North Carolina Law Review » Volume 88

A Prolonged Slump for “Plaintiff-Pitchers”: The Narrow “Strike Zone” for Securities Plaintiffs in the Fourth Circuit

nclrev — Thu, 15 Jul 2010 07:40:24 +0000

This article focuses on the narrow “strike zone” that plaintiffs must overcome in private securities actions instituted in the Fourth Circuit. Based on empirical data generated over a fourteen-year span, there emerges a clear finding that during that time period defendants were victorious in almost all cases, either on the merits of the case or due to procedural obstacles. The authors posit that this pattern of difficulty for plaintiffs arises, at least in part, from the Fourth Circuit’s restrictive interpretation of various requisite elements of these causes of action, such as materiality and scienter, as well as the Fourth Circuit’s approach to the pleading standards mandated by the PSLRA and the Federal Rules of Civil Procedure. The authors examine in detail some of the leading securities cases that establish Fourth Circuit precedent in these areas, as well as notable cases from the survey period, to illustrate the confines of the narrow “strike zone” available to plaintiffs to establish a meritorious claim.

Revisiting Eve’s Law: Suggestions for Improving the North Carolina Anti-Gang Statute

nclrev — Thu, 15 Jul 2010 07:30:01 +0000

When state social policies and social realities conflict, state legislatures need to focus upon the problem to try to fix it. Gang activity in a community is such a problem. Since 1998, the Governor’s Crime Commission in North Carolina has studied the problem of gang proliferation and gang violence within the state. The state legislature did not act. Then, in the spring of 2008, Eve Carson, the president of the student body at the University of North Carolina at Chapel Hill, was brutally murdered. Calls were issued from the bench urging state legislators to act on the gang issue. The state legislature finally passed anti-gang legislation in the summer of 2008.

This Article focuses on the anti-gang statute enacted by the North Carolina legislature that summer in the wake of the Eve Carson murder. After briefly reviewing the legal status of the two individuals arrested for the Carson murder, and the current anti-gang efforts in North Carolina, the Article interposes the circumstances of the Carson murder with the provisions of the statute, to predict whether or not the statute would have been effective in that particular situation if previously enacted. The Article suggests that the North Carolina Street Gang Prevention Act would not have been an effective deterrent or effective from a punitive standpoint after the fact in that particular case. As a result of that conclusion, the Article looks to statutory enactments in other jurisdictions to provide some suggestions for improving the current anti-gang legislation, concluding that the North Carolina law needs additional revision in order to be an effective piece of legislation.

The Racial Justice Act and the Long Struggle with Race and the Death Penalty in North Carolina

nclrev — Thu, 15 Jul 2010 07:29:35 +0000

In August 2009, the North Carolina Legislature enacted the Racial Justice Act (“RJA”), which commands that no person shall be executed “pursuant to any judgment that was sought or obtained on the basis of race.” One of the most significant features of the RJA is its use of statistical evidence to determine whether the race of defendants or victims played a significant role in death penalty decisions by prosecutors and jurors and in the prosecutor’s exercise of peremptory challenges. The RJA commits North Carolina courts to ensuring that race does not significantly affect death sentences.

This article examines the RJA and North Carolina’s long struggle with race and the death penalty. The first part traces the history of race and the death penalty in the state, showing that racial prejudice exerted a consistent, strong, and pernicious influence on the imposition and disposition of death sentences. From colonial times into the 1960s, the overwhelming majority of those executed were African American, and despite most victims and perpetrators being of the same race, the overwhelming majority of victims were white. Hundreds of African Americans have been executed for a variety of crimes against white victims, including scores of African American men executed for rape. However, only three whites have been executed for murdering African American victims, and no white man was ever executed for the rape of an African American.

Politicizing the Courts and Undermining the Law: A Legal History of Colonial North Carolina, 1660-1775

nclrev — Thu, 15 Jul 2010 07:28:33 +0000

This Article is the first monographic history of the legal output of colonial North Carolina courts. Based on an examination of voluminous manuscript court records, it concludes that a fragile legal system developed during the first half-century of the existence of an initially small colony on the banks of the Albemarle Sound. Just as that legal system was gaining solid footing in the late 1720’s however, it was destroyed when a sitting governor politicized it. The rule of law was slowly restored over the next quarter-century in the eastern portions of colonial North Carolina, and the legal system functioned effectively there during the last two decades before the American Revolution. But the vast geographic expanse of the colony, together with its ethnic and religious diversity, prevented the courts from governing western frontiers in depth. Instead, they confronted a series of riots in the 1760’s that culminated in open rebellion in the 1770’s. Although the then-governor successfully led an army against the rebels, that army could not sufficiently subdue them to enable the judges of the Supreme Court to meet regularly and govern the western regions. The article thereby shows that effective enforcement of law depends on more than brute force; it requires the consent and support of local communities.

What’s Brewing in the Old North State: An Analysis of the Beer Distribution Laws Regulating North Carolina’s Craft Breweries

nclrev — Thu, 15 Jul 2010 07:27:22 +0000

As North Carolina’s craft beer industry has developed and gained a national reputation, the North Carolina General Assembly has recognized the promotion of the craft brew industry as a desirable and worthy goal. Despite this recognition, many craft brewers in the state feel that the laws can be improved to better promote the growth of the craft brew industry. This Comment seeks to explore ways possible modification to the laws that can achieve this objective.

