North Carolina Law Review » Issue 6

North Carolina Common Law Parol Evidence Rule

nclrev — Wed, 07 Oct 2009 13:45:20 +0000

This article evaluates the application of the parol evidence rule by the courts in North Carolina. The article explores the tortured and murky history of the rule, to which many of the difficulties associated with its application are surely attributable. Although the North Carolina courts do a fine job with certain groups of cases, including those with merger clauses, this article points out the continuation and exacerbation of an earlier tendency to avoid real analysis by citing and quoting fragments of the parol evidence rule seemingly at random. Especially alarming is the obvious omission of serious inquiry into the parties’ intention to make a final writing. Because it is subsumed within the issue of completeness by the courts, there is a strong likelihood that finality will be assumed or presumed by the courts even in cases where the writing is informal and rudimentary. The liberal tendency marked by prior commentators to admit extrinsic evidence that is credible and not contradictory is still observable, but it is now challenged by a line of cases that applies a stringent “four corners” test. The unpredictable and chaotic state of the parol evidence rule in North Carolina poses a serious enough threat to most contracts to warrant intervention and explication of the rule by the state supreme court.

The Origins of an Independent Judiciary in North Carolina, 1663-1787

nclrev — Wed, 07 Oct 2009 14:45:04 +0000

An independent judiciary is one of the great American contributions to constitutional theory. This Article traces the origins of that idea in North Carolina, one of only a small handful of states to adopt it prior to the Federal Constitution of 1787. Although the North Carolina judiciary did not become independent until the state’s first constitution in 1776, the almost continuous conflict between the executive and the assembly over control of the courts, and the political theorizing that suggested a solution to that conflict, directly influenced the nature of the judicial institution embodied in the state’s original organic law. Significantly, what happened in North Carolina had profound consequences for American constitutional law: in the 1787 case of Bayard v. Singleton, the supreme court of North Carolina became one of the first courts in the United States to exercise the power of judicial review, the ultimate expression of judicial independence. Moreover, a previously unknown non-judicial precedent for judicial review—a 1781 Objection to a court bill by Governor Thomas Burke—suggests that North Carolina was perhaps the first state to fully appreciate the connection between judicial independence and judicial review.

Wind Over North Carolina Waters: The State’s Preparedness to Address Offshore and Coastal Water-Based Wind Energy Projects

nclrev — Wed, 07 Oct 2009 14:44:42 +0000

Nationally, there is great interest in placing wind turbines in coastal and ocean waters. At this time, no such facilities exist. However, major projects are either underway or being planned for siting on the east coast. The ocean waters off the coast of North Carolina and the waters of its large internal sounds are attracting interest because of their high wind resource potential. Therefore, the State needs to be adequately prepared to address legal issues and ecological and other concerns that future water-based wind energy proposals will present. In this article, the authors discuss water-based wind energy projects currently under development in the United States, a number of technical limitations affecting the near future prospect of such projects being located in North Carolina coastal or ocean waters, the newly promulgated regulations for leasing the federal outer Continental Shelf for such projects, the necessity of the State being prepared to use the CZMA consistency requirement to protect state interests, and the state’s existing regulatory structure, coastal development rules, and submerged lands leasing statutes impacting water-based wind energy. The authors conclude that if the State wishes to promote this form of renewable energy, certain agency jurisdictional conflicts need to be removed, some coastal development policies need to be modified, and its submerged lands leasing statutes need to be revised. The authors also discuss proposed legislation which would have addressed some of these issues but which failed to pass the North Carolina General Assembly in its 2009 Session. This proposed legislation is likely to be reintroduced in the 2010 Session.

