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 Forum is committed to publishing pieces of special importance to practitioners in North Carolina. To that end, we especially invite submissions considering recent developments in the Fourth Circuit and North Carolina law. The Forum prefers submissions between 6,000 and 12,000 words, though will consider longer articles on an individual basis.
Volume 104
Volume 104 of the North Carolina Law Review Forum has published five case briefs and will continue to publish several articles over the coming year covering various recent developments in the Fourth Circuit and North Carolina. The Executive Forum Editor is Joy L. Aikens, and the Forum Editors are Mary Isabella Amico, William J. Etringer, and Joel E. Gillison.
CASE BRIEFS
RICKETTS V. WAKE COUNTY PUBLIC SCHOOL SYSTEM
Mary Anneliese Childs | December 2025
When sophomore Davina Ricketts ran for student council at Wake County’s William G. Enloe High School (“Enloe”), her goal was to increase the diversity in her school’s student leadership. Unfortunately, her efforts resulted in severe racial harassment from other students. When Davina turned to the school for recourse, she was met with indifference by the school district and administrators who did little to intervene and at times even seemed to contribute to the hardship she faced. Davina brought suit in the United States District Court for the Eastern District of North Carolina, alleging Title VI claims against the Wake County Public School System, the Wake County Board of Education, and various school administrators. The district court dismissed Davina’s complaint for failure to state a claim, leading her to appeal to the Fourth Circuit, which ultimately reversed. In holding that Davina sufficiently alleged deliberate indifference, retaliation, and equal protection claims, Ricketts v. Wake County Public School System marked the first time the Fourth Circuit recognized Title VI claims for student-on-student racial harassment.8 Ricketts thus opened the door for more comprehensive recourse when students face invidious discrimination in the very spaces designed to foster their growth, sense of belonging, and potential to succeed.
COURTHOUSE NEWS SERVICE V. SMITH
Kloee Mae Placke | December 2025
Being a licensed attorney and member of the Virginia Bar is a profound accomplishment that allows individuals the privilege of practicing law. Members of the Virginia Bar are granted the bonus of remote access to judicial records through a government program that ordinary citizens are not privy to. Virginia Code § 17.1-293(E)(7) allows lawyers with a Virginia Bar license to “skip the trip to the courthouse and view civil court records remotely” through the Officer of the Court Remote Access System (“OCRA”). Virginia implemented the OCRA system in 2012 at 105 courthouses as a way to provide remote access to nonconfidential civil court records. Individuals with OCRA access can view court documents remotely, twenty-four hours a day, seven days a week.
Though this is a great aid to lawyers, the limited access draws First Amendment scrutiny because only one group is given access to information, therefore limiting what information enters the marketplace. Courthouse News Service (“Courthouse News”) challenged this statute because it wanted remote access to court records in order to (1) “provide more comprehensive news coverage about new civil actions in all or most of Virginia’s Circuit Courts” and (2) reduce cost of travel and waiting time for reporters covering the courts. Courthouse News primarily publishes on “law, cases, major rulings, trials, [and] arguments and opinions within the state and federal courts.” On average, its reporters can cover five courthouses out of Virginia’s 120 circuit courts on a daily basis because of time and costs, so having remote access to documents would allow its limited number of reporters to reach more courthouses and report more news. The case was eventually reviewed by the Fourth Circuit Court of Appeals.
The Fourth Circuit in Courthouse News Service v. Smith held that Virginia Code § 17.1-293(E)(7), restricting the benefit of OCRA to only designated parties, is constitutional under the First Amendment because the statute “resembles a time, place, and manner regulation” as opposed to a content-based restriction. In doing so, the court created a barrier for reporters in an already- shrinking media field.
Payne Walton | December 2025
In certain instances of legislative and regulatory ambiguity, courts exercise increased interpretative power over a piece of legislation. For example, when the plain meaning of a statute is unclear, courts may go beyond the text, interpreting the purpose and intent of the legislature when the statute was enacted. Similarly, in a regulatory context, not every interpretation by a state agency is deserving of deference. In Philip Morris USA v. North Carolina Department of Revenue, the Supreme Court of North Carolina relied on these principles of judicial interpretation to reject the application of the Export Credit Statute (“ECS”) by the North Carolina Department of Revenue (the “Department”).