The most contentious laws regulating craft brewers are those which form the “three-tier system,” a regulatory scheme that mandates that there be a middleman—also known as a wholesaler or distributor—between the brewer and the retailer. The three-tier system achieves this objective through licensing requirements, and additionally mandates that there be certain contractual provisions in the agreements between the brewer and the wholesaler. While some brewers are excepted from the licensing requirements, all brewers are subject to the mandatory contractual provisions, also known as the “beer franchise laws.” Some craft brewers and others in the beer industry believe that the three-tier system is antiquated, and that it should be modified—most notably by removing all limits to self-distribution and by excepting small brewers from the franchise laws—if not scrapped altogether.

Coastal Federal Credit Union v. Hardiman: You Can Still “Ride-Through” the Eastern District of North Carolina

nclrev — Thu, 15 Jul 2010 07:26:59 +0000

From its biblical and constitutional roots, American bankruptcy law has developed to provide important and necessary protection to financially overextended debtors. In the nineteenth-century Congress repeatedly responded to national economic difficulty by passing bankruptcy legislation. In the last quarter of the twentieth-century, Chapter 11 bankruptcies frequently prevented the disappearance of major airlines, curbing massive employment losses and the resulting impact on the national economy. Events of recent years, such as the proliferation of variable rate mortgages, large numbers of layoffs, the rising number of individuals without health insurance, and the rapid decline of the stock market in the fall of 2008, show the unpredictable and tenuous nature of financial health for modern Americans.

Down The Drain: How North Carolina Municipalities Lost Immunity for Storm Drains in Jennings v. Fayetteville

nclrev — Thu, 15 Jul 2010 07:22:42 +0000

When a high school student falls into a city-owned drainage ditch, will the city’s prospects of facing expensive wrongful death litigation hinge on the origin of the water in the ditch? If this scenario happens in North Carolina, the answer might be yes. As the law currently stands after the North Carolina Court of Appeals case Jennings v. City of Fayetteville,TT if the ditch carried storm water, the municipality will likely face liability—certainly an unappealing prospect in this time of tightened budgets.TT On the other hand, if the ditch carried sewage water, the municipality will likely be immune from the wrongful death claim. In addition to the real-world implications for injured parties and cash-strapped municipalities, this seemingly arbitrary distinction between sewers and storm drains reveals the confusing nature of North Carolina law on government immunity.

Globalization, Women’s Work, and Care Needs: The Urgency of Reconciliation Policies

nclrev — Tue, 11 May 2010 18:36:20 +0000

This Address argues that the increase in women’s participation in paid work in many countries has made more manifest the tensions around balancing family and labor market work, hence making more obvious the need to solve the problems of care facing many families. First, the Address focuses on the significance of demographic changes affecting these tensions, namely rising women’s labor force participation rates, declining fertility rates, smaller family size, and increasing life expectancy. These changes provide the background for an understanding of the “crisis of care,” or the tensions created by the difficulties that families encounter in caring for children, the sick, and aging family members, particularly in high-income countries, such as in western Europe, the United States, and Japan. Second, the Address emphasizes the importance of policies dealing with this crisis, and it argues that, in the high-income countries where public policies have been lagging, female immigration has played an important role in finding some private solutions to the crisis. Third, the Address argues that care-provisioning policies in different countries have resulted in a variety of models, depending on the degree of public intervention and market-oriented strategies. Finally, the Address examines the notion that the current global economic crisis is not gender neutral and is likely to reinforce the tendencies intensifying the crisis of care. This reinforces the conclusion that the need to take up policies to balance family and labor market work seriously is an issue whose time has come.

Families on the Edge: Governing Home and Work in a Globalized Economy

nclrev — Tue, 11 May 2010 18:35:44 +0000

Scholars working in the fields of labor law, globalization, law and development, and of course gender now encounter the family at every turn. This is sometimes true even when families and households are officially absent from the debate or issue under discussion, as is often the case. Whether the topic is the transformation of labor and employment law, the character of economic restructuring and market reform, or the path of development policy, the place and function of the family turn out to be key items of interest. Noticing, or failing to notice, where the family fits in and what goes on within households may completely change the perception of the issue, the understanding of how social and economic processes operate, and the assessment of what is to be done at the level of norms, policy, and regulation.

