 2022 | Kelley Petcavich

North Carolina’s Hospital Licensure Act codifies a powerful evidentiary privilege, medical review committee privilege, that shields from discovery and introduction into evidence in civil actions the proceedings of a medical review committee, the records and materials it produces, and the materials it considers. In principle, the benefits of medical review committee privilege are universal—thorough and frank assessments of care rendered to patients by providers result in improved patient care outcomes, and providers can effectively evaluate and be evaluated by their peers. However, in practice, medical review committee privilege invokes competing public concerns. In an effort to reconcile the competing public concerns underlying medical review committee privilege, North Carolina courts have created a common-law procedural rubric delineating a two-part analysis to determine whether or not evidence may be afforded the protection of medical peer review. This procedural and mechanical analysis substitutes a meaningful, substantive review of evidence for which medical peer review is being invoked in exchange for a “substantive” evidentiary showing, which does a disservice to plaintiffs, defendants, and the public alike. This Comment explores how mandatory incorporation of Rule 53 of the North Carolina Rules of Civil Procedure in medical malpractice actions better serve not only the parties to malpractice actions, but the policies implicated by medical review committee privilege.

JUDGE WYNN, JUDICIAL CHOICE, AND § 1983

June 22, 2022 | Anna Collins Peterson

JUDGE JAMES A. WYNN, ORIGINALISM, AND THE JURIDICAL/JUDICIAL ROLE

May 29, 2022 | Michael E. Tigar

JUDGE WYNN AND THE ESSENTIAL SAFEGUARD OF INDEPENDENT FEDERAL JUDICIAL REVIEW

May 29, 2022 | Gene Nichol

JUDICIAL PRAGMATISM AND JUDICIAL CHOICE IN THE WORK OF JUDGE JAMES WYNN

May 29, 2022 | McKenna Jacquet-Freese

TRESPASSING ON WHITE SUPREMACY: THE LEGACY OF ESTABLISHMENT WHITE SUPREMACY IN NORTH CAROLINA

May 29, 2022 | C. Scott Holmes & Amelia O’Rourke-Owens

White supremacy offers a unifying framework for understanding the legal history of North Carolina, the current legal regime of the state, and the actions of the state in responding to protests demanding redress from that insidious history. We provide a history of the First Reconstruction in the state, the leading role of white lawyers in the subsequent reaction resulting in the codification laws advantaging white citizens over nonwhite citizens, and the continuities between the early Jim Crow legal regime and the legal reactions to current protests in the state. We explore three waves of recent protests in North Carolina in the context of this legal history: Moral Monday, Confederate monument removal, and Black Lives Matter. We argue these protests point to the reforms necessary to root out persisting institutionalized white supremacy in North Carolina. We describe the legal theories we used in defending protestors and our attempts to reconcile the promise of equal protection under the law with racially disparate treatment in the state’s institutions. In doing so, we add a universal constitutional lens to the criminal charges brought against protesters and attempt to name what has become an invisible force in interpretation of North Carolina’s history.

SATELLITE-BASED MONITORING IN NORTH CAROLINA AND BEYOND AFTER STATE V. GRADY

May 29, 2022 | Luke H. Everett & Glenn Gerding

North Carolina’s satellite-based monitoring program was held unconstitutional following the North Carolina Supreme Court’s ruling in State v. Grady. Although this ruling ended nearly seven years of litigation, it left unanswered questions for North Carolina and the many other jurisdictions that have enacted forms of satellite-based monitoring. After reviewing the rapid expansion of satellite-based monitoring in the United States, we explore some of these unresolved questions, such as whether satellite-based monitoring programs are reasonable in North Carolina and beyond. We then discuss avenues, such as consent to monitoring or monitoring as part of a criminal sentence, by which states can potentially create constitutional satellite-based monitoring programs. We conclude that the North Carolina General Assembly’s legislative response to satellite-based monitoring programs following Grady is a significant improvement over the prior system but still fails to pass constitutional muster.

ARE YOU NATIVE AMERICAN?

May 3, 2022 | Avery Locklear

Throughout history, our nation has been obsessed with the identity of various groups of people inhabiting the United States. Since the founding, Native Americans have been tasked with protecting the traditions and customs that shape their identity against colonized norms.

In the late 1800s, the Indian Major Crimes Act was created to further strip Native Americans, or “Indians,” of their identity and customs. However, the Act failed to define the term “Indian.” Decades of litigation have focused on the simple question: Who qualifies as Native American? The Supreme Court of North Carolina was the latest court to weigh in on this question. The court held that the question of who is a Native American is not limited to who is an enrolled member of a certain tribe. Instead, the court decided to consider a number of nonexhaustive factors to determine if an individual is “Indian” enough, even though Native American tribes have various membership requirements that encompass some of the factors that the court mentioned.

This Recent Development argues that the Major Crimes Act is an outdated relic of the past enforcing colonized ideals onto the modern Native American and that if courts are faced with answering the question of who is “Indian” for purposes of the Major Crimes Act, their inquiry should begin and end with tribal membership.