In the aforementioned case, Philip Morris, a cigarette manufacturer, sought the right to carry forward unused tax credits from previous years under North Carolina’s ECS. Philip Morris generated more than $6 million of tax credits in 2005 and 2006. The company attempted to claim the excess credits in 2012, 2013, and 2014—purporting to carry forward the tax credits that were generated but not claimed in 2005 and 2006. The specific issue in the case is one of statutory interpretation. The ECS limits the “credit allowed” to be claimed under the statute to $6 million per year. If “credit allowed” is defined strictly as the amount of tax credits that can be claimed in a year, Philip Morris could still generate tax credits over the $6 million threshold in 2005 and 2006, and claim the excess credits in subsequent years. But, if “credit allowed” is defined broadly as the amount of tax credits that can be generated in a year, Philip Morris would be capped not only at claiming but at generating $6 million in tax credits per year, rendering its “carryforward” claims in 2012, 2013, and 2014 invalid.
The Supreme Court of North Carolina found that the term “credit allowed” was defined differently in two different subsections of the ECS, creating a statutory ambiguity. This ambiguity allowed the court to look beyond the plain language of the statute to consider the intent of the legislature. In doing so, the court concluded that the $6-million-tax-credit cap only restricted the amount of credits that can be claimed in a year, leaving the door open for taxpayers to generate credits beyond $6 million and claim the excess in subsequent years. Thus, the court sanctioned the generation of excess tax credits in 2005–2006 and the claim of those tax credits in 2012–2014.
William J. Etringer | December 2025
Though nearing extinction in the modern system of pleas, juries were often praised by the Founders. Thomas Jefferson famously described juries as “the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution.” Alexander Hamilton echoed that juries were either “a valuable safeguard to liberty” or “the very palladium of free government.” Coupling them with representative government more broadly, John Adams considered juries to be “the heart and lungs” of liberty, and the “fortification against . . . being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”
In State v. King, Jason William King’s jury trial right was unquestionably violated. After his trial, Mr. King was convicted of driving while impaired (“DWI”) and reckless driving. At sentencing, despite Section 20-179(a1)(2) requiring a jury to find aggravating factors, the presiding judge found three aggravating factors for the DWI in violation of Mr. King’s statutory right to a jury trial. Mr. King appealed to the North Carolina Court of Appeals, which vacated both convictions and remanded for new sentencing hearings. In doing so, the court of appeals refused to apply harmless error analysis to the trial court’s violation of Mr. King’s jury trial right under Section 20-179(a1)(2). The State appealed, arguing that the court of appeals should have applied harmless error analysis to the error.
The Supreme Court of North Carolina agreed with the State. The court reasoned that the statute did not expressly provide for structural error analysis, was only meant to comply with federal constitutional requirements, and mirrored a similar provision in the Structured Sentencing Act, which receives harmless error analysis. Justice Earls dissented.
D. McLean Campbell | December 2025
When the COVID-19 pandemic swept across the nation, governments responded by shuttering restaurants, coffeehouses, and retail shops to “stop the spread.” These closures, initially temporary, extended into months of dark storefronts, and “for lease” signs began to replace the names of once-favorite local spots. But in the years since, COVID has gradually slipped from our public memory, and businesses face more topical challenges like supply-chain disruptions and inflation. Not so for the owners of seventeen North Carolina businesses. Their experience with the pandemic remained largely uncertain until the state’s highest court handed down two companion decisions in late 2024.
In Cato Corp. v. Zurich American Insurance and North State Deli, LLC v. Cincinnati Insurance, business-plaintiffs sought coverage for COVID-related revenue losses. In Cato, the court dismissed the insured’s complaint for failure to state a claim, but in North State, the court granted the restaurateurs’ claim for declaratory judgment. The difference? Zurich’s policy contained a viral contamination exclusion. Cincinnati’s did not. Viewed in isolation, these decisions offer routine applications of established insurance doctrine. Against the backdrop of cases holding for the insurer, however, Cato and North State reveal something significant: North Carolina courts’ willingness to apply interpretative principles faithfully—regardless of the potential consequences of doing so. That fidelity allowed the North State plaintiffs to recover what they deserved.