From December 2022 to June 2023, Volume 101 of the North Carolina Law Review Forum published four articles, an essay, a comment, and five case briefs, covering various recent developments in the Fourth Circuit and North Carolina. The Executive Forum Editor was Dylan R. Blackburn, and the Forum Editors were Kate Elizabeth Giduz and Tyler J. Ventura.
ARTICLES
REIMAGINING LANGDELL’S LEGACY: PUNCTURING THE EQUILIBRIUM IN LAW SCHOOL PEDAGOGY
Rachel Gurvich, L. Danielle Tully, Laura A. Webb, Alexa Z. Chew, Jane E. Cross & Joy Kanwar | June 2023
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.
THE RIGHT TO AN IMPARTIAL JUDGE AND “INVOLUNTARY RECUSAL”
John V. Orth | March 2023
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.
CITATION, SLAVERY, AND THE LAW AS CHOICE: THOUGHTS ON BLUEBOOK RULE 10.7.1(d)
David J.S. Ziff | March 2023
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.
DEMOCRATIZING EMERGENCIES: THE LOCAL PREDICAMENT
Kelly J. Deere | December 2022
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.
ESSAY
THE LONG AND WINDING ROAD: THE LEANDRO CASE SAGA CONTINUES
Judge Robert F. Orr | August 2023
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.
COMMENT
FREEDOM OF UNFORMED ASSOCIATION
Michael S. Wilson | June 2023
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.
CASE BRIEFS
COMMITTEE TO ELECT DAN FOREST V. EMPLOYEES POLITICAL ACTOIN COMMITTEE
Kate Giduz | January 2023
The “thorny thicket” of standing is a “tortuous track”—a track that the Supreme Court of North Carolina has tried to avoid. At a constitutional minimum, federal standing requires three elements: “First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”
State standing, however, can be more permissive than federal standing. While some state courts have explicitly addressed standing under their state constitutions, until 2021, North Carolina had not directly addressed what the North Carolina Constitution requires for a plaintiff to enter the “courthouse doors.” In Committee to Elect Dan Forest v. Employees Political Action Committee, the Supreme Court of North Carolina finally confronted this question. In doing so, it held that the North Carolina Constitution does not require injury in fact, and it eliminated proof of injury in fact as a prerequisite for statutory standing. The court held that as long as a plaintiff has a cause of action under a statute, and as long as their interests are injured or they are in the class of persons that the statute aims to protect, “the legal injury itself gives rise to standing.”
IN RE TRIANGLE CAPITAL CORPORATION SECURITIES LITIGATION
Ian Maddox | January 2023
Although Rule 10b-5, a regulation promulgated by the U.S. Securities and Exchange Commission, provides an implied private remedy for securities fraud claims, this remedy does not follow explicitly from any legislative enactment. Instead, private 10b-5 claims are a judge-made innovation. As the Supreme Court noted in Blue Chip Stamps v. Manor Drug Stores, “[w]hen we deal with private actions under Rule 10b-5, we deal with a judicial oak which has grown from little more than a legislative acorn.” Judges have taken the liberty to mold this judicially implied private right of action, imposing various requirements throughout its jurisprudence. One such requirement is scienter, the “intent to deceive, manipulate, or defraud.” In response to the growing volume of securities fraud claims, Congress passed the Private Securities Litigation Reform Act of 1995 (“PSLRA”). Among other things, the Act imposed heightened scienter requirements for bringing 10b-5 claims.
In a recent Fourth Circuit case, In re Triangle Capital Corp. Securities Litigation, the court analyzed the updated requirements for scienter in 10b-5 actions, adopting—and adapting—much of the doctrine formulated by the Supreme Court and the PSLRA. Though the court purports to apply the same test as the Supreme Court, the Fourth Circuit’s application of the scienter standard seems to require a greater quantity of evidence than the standard contemplated by the Supreme Court. Moreover, the Fourth Circuit’s analysis reveals several factors of interest in determining the presence of fraudulent intent.
Ian Maddox | January 2023
While Title VII1 and 42 U.S.C. § 1981 both provide causes of action for employment discrimination, their respective paths to recovery are distinct and limited. Title VII limits its antidiscrimination and antiretaliation provisions to employees and the terms and conditions of employment. Comparatively, § 1981 only provides recovery for substantial interference with the right to contract, requiring courts to locate such a contractual benefit and relationship. Accordingly, a hypothetical illustrating the weak points of each provision would involve a situation of race-based discrimination in which an individual is a quasi employee whose employer provides an ambiguous contractual benefit. In Lemon v. Myers Bigel, the Fourth Circuit confronted these facts when a law firm denied short-term leave to an equity partner. The Fourth Circuit dismissed the claim, rejecting substantial evidence of racial animus and highlighting the shortcomings of these antidiscrimination provisions.
HEYER V. UNITED STATES BUREAU OF PRISONS
Pooja Ramchandani | January 2023
The ability to communicate with others is vital to one’s life fulfillment. However, before Heyer v. United States Bureau of Prisons (Heyer II), Deaf detainees were left with virtually no means to communicate with their fellow inmates and members of the Deaf community living outside of prison since they lacked access to videophone devices. In Heyer II, the Fourth Circuit became the first circuit court to rule that a Deaf detainee has a First Amendment right to communicate with the Deaf community outside detention walls, and thus requires access to a videophone device. In doing so, the Fourth Circuit acknowledged the need for more accommodating resources for the Deaf community. Additionally, the court emphasized the importance of Deaf culture and being able to communicate with the other members of the Deaf community.
In Heyer II, the Fourth Circuit reversed the district court’s grant of summary judgment for the Bureau of Prisons (“BOP”). Heyer first went to the Fourth Circuit Court of Appeals in 2017, when the court held that the district court erred by granting summary judgment for the BOP on Heyer’s First Amendment videophone claim. In his videophone claim, Heyer argued that, despite his confinement, he had a First Amendment “right to communicate with those outside the prison,” and given his “inability to communicate in written English,” the BOP’s refusal to provide him with a videophone device violated his First Amendment rights. However, after remand to the district court, the district court still ruled in favor of the BOP, causing Heyer to appeal once again to the Fourth Circuit. On January 13, 2021, the Fourth Circuit reversed the district court’s decision once more and held that Heyer has a First Amendment right to communicate with those outside of detention walls, specifically the Deaf community, and thus required access to a videophone device.
CHAZZ ROBERTS V. GLENN INDUSTRIAL GROUP, INC.
Margaret Hay | January 2023
Slowly but surely, some U.S. courts are increasing protections for LGBTQ+ individuals and eliminating stereotypes in laws based on sex and gender. A recent Fourth Circuit decision further expanded these civil rights protections in the context of employment. In May of 2021, the Fourth Circuit broadened the evidentiary routes available to plaintiffs establishing same-sex sexual harassment in the workplace in Roberts v. Glenn Industrial Group, Inc.
In Roberts, the Fourth Circuit analyzed whether the three Oncale v. Sundowner Offshore Services, Inc. evidentiary routes for proving same-sex sexual harassment were exhaustive as the district court previously held. Before Roberts, the Fourth Circuit had not published an opinion addressing the ways a plaintiff may prove a same-sex sexual harassment claim since the Supreme Court’s Oncale decision. Upon review, the Fourth Circuit vacated the lower court’s ruling of summary judgment in favor of the employer in Roberts’s same-sex sexual harassment claim and remanded for further proceedings. It held that plaintiffs “may prove that same-sex harassment is based on sex where the plaintiff was perceived as not conforming to traditional male stereotypes.” For support, the court relied upon the Oncale case as well as other circuit courts’ handling of same-sex sexual harassment cases.