The Unmerry Widow: Spousal Disinheritance and Life Insurance in North Carolina

nclrev — Wed, 07 Oct 2009 14:44:13 +0000

In spite of our nation’s long-held public policy of protecting surviving spouses, some people purposely disinherit their spouses. For centuries, North Carolina more or less tolerated intentional spousal disinheritance. In 1959, in an effort to protect surviving spouses from deliberate disinheritance, North Carolina adopted a “right of dissent” statute that authorized a surviving spouse to renounce the decedent spouse’s will and receive a statutorily prescribed share (ranging from one-sixth to one-half) of the decedent spouse’s probate estate. Because the dissent statute was limited to the decedent spouse’s probate estate, it was easily circumvented through the use of non-probate transfers. In 1969, the Uniform Probate Code (“UPC”) proposed legislation designed to close the non-probate loophole by expanding the scope of the elective share to an “augmented estate” comprised of the decedent spouse’s probate estate and most non-probate transfers made by the decedent spouse during life. In 1990, the UPC added life insurance proceeds payable to persons other than the surviving spouse to the augmented estate. In 2001, the North Carolina General Assembly adopted a version of the UPC’s augmented estate. Prior to the effective date, however, the General Assembly made an ostensibly technical revision to its new elective share law. Although minor in appearance, the goal of the revision was major: the removal of life insurance proceeds payable to non-spousal beneficiaries from the scope of the elective share. The revision was likely completed due to lobbying by insurance companies, which have traditionally resisted elective share laws in other states. Despite the General Assembly’s efforts to protect insurance companies, most life insurance proceeds payable to non-spousal beneficiaries are still included in the surviving spouse’s elective share. While this inclusion promotes North Carolina’s interest in protecting surviving spouses from total disinheritance, the State does not need to choose between protecting insurance companies and protecting surviving spouses. This Article proposes legislation that would allow the State to further its policy of protecting surviving spouses while simultaneously protecting insurance companies from additional liability.

Falling Out of Love with an Outdated Tort: An Argument for the Abolition of Criminal Conversation in North Carolina

nclrev — Wed, 07 Oct 2009 14:43:47 +0000

Assume Bill has met Robin on the Internet. He portrays himself as a single doctor. After the tenth date Robin and Bill have sexual relations. Can Bill’s wife sue Robin? Absolutely!

. . . Bill has signed a separation agreement that says he and his wife can live as if unmarried in all respects. It is signed, notarized, and drafted by attorneys. It doesn’t include a third party waiver. Bill tells Robin they have been legally separated. She is skittish about the fact that he is separated until she reads the language from his separation agreement that says they can live as if they were not married. And it is, after all, notarized. Feeling assured, they proceed to have a romantic relationship. Can Bill’s wife sue Robin? Absolutely!

Mapping the World Wide Web: Using Calder v. Jones to Create a Framework for Analyzing when Statements Written on the Internet Give Rise to Personal Jurisdiction

nclrev — Wed, 07 Oct 2009 14:43:17 +0000

In March 2007, Kathy Sierra, a well-known game developer and blogger, was scheduled to present at the Etech conference in San Diego. Instead of leading her workshop, Sierra locked herself inside her home and was afraid to leave. Sierra cancelled her appearance at the conference because she was the victim of a harassment campaign conducted over the Internet. Her tormenters sent death threats, posted threatening images, and published Sierra’s personal information such as her home address in Colorado and her Social Security number. Sierra believes bitterness towards women with high profiles motivated the attacks against her. Sierra failed to discover the identities of her harassers, but one photograph was traced to a computer owned by Alan Herrell, a tech consultant in Arizona who denied making the image. Sierra gave up blogging because of the attacks.

Holding on to Fundamental Rights is No Walk in the Park: Challenging the Constitutionality of the Park Ban Upheld Standley v. Town of Woodfin

nclrev — Wed, 07 Oct 2009 14:42:50 +0000

Imagine the perfect day when the sun is shining, the air is cool and clear, and the only plans for the day involve walking through town to attend a cookout with friends in the middle of the public park. Or maybe picture the day of the town’s long-awaited baseball tournament, when all town citizens are welcome to travel into the park and enjoy the open spaces and atmosphere with fellow residents. These experiences involve activities most people enjoy doing, yet nevertheless take for granted. But for some residents of the town of Woodfin, North Carolina, imagining the events described above is as close as they may come to the actual experiences. For those residents, the “doors” to the parks have been closed, and the “Keep Out” signs have been duly posted. And for those residents, this may only be the first step toward further exclusion from public gathering places and perhaps from society at large.