1412 research outputs found
Sort by
Statutory Waiver of Municipal Immunity upon Purchase of Liability Insurance in North Carolina and the Municipal Liability Crisis
Get PDFThis article will focus on ... what has been termed the liability crisis in local government. More particularly, this article examines the doctrine of municipal sovereign immunity in North Carolina, the statutory waiver of that immunity upon purchase of liability insurance, the emergence of the municipal liability crisis and the existence of at least partial solutions to the crisis through a proposed statute and competent risk management
Minor\u27s Personal Injury Actions and Settlements in North Carolina
Get PDFThis Article addresses the issues that are peculiar to claims of minors in North Carolina. Persons who are the age of majority prosecute and settle claims that raise numerous substantive and procedural issues. These issues can be compounded, however, when the claimant is a minor. The distinct issues that arise with a minor’s claim include: that a minor is often held to a different standard of conduct; that other persons are held to a higher or different standard of conduct toward a minor; that other persons may have a duty to protect the minor; that courts generally protect the interests of minors; that minors cannot enter binding contracts; and that injuries to minors typically create claims in other parties, for example, the minor’s parents. This Article addresses the settlement and litigation of these claims. While this Article focuses on claims arising from a personal injury to the minor, many of the same legal issues are also raised in other contexts in which the minor’s interests are affected. As shown by many cases cited in this Article, much of the case law in North Carolina addressing the procedures for settling and adjudicating minors’ rights has arisen in the context of a minor’s interest in an estate or real property
Anti-Evasion Doctrines in Constitutional Law
Get PDFRecent constitutional scholarship has focused on how courts - the Supreme Court in particular - implement constitutional meaning through the use of doctrinal constructs that enable judges to decide cases. Judges first fix constitutional meaning, what Mitchell Berman terms the constitutional operative proposition, but must then design decision rules that render the operative proposition suitable to use in the third step, the resolution of the case before the court. These decision rules produce the familiar apparatus of constitutional decision-making - strict scrutiny, rational basis review, and the like. For the most part, writers have adopted a binary view of doctrine. Doctrinal tests can defer or not to other actors; implementing doctrines can be fashioned as rules or standards; doctrines can over-enforce or under-enforce constitutional commands. In this Article, though, we unsettle this dialectical view of doctrinal design by identifying and describing anti-evasion doctrines (AEDs) in constitutional law: doctrines developed by courts - usually designed as standards, as opposed to rules - that supplement other doctrines (designed as rules) to implement particular constitutional principles.
AEDs touch all areas of constitutional law. In addition to being ubiquitous, AEDs have a long pedigree. Early examples appear in famous Marshall Court opinions; thus, they are not some modern innovation. In addition to naming AEDs, describing the forms they take, and discussing the characteristics the forms share, this Article also seeks to describe the benefits and costs to constitutional law resulting from AEDs, as well as their implications for doctrinal formation more generally.
We back our claim about the omnipresence and pedigree of AEDs in Part II with examples from a broad swath of constitutional law. AEDs supplement rule-like decision rules with decision rules that tend to resemble standards. In Part III we discuss the benefits of AEDs and the tradeoffs for doctrine in their widespread use. AEDs are designed to help optimize enforcement of constitutional principles - by addressing problems with rules, for example. This gap-filling function comes at a cost, however. Not only does the addition of AEDs tend to increase doctrinal complexity, but that complexity can also increase decision costs for courts and dilute the benefits of using rules in the first place. The tradeoffs are almost mirror images of the benefits.
We discuss the implications of AEDs for constitutional doctrine generally in Part IV. That they seem to be everywhere in constitutional law suggests that doctrinal complexity should be seen as a feature of our system, not a bug, because it attempts to ensure form will not trump constitutional substance. If a certain amount of complexity is inevitable, then that suggests one should be skeptical about claims that constitutional law could be rationalized by abandoning the \u27formulaic Constitution in favor of simple, predictable, and easy-to-apply rules. Further, the presence of AEDs furnishes strong evidence for Frederick Schauer\u27s convergence hypothesis, which holds that [w]hen authorised to act in accordance with rules, rule-subjects will tend to convert rules into standards by employing a battery of rule-avoiding devices that serve to soften the hard edges of rules, and vice-versa. Finally, highlighting the role AEDs play in constitutional doctrine, for good or ill, is another reason to take doctrine, its formation, and application by courts, seriously
When Should a Trial Judge Intervene to Question a Witness?
Get PDFNorth Carolina Appellate Courts on several occasions have ordered new trials in cases due to the improper questioning of witnesses by the trial judge. Nonetheless, other Appellate Court opinions hold that limited questioning by the trial judge is appropriate and even necessary to promote clarity and to expedite the trial. We should all agree that the underlying purpose of every trial is to arrive at truth in the case and thus attempt to do justice. Clarity promotes justice. If the judge recognizes confusion at trial, limited intervention and questioning is allowed. The question becomes how far and under what circumstances may the trial judge intervene? A trial judge may intervene in the situations listed below, as well as others, without being subject to reversal on appeal. As I discuss the problems and possible solutions to the question presented, one must keep in mind that, under North Carolina trial procedure, no judge is allowed to voice any opinion as to whether any fact is fully or sufficiently proven as that invades the province of the jury
Tax - Dependency Deductions for Paramours
Get PDFIn adhering to a constitutionally derived recognition of the states within the federal system, Congress has consistently deferred to the states in the regulation of marriage, family life and domestic affairs. In the application of the federal tax laws, Congress has demonstrated its respect for the individual states by the enactment of § 152(b)(5) of the Internal Revenue Code. This 1958 enactment denies a taxpayer an exemption for a dependent if the relationship between the claimed dependent and the taxpayer violates local law. In Ensminger v. Commissioner the United States Court of Appeals for the Fourth Circuit upheld a decision by the Commissioner of Internal Revenue that denied a dependency exemption for a live-in lover, because the relationship between the North Carolina taxpayer and his claimed dependent violated state law. This note will review the decision in Ensminger and will explore its implications