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What Exactly is a Substantial Constitutional Question for Purposes of Appeal to the North Carolina Supreme Court?
Get PDFThis Article will examine the history of the statutory right of appeal based upon a substantial constitutional question; highlight the interpretation and application of this provision, particularly over the past five years; provide a look at a few of the cases in which the North Carolina Supreme Court has accepted the notice of appeal ( NOA ) based upon a substantial constitutional question or instead has dismissed and not retained; and propose an appropriate test for applying this provision and potential statutory amendments that will better define and more uniformly address the question of what constitutes a substantial constitutional question
The People Versus Corporate Welfare: North Carolina\u27s Forsaken Opportunity to Reverse Perversion of the Commerce Clause and to Reinvigorate the Public Purpose Doctrine
Get PDFThis Article neither espouses judicial intervention in any political controversy nor offers broad and sweeping constitutional theories. Instead, this Article is calculated to recognize the efforts of taxpayers who have resorted to the very constitutional rights afforded to them as citizens and taxpayers to challenge governmental acts which are repugnant to the very foundations of our society and to encourage the judiciary to fulfill its duty to reject legislation which is contrary to the state or federal constitution. As the North Carolina Supreme Court stated in the Great Atlantic & Pacific Tea Co. v. Maxwell case: The principle of equal rights to all, and special privileges to none, is fundamental . . . This Article first addresses briefly the appropriateness of judicial review of taxpayer challenges to corporate welfare packages in Part I, analyzes the Commerce Clause flaws in targeted tax incentives packages in Part II, and discusses one state\u27s declaration of the constitutional infirmity of corporate welfare in Part III
Textualist Canons: Cabining Rules or Predilective Tools
Get PDFThis Article uses canons of construction to demonstrate that textualism, particularly plain language or plain meaning textualism, cannot be applied without the use of non-textual personal choices. But, this Article does not seek to demonstrate that interpreting the Constitution requires ignoring the text of the Constitution; nor does this Article seek to demonstrate that textualist approaches lack relevance or value. Rather, this Article seeks to demonstrate that textualism cannot create rules that avoid personal predilections and does not create neutral principles or eliminate predilective interpretation. In order to accomplish this goal, this Article reviews a variety of canons of construction and applies them to the Takings Clause
The Danger to Confidential Communications in the Mismatch Between the Fourth Amendment\u27s Reasonable Expectation of Privacy and the Confidentiality of Evidentiary Privileges
Get PDFIn May 2009, a bare majority of the Supreme Court of North Carolina decided State v. Rollins, making a serious mistake in privilege law that if applied generally will undermine the valued protections of evidentiary privileges. Ordinarily, few might criticize a ruling admitting statements like those made by the defendant, Mickey Rollins, who indicated his guilt for a homicide. However, Rollins\u27 statements were made to his wife, and under established precedent, those conversations should have been ruled a privileged marital communication
Slavery Jurisprudence on the Supreme Court of North Carolina, 1828-1858: William Gaston and Thomas Ruffin
Get PDFIn the years preceding the Civil War, two North Carolina Supreme Court Justices, Chief Justice Thomas Ruffin and Associate Justice William Gaston, offered starkly different legal opinions on issues relating to slavery. Despite broad similarities in their backgrounds and their agreement on many other legal and judicial issues, Ruffin and Gaston approached slavery from sharply contrasting perspectives. Both men used their positions on the bench to influence the treatment and legal status of slaves. While Ruffin vigorously defended the peculiar institution and took the concept of chattel to a logical extreme, Gaston denounced many of its dehumanizing elements. In fact, Gaston\u27s opinions frequently attempted to ameliorate conditions for slaves. The contrast is especially noteworthy given that Ruffin and Gaston served on the same court, at the same time, with very similar backgrounds, including the fact that both were slaveholders. This Article analyzes their opinions on slavery and also partially seeks to explain the differences between the two men through their backgrounds in the areas of legislative service, religious affiliation and judicial aims
How Courts Will Apply E-Discovery Law and Spoliation to Electronically Stored Evidence Created or Stored on Social Networking Sites
Get PDFA Fighting Chance for Outlaws: Strict Scrutiny of North Carolinas Felony Firearms Act
Get PDFThis Comment ... assume(s) that all persons have an individual, fundamental right to self-defense protected by the Constitution\u27s Due Process Clause. In its current form, North Carolina\u27s Felony Firearms Act infringes on that right by denying an impermissibly broad classification of individuals the ability to acquire, own, control, or otherwise possess a firearm - even in their own home, faced with a life-threatening situation. Even when the person whose rights have been deprived has shown a flawless respect for the law for the past forty years. Even when that person\u27s original felony was nothing more than an innocuous violation of a technical rule. Even when other, comparatively more violent criminals get to keep their firearm. While the Britt v. State decision ultimately turned out well for Barney Britt, individuals in his situation should be able to preserve their fundamental right to self-defense without being forced to spend nearly half a decade locked in litigation
Another Straightforward Application : The Impact of Melendez-Diaz on Forensic Testing and Expert Testimony in Controlled Substance Cases
Get PDFPart I of this Article will analyze Melendez-Diaz with a focus on extracting indicators within the opinion that lend guidance as to how the opinion could be extended to Bullcoming and to expert testimony based on forensic reports in controlled substance cases. Part II will provide an overview of the tests utilized by the SBI to determine the nature and quantity, if any, of suspected controlled substances with the goal of ascertaining who, under Melendez-Diaz, should be subject to confrontation. Part III will provide a prediction of the outcome in Bullcoming. Finally, Part IV will review the pending cases from the North Carolina Court of Appeals addressing expert testimony based on non-testifying analysts\u27 reports and will offer an analysis showing that the expert testimony in these cases is insufficient under the Sixth Amendment
Waving Goodbye to Waiver? Not So Fast: Inadvertent Disclosure, Waiver of the Attorney-Client Privilege, and Federal Rule of Evidence 502
Get PDFWaiver of the attorney-client privilege due to inadvertent disclosure is an important issue that courts and litigants have grappled with for a long time. With electronic discovery becoming increasingly common, and with electronic privilege reviews replacing paper reviews, the issue takes on greater importance. The risk of inadvertently disclosing privileged or protected information is heightened in electronic discovery because of the very nature of electronic information. For example, although a party makes an effort to segregate and delete privileged information from a computer drive prior to producing the electronic documents to the opposing party, the deleted files may still be present within a larger folder structure. A document may be inadvertently produced as a result of an electronic document break error. And as the use of electronic discovery consultants and other vendors increases, litigants face an increased risk of inadvertent disclosure due to errors made by vendors