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Commerce Clause - States Lose Power to Prescribe Highway Safety Regulations
Get PDFSince Gibbons v. Ogden, courts have wrestled with the problem of state legislation which affects interstate commerce. This problem is due to the fact that the Commerce Clause of the United States Constitution is silent as to whether states can regulate interstate commerce in the absence of federal regulation. Some authorities argue that federal power is exclusive. Others argue that, absent federal legislation, states are free to regulate interstate commerce. The United States Supreme Court has taken a middle ground, usually upholding nondiscriminatory state regulations in areas which do not require uniform national standards. The Supreme Court has been reluctant to overturn state highway safety regulations, according them a strong presumption of validity. In particular, limitations on truck lengths have been considered especially appropriate for state regulation. But in the recent case of Kassel v. Consolidated Freightways Corp., the Supreme Court held unconstitutional as violative of the Commerce Clause an Iowa statute generally barring sixty-five-foot twin-trailer trucks from state highways. Kassel marks a departure from the Supreme Court hands-off policy towards state highway safety regulations and could further restrict states\u27 powers to prescribe such regulations
Constitutional Law - Control of Obscenity through Enforcement of a Nuisance Statute
Get PDFNorth Carolina, like other states, has chosen to regulate the dissemination of obscenity through a nuisance abatement statute, Chapter 19 of the General Statutes, as well as through criminal prosecution. The Supreme Court of North Carolina answered the question of whether the state\u27s nuisance abatement statute violates the fourteenth amendment\u27s proscription against the unreasonable curtailment of protected expression in State ex rel. Andrews v. Chateau X, Inc., hereinafter Chateau X-I. The Court compared the practical effect of an injunction issued under Chapter 19 with the effect of a criminal statute and found that Chapter 19 was nothing more than a personalized criminal statute. Because the Chapter 19 injunction imposed the same restrictions which could be constitutionally imposed by a criminal proceeding, the injunction did not operate as an unconstitutional prior restraint on protected expression
Presentation of the Portrait of I. Beverly Lake, Sr., Associate Justice, Supreme Court of North Carolina
Get PDFSacrificing Liberty for Security: North Carolina\u27s Unconstitutional Search and Seizure of Arrestee DNA
Get PDFThis Comment examines the constitutionality of North Carolina’s DNA Database Act of 2010. The Act is a newly passed expansion of the existing state DNA database, and this Comment argues that North Carolina’s expansion authorizes a constitutionally impermissible, mandatory, suspicionless, and warrantless search and seizure of DNA and the information contained therein. With warrantless searches, the default rule is that they are “per se unreasonable under the Fourth Amendment— subject only to a few specifically established and well-delineated exceptions.” The Act should not survive Fourth Amendment scrutiny because it does not qualify as a well-delineated exception to the warrant requirement: it is not a search incident to a lawful arrest, it authorizes a search without probable cause or exigent circumstances, it is unjustifiable as a special needs search, and it does not survive basic balancing test scrutiny. Those directly impacted by the Act are arrestees for particular crimes. Although not convicted of the crime, their bodies are invaded, their DNA seized, and their personal, genetic information is given to the state and federal government for further search and analysis
Defining Unfairness in Unfair Trade Practices
Get PDFNorth Carolina\u27s unfair or deceptive acts or practices statute, section 75-1.1 of the North Carolina General Statutes, is a constant presence in North Carolina litigation. The statute combines two explosive ingredients: (1) a private right of action for treble damages and (2) an open-ended conduct standard.
For claims of unfair practices, the conduct standard under section 75-1.1 is open-ended to the point of dysfunction. The standard is no more than a list of adjectives-a list that does not forecast the outcome of a given case. When courts apply this list of adjectives, they usually cannot explain why the adjectives are or are not satisfied. The resulting case law is opaque. This opaqueness makes the outcome of unfairness cases unpredictable.
A solution to these problems is readily available. Section 75-1.1 is based on section 5 of the Federal Trade Commission Act. Early decisions under section 75-1.1 said expressly that courts should take guidance from the law under section 5. The courts need only follow that advice.
The law under section 5 has much to offer courts in section 75- 1.1 cases. Most notably, section 5 doctrine holds that conduct is unfair only if it causes injuries that a plaintiff cannot reasonably avoid. Adding this not reasonably avoidable test to the unfairness doctrine under section 75-1.1 will make this form of litigation more balanced and predictable
