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Whose Loss Is It Anyway? Effects of the “Lost-Chance” Doctrine on Civil Litigation and Medical Malpractice Insurance

595

Steven R. Koch

This Comment explores the “lost-chance” doctrine—a theory of recovery unique to medical malpractice litigation that permits a patient to recover damages from a doctor without needing to establish a more-likely-than-not causal connection between the doctor’s negligence and the patient’s injury.  Using two recent state supreme court decisions as a vehicle for analyzing the policy... »

Mashed-Up in Between: The Delicate Balance of Artists’ Interests Lost Amidst the War on Copyright

639

Michael Allyn Pote

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Protecting the Greater Good: A Critique of the Public Duty Doctrine as Applied in Murray V. County of Person

694

Alexander B. Punger

This recent development defends the much maligned public duty doctrine and criticizes the North Carolina Court of Appeals decision in Murray v. County of Person.  The decision in Murray incorrectly based application of the public duty doctrine on whether the defendants were sued in their individual or official capacities.  Application of the doctrine in... »

North Carolina Common Law Parol Evidence Rule

1699

Caroline N. Brown

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,... »

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

1771

Scott D. Gerber

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... »

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

1819

Joseph J. Kalo & Lisa C. Shiavinato

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... »

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

1869

Jeffrey S. Kinsler

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... »

Falling Out of Love with an Outdated Tort: An Argument for the Abolition of Criminal Conversation in North Carolina

1910

Caroline L. Batchelor

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,... »

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

1952

Alexander B. Punger

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... »

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

1979

Emily E. Reardon

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... »

Commencement Address—May 10, 2009

1

Michael B. Mukasey

On May 10, 2009, former Attorney General Michael B. Mukasey delivered commencement remarks to the graduating class of the UNC School of Law. Reminding the graduates that lawyers deal with the very hardest subjects and questions, Mr. Mukasey described the challenges he faced as a federal district judge and as attorney general, urging all... »

The Truth About Physician Participation in Lethal Injection Executions

11

Ty Alper

This Article addresses an aspect of Baze v. Rees (the Court’s recent lethal injection decision out of Kentucky) that has received little attention but threatens to have a significant impact on the way in which the holding of Baze is implemented in other states. In short, several of the Justices’ opinions in Baze were... »

Presidential Control of the Elite “Non-Agency”

71

Kimberly N. Brown

This article examines the constitutionality of legislation creating a new form of independent agency—in effect, a “non-agency” agency residing in the no-man’s land between Articles I and II of the Constitution.  In the Sarbanes-Oxley Act, Congress established the Public Company Accounting Oversight Board (“PCAOB” or “Board”) and endowed it with massive governmental powers while... »

Requiring a Jury Vote of Censure to Convict

137

Richard E. Myers II

This Article proposes changing the way juries (and judges) render their verdicts in criminal cases by explicitly requiring a separate finding before a defendant can be convicted: censure. Under mandatory jury censure, the criminal trial jury (or judge, if serving as factfinder), would be required to make a specific finding of censure in addition... »

Serendipity

185

Sean B. Seymore

Serendipity, the process of finding something of value initially unsought, has played a prominent role in modern science and technology. These “happy accidents” have spawned new fields of science, broken intellectual and technological barriers, and furnished countless products which have altered the course of human history. In the realm of patent law,... »

Dusting Off the AK-47: An Examination of NFL Players’ Most Powerful Weapon in an Antitrust Lawsuit against the NFL

212

Sean W.L. Alford

Most of today’s football fans take labor peace for granted.  After all, it has been more than fifteen years since professional football experienced the labor strife that led to one of the most significant antitrust decisions in favor of its players – McNeil v. National Football League.  At the time, the decision was thought... »

Frontiers in Empirical Patent Law Scholarship

1321

Andrew Chin

Recent proposals to amend the Patent Act  and the legal academy’s growing interest in empirical methods  have made the policy analysis of patent law a timely topic for colloquia  and symposia.   Empirical scholarship plays a vital role in these discussions, as it tests the theories, hypotheses, and characterizations that underlie legal rules and... »

Keynote Address

1323

Hon. S. Jay Plager

In thinking about the range of issues we confront in empirical legal research, including research into patent law and policy, it is well to begin with fundamentals.  There are three inquiries that define what scholarship into the human condition cares about—knowledge, conduct, and governance.  Typically, scholarship regarding patent law and policy is concerned with... »

The Political Economy of the Patent System

1341

Jay P. Kesan & Andres A. Gallo

In recent years, many reform proposals have been presented in Congress for changing the patent system in the United States.  Most of these proposals have been normative in nature and based on overcoming the many perceived shortcomings of the United States Patent and Trademark Office’s (“Patent Office”) performance.  Nonetheless, actual legislative reforms have failed... »

Copying in Patent Law

1421

Christopher A. Cotropia & Mark A. Lemley

Patent law is virtually alone in intellectual property (IP) in punishing independent development.  To infringe a copyright or trade secret, defendants must copy the protected IP from the plaintiff, directly or indirectly.  But patent infringement requires only that the defendant’s product falls within the scope of the patent claims.  Not only doesn’t the defendant... »

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