Globalization, Canadian Family Policy, and the Omissions of Neoliberalism

nclrev — Tue, 11 May 2010 18:34:54 +0000

The relationship between globalization, family structures, and social policy is complex, uneven, and evolving. This Article examines social policy reform in Canada during the past two decades in order to advance three propositions about the relationship between globalization and public policy: first, the influence of globalization on social policy is neither direct nor uniform but, instead, strongly mediated by changing political rationalities; second, neoliberalism is most productively understood as a contested political rationality that weaves foundational commitments to the market, market logics, and individualization into new public policies and regulatory fields and onto existing ones; and, finally, analyses of contemporary family policy should be as concerned with the ways in which governments frame social policy reforms as with the amount that they spend on them. Describing recent policy interventions in family income support, maternity, parental benefits, and care policies, this Article describes how Canadian social policy reform relies on fiscalization, which presupposes that relatively modest payments to individuals and families or tax deductions and credits can stand in for social research and planning, democratic debate, and public infrastructure. Fiscalization also imagines that families will use relatively small increments in income for their designated policy goal in an era when a great many families are coping with declining incomes, unemployment, and rising debt. Although income support is necessary for a growing number of Canadian families, this Article concludes that social policy reform has yet to adequately respond to contemporary family challenges, including work-life balance and a growing care deficit.

Families, Human Dignity, and State Support for Caretaking: Why the United States’ Failure to Ameliorate the Work-family Conflict is a Dereliction of the Government’s Basic Responsibilities

nclrev — Tue, 11 May 2010 18:33:22 +0000

In the last two generations, the hours worked by American families have increased significantly as greater numbers of women have moved into the workplace. The resulting work patterns have put considerable stress on family life, particularly when it comes to accomplishing the caretaking tasks traditionally performed by women. The legal and policy responses to this problem have been surprisingly muted in the United States. Compared with many European nations, for example, the United States has done very little to ensure adequate time for family life, to ameliorate conflicts between work and family, and to ensure that critical functions such as child rearing, which were once largely handled within families, are still adequately accomplished. This gap in law and public policy has left American families to deal with these issues privately. The various routes they have taken, however, impose large costs on important public goods, including children’s welfare, sex equality, and civic participation.

This Essay argues that the United States’ failure to help families negotiate work-family issues is not only poor policy, it is a dereliction of the state’s most basic responsibilities. The liberal democratic commitment to human dignity that is foundational to the United States’ understanding of itself, this Essay contends, requires it to support caretaking in order to meet the dependency needs that are inevitable in human lives. Because of the large role that the condition of dependency plays in human lives, supporting caretaking is every bit as important to maintaining human dignity as protecting citizens’ security or defending their individual rights.

Achieving Accountability for Migrant Domestic Worker Abuse

nclrev — Tue, 11 May 2010 18:32:46 +0000

Domestic work has become increasingly commoditized in the global economy. Migrant domestic workers’ remittances constitute a rich source of revenues for their countries of origin, while their labor ameliorates the “care deficit” experienced in wealthier countries of destination. Despite the importance of their work, migrant domestic workers are some of the most exploited workers in the world. They are often discriminated against based on their gender, class, race, nationality, and immigration status, and they are excluded from labor law protections in most countries of destination.

This Essay examines some of the underlying reasons for this mistreatment and neglect. After describing the scope and framework of the global domestic work market, it explains why the domestic work sector remains highly resistant to formal recognition as a form of labor entitled to worker protections under international and national laws. It explores the roots of resistance to accountability for migrant domestic worker abuse, drawing from sociological studies that have examined the social construction of demand for trafficked migrant domestic workers’ labor. Building upon these findings, this Essay turns to a case study of the trafficking of migrant domestic workers into the United States by foreign diplomats. The study underscores the challenges to achieving accountability for this devalued worker population.

Abortion Access in the Global Marketplace

nclrev — Tue, 11 May 2010 18:31:08 +0000

In the United States, government funding of legal abortion for low-income women has been uniquely “de-linked” from the fundamental right to an abortion. While the underlying right to an abortion has been repeatedly reaffirmed, federal courts have been unreceptive to any imposition of an affirmative governmental obligation to fund the exercise of the right. In contrast, the human rights framework, increasingly adopted worldwide by other national and regional courts and legislatures, has supported expansion of government funding of legal abortion. The domestic U.S. treatment of abortion funding is illuminated by examining several recent transnational decisions—from Colombia, Mexico, and the European Court of Human Rights, among others—in which legal abortion, framed as a matter of human rights and human dignity, led to expansion of public funding. In particular, these examples indicate that in a context where a national public health plan was already in place, and where the provision of health care was already viewed as a government responsibility, the extension of health care coverage to include newly legal abortion procedures generated little controversy.

Race and Market Values in Domestic Infant Adoption

nclrev — Tue, 11 May 2010 18:30:19 +0000

For prospective parents seeking to adopt U.S.-born babies, white infants are the most in demand and, relatively speaking, in the shortest supply. Some domestic adoption agencies have responded to this mismatch by assessing higher fees for the adoption of white infants than for infants of other races. After briefly considering the historically prominent role played by race in the different forms of domestic adoption, this Article explores the ethical and child-welfare concerns raised by race-based pricing in private adoption agencies.

Credit for Motherhood

nclrev — Tue, 11 May 2010 18:29:54 +0000

This Essay builds on prior work exploring the impact of consumer lenders who sell credit products for assisted reproduction and adoption. After reviewing some basic attributes of the parenthood lending market, the Essay discusses how not-for-profit lenders promote traditional conceptions of motherhood and the division of carework in ways that credit discrimination laws were not designed to address. The Essay also articulates some incentives of for-profit lenders to sell motherhood and potential implications for women who are ambivalent about becoming parents.