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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.

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.

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 07:20:22 +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.