ENDING TEE-TOTAL CONTROL: PRIVATIZING LIQUOR SALES IN NORTH CAROLINA

January 24, 2022 | Ridge Mazingo

North Carolina has a long history of puritanical restrictions on alcohol sales. These restrictions—imposed in the name of “public safety”—often do little to protect the public and a lot to inconvenience consumers and businesses. This is the case with the government-run monopoly on liquor in North Carolina. While beer and wine can be bought and sold in gas stations and grocery stores, North Carolinians must purchase liquor at government-run liquor stores. In addition to retail sales, the government completely controls liquor prices, the wholesale acquisition of liquor, and its distribution in the state. This Comment explores how this system of control harms both entrepreneurs and consumers, runs counter to the ideals espoused in the North Carolina Constitution, defies common sense, and does nothing to protect public safety. This Comment also explores potential alternatives to the current system of control while keeping in mind the government’s primary motivation for maintaining control over the liquor system—revenue.

SINGLE MEDICAL LICENSURE APPROACH FOR PHYSICIANS PRACTICING INTERSTATE MEDICINE

December 20, 2021 | Ashley Maru

This Article explores and discusses the crucial legal and professional challenges of multistate licensure for physicians. Federal action is necessary to reduce the barriers to practicing medicine across state lines, especially considering the urgent need for patient care caused by the current COVID-19 pandemic. Modern advances in telemedicine give physicians the ability to deliver quality patient care throughout the United States. However, the current state medical licensure regime effectively prevents many physicians from delivering this care across state lines. Action at the federal level is necessary to lift the current state-based restrictions on the practice of interstate medicine so that efficient and effective medical care can be delivered to those in need nationwide. This Article advocates for the implementation of a single medical licensure approach for physicians practicing interstate medicine because it would effectively and almost immediately enable physicians, particularly those utilizing telemedicine, to deliver quality care to patients in need across the nation. Further, this Article calls for the enactment of federal legislation conditioning the receipt of certain state Medicaid funds on the general lifting of current state-based restrictions limiting the interstate practice of medicine as necessary to move the concept of single medical licensure forward.

STATE V. CARTER AND THE NORTH CAROLINA EXCLUSIONARY RULE

December 20, 2021 | Molly S. Petrey & Christopher A. Brook

The North Carolina Supreme Court’s decision in State v. Carter stands apart from modern federal jurisprudence in holding that Article 1, Section 20 of the North Carolina Constitution—North Carolina’s analog to the Fourth Amendment—does not permit a good-faith exception to the exclusionary rule. In other words, evidence collected in violation of North Carolina’s constitutional search and seizure protections is excluded from criminal proceedings, regardless of the good faith of the judicial officials and law enforcement officers involved in the case. In so holding, Carter exemplifies North Carolina’s general approach when interpreting state constitutional provisions with federal analogs—the persuasive lockstep. The persuasive lockstep approach considers federal jurisprudence highly persuasive but does not mechanically follow it, on occasion affording more robust constitutional protections pursuant to the state constitution. Controversial since its publication in 1988, Carter has been increasingly criticized over the past decade, from legislative calls for its reversal to recent North Carolina Court of Appeals opinions unpersuasively contending that it has been superseded by statute. Though its constitutional force remains plain for the moment, these recent developments call into question the fate of Carter as well as the means of constitutional interpretation it represents.

IS STATE V. HOBBS TOO LITTLE TOO LATE? BUILDING ON BATSON THIRTY-FIVE YEARS LATER

December 20, 2021 | Kimberly M. Cornella

A DEAL WITH THE DEVIL: REEVALUATING PLEA BARGAINS OFFERED TO THE WRONGFULLY CONVICTED

June 26, 2021 | Caroline H. Reinwald

Innocent defendants end up in prison at alarming rates, and once convicted, it becomes next to impossible for them to get out. Even equipped with exonerating evidence, defendants face an uncertain, often decades-long quest for freedom. In some cases, though, an alternative path has emerged: prosecutors pressure the wrongfully convicted to make an Alford or no contest plea in lieu of exoneration. Although this allows for their release, it carries grave consequences: their name is never cleared, and significantly, under Heck v. Humphrey, they can never pursue a civil rights claim for their wrongful imprisonment because their conviction was not “favorably terminated.” 

These plea deals are a menace to wrongful conviction claims, as this Recent Development explores through the Ninth Circuit case, Taylor v. County of Pima. Yet there is no wonder why prosecutors make them. Heck incentivizes these pleas as a way for municipalities to avoid civil liability for otherwise valid claims, and current ethical rules leave the door wide open to the practice, even though prosecutorial biases in this area are well established. Ultimately, this Recent Development argues that the use of these pleas should be dissuaded in two ways: first, through expansion of prosecutors’ ethical duties in actual innocence claims, and second, through courts’ reexamination of Heck’s favorable-termination requirements for civil rights suits. 

