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Special-Education Litigation: An Empirical Analysis of North Carolina\u27s First Tier
Get PDFSpecial-education litigation begins, under the terms of the Individuals with Disabilities Education Act (IDEA), with an “impartial due process” proceeding. States enjoy limited discretion to establish the manner by which they will effectuate this process. Variations in implementation exist. Most states offer a “single-tiered” process, and eight offer a “two-tiered” proceeding.
National debate about the effectiveness of these administrative proceedings has increased over the last decade. One contested question is whether a single-tiered or two-tiered administrative process better serves the objectives of the Act.
Meaningful empirical examination of these specialized proceedings has begun to inform this debate, but significant research gaps remain. No quantitative study of these processes exists for many states’ systems, including for North Carolina’s, a system with a unique two-tiered process. This Article begins to fill this research void.
It offers an empirical evaluation of first-tier decisions issued over a 12-year period in North Carolina’s special-education due-process proceedings. It identifies statistically significant due-process implementation and outcome trends. It also evaluates the impact of factors intuitively believed to matter in these cases. Examples of variables considered include the availability of pre-hearing mediation, changes in relevant statutory standards, type of disability accommodated, age of the child at issue, type of school, setting in which the dispute arose (rural or urban), and petitioners’ representation status.
This analysis debunks some popular conceptions about these unique administrative proceedings, and it affirms the validity of others. It identifies one variable, legal representation during the first-tier review, as most significantly correlated with favorable outcomes for children with disabilities at this stage of litigation. Ultimately, it contributes new empirical data to the national conversation about outcomes of first-tier hearings in two-tiered due-process procedures under the IDEA
Access to Capital: Rethinking Local Crowdfunding
Get PDFAs a response to recent and possibly premature state action in passing local crowdfunding legislation, this Comment examines why states should exercise care in their choice of language and legislation when amending state securities laws to enable crowdfunding.
In order to understand the landscape of crowdfunding as a form of capital formation, it is imperative to understand generally how and why the states have turned to the enactment of legislation in order to aid small businesses in raising capital. Borrowed from the rewards-based model of crowdfunding, made most popular by Kickstarter and Indiegogo, investment crowdfunding is viewed as an innovative measure for raising capital that no longer relies upon the conventional institutions to provide funding for small businesses. These small companies may never elicit the attention necessary to induce investment from institutions most able to provide them with the capital they need, and so investment crowdfunding was born from this need to reach a broad audience, while also encouraging and facilitating investment from any and all who were financially capable of doing so
Mapping Inter-Organizational Boundary Bureaucracy and the Need for Oversight
Get PDFThe traditional paradigm of state and federal government envisions a neat separation between the legislative, judicial, and executive branches and between the public and private sectors. The heart of this Article explores the reality that some government agencies - particularly state agencies - have ambiguous and contested branch assignments and blurred hierarchical relationships with the private sector, and even other state agencies. When bureaucratic boundaries are blurred and ambiguous, an agency can become unhinged from laws that mandate transparency and accountability to the public it serves. This Article examines two state agencies -the North Carolina State Bar and the Board of Law Examiners - as examples of a regulatory model where autonomy and self-regulation are predominant features. Drawing upon original archival research, the Article traces how branch assignment ambiguity and self-regulation allowed each agency to drift from its original statutory mandate and evolve in unanticipated, and sometimes problematic, ways. After charting some of the negative effects of the way the agencies operate - including the Board of Law Examiners\u27 decades-long failure to engage in public rulemaking - the Article argues that the state legislature should clarify the relationships and duties of these agencies, the government branch to which they belong, and whether both agencies must meet certain minimum requirements of public participation. This case study is instructive for jurisdictions regulating occupations and professions through autonomous regulatory models, particularly for jurisdictions seeking to make an informed response to the Supreme Court\u27s federal antitrust law decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission, 135 S. Ct. 1101 (2015)
Decoding Eligibility Under the IDEA: Interpretations of “Adversely Affect Educational Performance”
Get PDFThe Individuals with Disabilities Education Act (IDEA) strives to provide children with disabilities equal access to free appropriate public education in order to prepare them for further education, employment, and independent living. The determination that a child qualifies as a “child with a disability” under the IDEA is a pivotal one in the child’s life and can drastically impact his/her future. Once found eligible, the child gains access to the spectrum of resources, safeguards, and benefits that the IDEA guarantees. The contours of the key that opens that door should be well-defined and clear. The IDEA standards for eligibility, however, are not. Specifically, one of the statutory requirements for eligibility is that the child must have an enumerated disability that adversely affects his/her educational performance. The terms “adversely affect” and “educational performance” are not specifically defined anywhere in the IDEA or the federal regulations. As a result, authorities are divided regarding what qualifies as educational performance and how adverse an effect must be in order to satisfy this requirement. The resulting inconsistencies have proven problematic. Narrow constructions of these terms by decision makers and state agencies frustrate the inclusive purpose and mission of the IDEA.
