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.
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.
June 22, 2022 | Aislinn R. Klos
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.
June 22, 2022 | Anna Collins Peterson
May 29, 2022 | Michael E. Tigar
May 29, 2022 | Gene Nichol
May 29, 2022 | McKenna Jacquet-Freese
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.
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.
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.
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.
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.
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.
December 20, 2021 | Kimberly M. Cornella
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.
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.
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.
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.
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.
May 8, 2020 | James W. Whalen
Kevin Tully, a distinguished police corporal in Wilmington, North Carolina, was rejected for a promotion because he outsmarted his advancement test—the “correct” answers were based on outdated law, while Tully’s answers were up to-date. When Tully was denied an internal appeal of his test results, he turned to the North Carolina Constitution for help. For the first time, the Supreme Court of North Carolina interpreted article I, section 1 of the state constitution, which guarantees to every North Carolinian the “enjoyment of the fruits of their own labor,” to protect a fundamental right to pursue one’s chosen occupation in the public sector as well as the private sector. Across America, public employees suffer from stagnant wages, growing workloads, and political gamesmanship. They are largely denied rights guaranteed to private employees by federal employment and labor statutes and to other citizens by the federal Constitution. This Recent Development shows how state courts can “step into the breach” by extending similar state constitutional provisions to public employees.
May 8, 2020 | Chandler N. Martin
“What’s in a name?” When Shakespeare’s Juliet posed the rather forlorn question, she was undoubtedly not contemplating U.S. trademark law, but perhaps she should have been. As it turns out, quite a lot is in a name. While it is possible that “a rose [b]y any other name would smell as sweet,” everyone ought to be able to call the flower by its common, or generic, name. This notion is woven into trademark law, which prohibits trademark ownership and rights in generic terms. Such a mark belongs not to Juliet or Romeo, but to the general public. Yet, in the case of San Diego Comic Convention v. Dan Farr Productions, the United States District Court for the Southern District of California seemed to lose sight of this basic principle. The court addressed the question of whether an incontestable trademark, the mark “COMIC-CON,” could be challenged as void ab initio on the basis that the alleged mark had always been generic, thus invalidating its registration and incontestability status. The court failed to conclusively answer this question, though it strongly opposed allowing the argument that the “COMIC-CON” mark was generic ab initio to proceed.
May 8, 2020 | Alexandra L. Foulkes
Any debate about the effects of Lawrence v. Texas on American society notwithstanding, the Court’s opinion is a landmark in its own right. Lawrence’s logic placed an indelible mark on the Constitution’s central—though certainly elusive—protections of liberty. Particularly after Lawrence, substantive due process might amount to something beyond the sum of its parts. By defining liberty not merely as a collection of disconnected rights, but as a larger whole, Lawrence invites a more flexible substantive due process analysis. The foreseeable consequence of this flexible approach in fact manifested. Justice Scalia’s vision of Lawrence—that the decision would lead to a flood of litigation in the lower courts—materialized, at least to some extent, with litigants advocating for the recognition of new fundamental rights. But even Justice Scalia would never have included in his parade of horribles the most recent effort to expand liberty’s definition: a call for the recognition of a fundamental right to edit humanity. The argument for a fundamental right to edit humanity stems from the Court’s jurisprudence on procreative, parental, and privacy rights. The flexible language in Lawrence, too, lends its support. This Article asserts that a fundamental right to edit humanity should not be recognized. While not necessarily inconsistent with precedent, the arguments for the right to engage in therapeutic germline genome editing do not flow naturally from the Court’s previous holdings. Further, entitling parents to use GGE also poses insurmountable practical and policy-based obstacles. Most poignantly, the linedrawing method that has been proposed will prove intractable. And, in any case, our legislative and executive branches of government are far better positioned to handle the issues raised by germline genome editing than the courts.
December 9, 2019 | Brian Champion
Across the United States, vaccine exemption rates have been on the rise, leading to the reemergence of previously eradicated diseases, such as measles. This trend is reflected in North Carolina, where increased use of the vaccination law’s religious exemption can be tied directly to outbreaks of whooping cough and chickenpox. Importantly, North Carolinians have increasingly used the religious exemption to cover nonreligious beliefs. This Recent Development argues that North Carolina could and should amend its vaccination laws to repeal the religious exemption. Past Supreme Court precedent supports taking such an action, and doing so would help North Carolina better protect public and individual health throughout the state.
December 9, 2019 | Shannon Smith
The 2018 Farm Bill has signaled a sea change in hemp cultivation and sale in the United States. In addition to legalizing the crop and sketching out a framework for its regulation, the bill has brought some clarity to the legal status of cannabidiol, or “CBD,” a hemp-derived non-psychoactive compound that has become immensely popular in recent years. In the wake of the bill’s passage, however, the CBD market remains severely under-regulated, a state of affairs that threatens consumer safety and leaves businesses without assurance that their operations are legal. To ameliorate the present confusion, at least two significant regulatory issues must be resolved. The first concerns the U.S. Food and Drug Administration’s current, yet largely unenforced, position that the addition of CBD to ingestible products is illegal. The second involves the lack of guidance in the Farm Bill regarding the labeling of CBD products. After providing background on the history of hemp in the United States and detailing the 2018 Farm Bill’s regulatory framework, this Recent Development argues that the federal government must act quickly to fill the holes in the legislation. In the absence of swift federal action, it contends that states will need to address these questions themselves. Such action is necessary to ensure consumer safety and make certain that products and businesses can enter the CBD industry on solid legal footing.
December 9, 2019 | Gwen Barlow
In 1905, the United Daughters of the Confederacy’s James B. Gordon Chapter of Winston-Salem erected a monument to the Confederacy on the grounds of the Forsyth County Courthouse. The monument stood on Forsyth County property until 2014 when the Forsyth County Commissioners sold the old courthouse and the surrounding courthouse square to a real estate developer. After multiple instances of vandalism to the monument, the City of Winston-Salem ordered the United Daughters of the Confederacy (“UDC”) to remove the monument. The city and Forsyth County believe that the UDC owns the monument. But, the UDC says that Forsyth County is the true owner. Regardless, the city removed the monument from the courthouse square in March 2019. Ongoing legal proceedings between the UDC and the city, county, and current property owner focus on the question of whether the city is allowed to remove the monument under a state law that prohibits the permanent removal of objects of commemoration. This Recent Development argues that determining the owner of the monument is an essential threshold question and finds that Forsyth County owns the monument using two theories: the common law of gifts and constructive ownership via government speech.
December 9, 2019 | William W. Nelson
In 2017, the Supreme Court of North Carolina rendered its decision in Fidelity Bank v. North Carolina Department of Revenue. The issue presented in that case was whether the word “interest” as used in the North Carolina Revenue Act (the “Revenue Act”) should be construed in accordance with the meaning given the term in the Internal Revenue Code (the “Code”). The court held that absent a “clear and specific reference” in the Revenue Act to the Code’s definition of “interest,” that definition did not apply, and the term must be construed in accordance with its plain meaning. While the narrow issue in Fidelity Bank was the interpretation of a single word, the case shines a revealing light on a large and important question: to what extent do federal tax rules control the outcome of North Carolina tax controversies? That question is important because taxpayers and the North Carolina Department of Revenue (the “Department”) share an interest in knowing what law governs a given case. More broadly, the answer to this question has important consequences for the state’s ability to prevent the erosion of its “concurrent and coequal authority” over the taxing power within our federal system.