A NEW EXPLANATION FOR EQUITABLE TOLLING UNDER § 1983 AND THE PRISON LITIGATION REFORM ACT

June 26, 2021 | Rachel E. Grossman

Prison-conditions lawsuits are notoriously difficult for incarcerated litigants to win. Prisoners who challenge the conditions of their confinement must overcome complex procedural barriers to secure their day in court. Among these barriers, the mandatory-exhaustion requirement of the Prison Litigation Reform Act of 1995 can be both confusing and time consuming. Prisoners often spend months pursuing administrative remedies before gaining access to federal court. Recognizing this, the Fourth Circuit decided in 2019 that prisoners who diligently pursue administrative remedies may toll the statute of limitations for 42 U.S.C. § 1983 prison-conditions suits as a matter of federal equitable law. The Fourth Circuit’s decision ensures that compliance with the Prison Litigation Reform Act of 1995 does not diminish prisoners’ access to judicial relief. 

But the Fourth Circuit’s opinion also goes further than any other exhaustion-period tolling case decided before, fixing a rule adopted for various reasons by seven other circuits in the federal common-law doctrine of equitable tolling. This Recent Development examines the incoherence of the analyses in the jurisprudence between the Fourth Circuit and other circuits. It identifies two significant complications in the Fourth Circuit’s holding. First, the opinion leaves unaddressed the source of the court’s power to apply federal equitable law. Second, even assuming federal equitable relief was within the court’s power to provide, it is not clear that the Prison Litigation Reform Act of 1995’s exhaustion mandate is the kind of circumstance that would ordinarily warrant relief under the equitable tolling doctrine. By parsing and separately examining these issues, this Recent Development illuminates the Fourth Circuit decision’s strengths while identifying and buttressing its weaknesses. 

Seeing Green: North Carolina’s Clean Energy Plan, the Social Cost of Carbon, and a Way Forward Under a Least-Cost Framework

February 1, 2021 | Alexandra Franklin

In the absence of robust federal climate change policies, North Carolina is one of the numerous states that has taken the initiative to thwart future climate change impacts within its own borders. North Carolina’s Clean Energy Plan is a necessary step toward creating a carbon neutral utility sector, but for the Plan to be effective, North Carolina must address the fact that a public utility system designed to function by providing the least expensive energy options does not neatly transition into a clean energy future when it requires additional financial investments.

The Clean Energy Plan’s recommendation to require utilities to include the social cost of carbon into their integrated resource plans is enigmatic of this tension. By its nature, the social cost of carbon involves artificially heightening the cost of fossil fuel resources. Irrespective of one’s feelings toward carbon intensive resources, it must be acknowledged that the least-cost model cannot easily be served in the state when a utility is required to base its energy portfolio off of energy prices that do not reflect the direct and actual cost of the fuel source.

This Recent Development provides a way forward with a solution through which North Carolina’s Utility Commission can legally consider the environmental impacts of a fuel source when evaluating the prudency of a public utility’s future energy investments. By tackling the issue at the source—the statutory parameters under which the Commission must function—this Recent Development proposes a solution that will provide a broader base on which both environmental advocates and the state’s largest utility can pursue their clean energy goals.

Capital Punishment in North Carolina: A Justice’s View on Why We Can No Longer “Tinker With the Machinery of Death”

December 26, 2020 | James G. Exum, Jr.

North Carolina’s system for imposing the death penalty is arbitrary, infected with racial bias, and error-prone. It is time for our state to abolish it. This Article chronicles how I reached this conclusion after five decades in the law, including nearly thirty years on the bench, eight of which as chief justice of the Supreme Court of North Carolina. Throughout my judicial career, I struggled to ensure the death penalty conformed with the law. But legal safeguards failed to live up to their promise, and I have concluded that a reliable death penalty system is beyond the ability of human beings to devise.

As a state legislator in the late 1960s, I worked unsuccessfully to persuade my colleagues to abolish the death penalty because I thought it was bad public policy that taught the wrong lessons about the value of human life. As a judge, however, I thought the death penalty was constitutional, or could be made so, and that it was my duty to enforce it. But after reviewing hundreds of capital cases, I came to see that, despite our best efforts, the death penalty was not—and will never be—rationally reserved for only the worst defendants who commit the worst crimes. Decades of accumulated evidence now proves that North Carolina’s death penalty is unconstitutional and should be brought to an end.

Reflections on the DACA Cases in the Supreme Court–The “Illusion of Freedom”

July 17, 2020 | M. Isabel Medina

This essay explores the path that the DACA cases took to the Supreme Court, the dichotomy raised by the “good”-“bad” immigrant narrative—a narrative that President Trump has embraced—and how that narrative impacted the way the cases reached the Court. Although DACA recipients are the quintessential “good” immigrants, their fate is unlikely to be resolved by the Court’s decision in the DACA cases. Congress should act to grant DACA recipients, the living embodiment of the American Dream, a path to permanent residency and citizenship. But Congress should also address reform for those “bad” immigrants who bear the responsibility for deciding to migrate to the United States, in particular, the parents of the U.S.-citizen and permanent resident children. The national conversation about immigrants should reflect the reality of human life and abandon simplistic views of choice about migration and work that render those choices, at the heart of the human experience, criminal.