This Comment calls for clarity and consistency in these terms to the extent appropriate. While a nationally consistent definition of the term “educational performance” is not appropriate since formulation and execution of educational policy has historically been left to state and local authorities, this Comment argues that the IDEA establishes the baseline that “educational” at least includes more than just academics. Beyond that, the specifics should be determined by each state’s curriculum and educational policy. With respect to “adversely affect,” this Comment urges that an inclusive federal definition be adopted that comports with the purpose and goals of the IDEA
A Reckless Disregard for the Truth? The Constitutional Right to Lie in Politics
Get PDFIn the first presidential campaign following the controversial United States Supreme Court decision in Citizens United, much attention was given to the record amount of money spent on the election - close to $3 billion. Ideally, more money spent on campaigning would permit more speech and add to the public discourse, and allowing more speech would encourage and permit bad speech to be countered with good speech. In 2012, however, claims arose that the candidates were being more negative than ever, including resorting to outright deception.
Many states have laws on the books that prohibit knowingly false campaign speech on material facts when there is a showing of actual malice, but the impact of these laws is unclear. In 2012, in the midst of the discussion surrounding the negative or untrue campaign speech, the United States Supreme Court quietly denied certiorari to a case that held one such law unconstitutional. That same month, the Court decided Alvarez v. United States, which held that the government could not punish a person for knowingly telling a lie without a showing of actual harm. Ultimately, it seems that the Supreme Court’s actions are the death knell for the remaining false campaign speech statutes. Accordingly, this Article will argue that the Supreme Court needs to reconsider the protection for false speech. The Article forwards a new legal test that parallels the political speech doctrine with the commercial speech doctrine by giving less protection to knowingly false campaign speech
Shareholder Exit Signs on American and European Highways: Under Construction
Get PDFThis article discusses legal exit rights (referred to in the United States as appraisal rights and in civil law Europe as withdrawal rights), in the United States, France, and Romania. We selected these three countries because they are representative of strong, average, and weak capital markets, respectively, with varying levels of shareholder activism and litigation (high, normal, and low, respectively). In addition, the selection of these countries enabled us to compare the structure of legal exit rights in the United States and in Europe and, within Europe, between two politically, economically, and culturally sister countries (France and Romania) that nevertheless (and for no good reason) fundamentally diverge with respect to legal exit rights.
Until recently, this topic had not received much attention in literature or in practice. Now, in all three countries, it is raising passionate debates, albeit for different reasons, and we observed a recent and significant increase in the exercise of legal exit rights. In the United States, a phenomenon of appraisal activism has emerged, led by specialized and aggressive hedge funds. In France, shareholder activism, in general, is on the rise, and new regulations or proposals pertaining to legal exit rights have recently been adopted or are currently being debated. In Romania, the second most important market was recently dissolved, a situation that has triggered legal exit rights at hundreds of public companies.
The scope and procedures applicable to the exercise of legal exit rights differ greatly in the three countries analyzed. That was easy to conclude. While comparative law scholarship often has a tendency to emphasize differences between jurisdictions, we join an emerging trend in comparative law scholarship by choosing to focus on similarities. Consequently, the more difficult part of our analysis was to bring together, under an umbrella of common terminology and concepts, very different institutions, having separate sources and historical backgrounds. We offer a common language and a general analytical framework for legal exit rights, from the pragmatic perspective of current practitioners in each of the countries surveyed. In doing so, a certain extent of deliberate imprecision and generalization was unavoidable. At the end of this process, and within the analytical framework created, we found that numerous similarities in the regulation of legal exit rights exist in these three countries. We explored the identified similarities, which should allow each country to benefit from the experience of the others.
In particular, our analysis indicates that the scope of legal exit rights for public companies is not correlated to the strength of the capital markets, and that shareholders are granted a broader scope of legal exit rights in private companies than in public companies (with the exception of France). It also indicates that there is extreme variation regarding exit rights for limited liability companies (almost exclusively contractual in the United States and France, while broad legal exit rights exist in Romania), and that there is generally less state intervention and more contractual freedom regarding the determination of the fair price with respect to companies other than joint stock companies. Moreover, it indicates that the frequency of use of legal exit rights is not proportional to the level of shareholder litigation
Why Aren\u27t You Working? Medlin with Proof of Disability Under North Carolina Workers\u27 Compensation Act
Get PDFIndividuals hurt on the job face potential uncertainty about their eligibility for benefits under the North Carolina Workers\u27 Compensation Act. Whereas the state\u27s courts historically interpreted the law as allowing an injured worker to prove loss of wage-earning capacity following a work injury without any regard to overall economic conditions, the North Carolina Supreme Court recently announced the demise of this absolutist rule in Medlin v. Weaver Cooke Construction, LLC and articulated a new rule allowing overall economic conditions to affect an injured worker\u27s claim of disability, at least in some circumstances.
The supreme court was wrong to adopt this change, as this Article explains. That said, the North Carolina Court of Appeals and the North Carolina Industrial Commission, the administrative agency charged with administering the workers\u27 compensation laws, are bound by the supreme court\u27s decision. The second purpose of this Article, therefore, is to fill a significant gap left by the supreme court\u27s recent decision by addressing when and how injured workers must concern themselves with the possible effects of overall economic conditions on their post-injury ability to earn wages. These issues went unaddressed by the supreme court in Medlin, and this Article attempts to fill in these details by suggesting a burden-shifting framework to govern adjudication of disputes over whether economic conditions-and not a work injury-are the cause of an individual\u27s loss of wage-earning capacity. This framework is consistent with the supreme court\u27s decision in Medlin, but also prevents the workers\u27 compensation system from becoming unduly hostile to people hurt on the job and in need of help
Out of Bounds: Commerce Clause Protection from State Antitrust Statutes for Regional Athletic Conferences
Get PDFCollegiate athletic conferences generate billions of dollars annually. With conferences competing for $300 million plus television contracts, it has become increasingly important that conferences align themselves with the highest quality institutions possible. As a result, individual institutions have shifted from one conference to another with hopes of cashing in on higher revenue opportunities. The regional athletic conferences that govern these individual institutions are different from most commercial actors because their very nature requires that they be regulated on a national/regional level if they are to exist at all. Each member of a conference voluntarily agrees to be bound by the conference’s constitution and by-laws. As such, it is imperative that the by-laws and rules be applied uniformly across the conference in order to have any possibility of functioning effectively.
However, subjecting regional athletic conferences to state antitrust laws imposes an excessive burden on the conference without a corresponding local benefit. If regional athletic conferences were subject to state antitrust claims, the member institution’s state with the strictest antitrust laws would effectively regulate the activities of the member institutions in other states. In effect, a conference would be stripped of its ability to freely adopt and enforce its own procedural regulations. To avoid these burdens, regional athletic conferences should be able to seek protection by invoking the dormant side of the Commerce Clause in the face of state antitrust claims. The trajectory of case law on the subject suggests that it is logical that regional athletic conferences should enjoy the protection of the dormant Commerce Clause