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Vol. 2 No. 2



By: Bruce Comly French

The Equal Protection Clause of the Fourteenth Amendment was originally drafted to ensure that freed blacks were guaranteed equal protection of the laws. Its scope has since been interpreted to extend to discrimination based on gender, religion, national origin, and a few other enumerated classes. More recently, it has also been interpreted to apply to individuals against whom the government has discriminated not based on the plaintiff’s membership in a group, but based on mere personal malice or ill will. Courts have allowed such plaintiffs to bring so-called “Class of One” Equal Protection claims where (1) the plaintiff has been intentionally treated differently from others similarly situated, and (2) there is no rational basis for the treatment.

While this standard attempts to clarify what a class-of-one plaintiff must allege, courts have consistently misinterpreted the “same or similarly situated” standard to require that plaintiffs compare themselves to others who are identically situated. To further complicate the issue, courts have also misread the rational basis standard to require an allegation of ill will in the complaint. The result is that, while Equal Protection precedent does not require the pleading of ill will or the comparison to identically-situated others, plaintiffs run the risk of District Court dismissal absent adherence to these erroneous heightened standards. Equal Protection plaintiffs also risk erroneous dismissal based on a preliminary finding of Qualified Immunity. Dismissing at the pleading stage on the basis of Qualified Immunity precludes an analysis of the alleged constitutional deprivation, is fatal to creating reliable precedent, and makes potential appeals more complicated.

Lower level courts are consistently misinterpreting Equal Protection law to require heightened pleading and other hurdles that were not necessarily intended by Supreme Court rulings. The effect is that district courts are unfairly dismissing meritorious complaints, resulting in inconsistent holdings and unreliable case law.


By: Mary Costantino

So-called electronic sniffers are a new reality of law enforcement that is beginning to augment and even replace traditional canine sniffs. Electronic sniffers may appear in the form of a small hand-held device, walk-through portals, or collections that are subsequently submitted to laboratories for testing. Such technological advances used by law enforcement to learn certain private information about individuals must be analyzed for their constitutionality.

Proponents of electronic sniffs point out that they tend to have increased precision and accuracy as compared to canine sniffs, and are frequently less invasive and humiliating. Critics, however, maintain that some information revealed in the context of an electronic sniff may go beyond the scope of what the court has found to be constitutional without a warrant or exigency; and that the ability of the electronic sniff to detect microscopic amounts of contraband may mean that innocent passers-by of drugs or explosives will be wrongly detained if even a nanogram of the illicit material is transferred to their person.

While it is impossible to predict what courts will decide as to the constitutionality of using electronic sniffs, they will most likely turn to traditional Fourth Amendment jurisprudence and make distinctions between the home, the individual, personal effects, and automobiles. Acknowledging that nuances will certainly come into play, it is nonetheless likely that the court will find that electronic sniffs of the private residence and the person will usually constitute searches, whereas the same of private effects and automobiles may not be considered searches in most contexts.


By: Kenneth B. Orenbach

Throughout the last thirty years, corporations have seen a rash of scandals and abuses of both the duty of care and duty of loyalty. The current model, a board of outside directors, is not achieving its intended purpose to monitor the actions of corporate management. In response to corporate scandals such as Penn Central, Enron, WorldCom, and the recent subprime mortgage crisis morality needs to be incorporated into corporate decision-making. The Supervisory Director is a response to the need for institutionalized moral norms.

The author argues that the Supervisory Director would incorporate Judeo-Christian business ethics. The position would be similar to the Jewish apotropos and the faithful servant of the Parable of the Talents. This director would have no management responsibility over daily activities, but would act as a check on the CEO. A Supervisory Director would have significant business experience, proven honesty and integrity, and a general understanding or willingness to be trained in Judeo-Christian business ethics. The author then fully explains and details the duties and responsibilities of the Supervisory Director.

The author recognizes that the Supervisory Director may run afoul of established constitutional precedents in relation to the Establishment Clause and argues that a new test should be formulated to determine the constitutionality of Establishment Clause cases. Under the author’s new test, the Supervisory Director would meet constitutional muster. The new two-prong test would be an individualized analysis of each case including whether government action with respect to religion is (1) motivated by a secular purpose that promotes the public welfare, and (2) assures the fullest possible scope of religious liberty.


By: Luke Repici

Taxation without Gestation examines the impact of increasing national debt and annual budget deficits on young Americans and future generations. The author recognizes the Supreme Court decisions in relation to taxpayer status, but argues that the Flast v. Cohen exception should be expanded so that young Americans and future generations would be allowed to exercise their constitutional right to redress grievances against the government.

The author examines (1) founding documents and the principles set forth regarding deficit spending and incurring debt; (2) historical debt and spending levels, current fiscal policy, the current state of national finances and future projections with particular emphasis on entitlement programs; (3) Supreme Court decisions regarding taxpayer status including the language in Frothingham that stated there is a general prohibition against taxpayer suits because the threat of future taxation was minute and indeterminable; (4) the Flast exception to the Frothingham doctrine; and (5) how young Americans and future generations are distinguished from the interest in and injury suffered by the public at-large.

The author argues that the Flast exception should not be limited to Establishment Clause cases, but should be expanded to cases that involve a redress of grievances. Under the Flast exception, young Americans and future generations would have standing in a taxpayer suit against the government. The author realizes that a judicial remedy may not exist to correct such matters, but argues that regardless, the current spending programs violate the constitutional rights of young Americans and future generations.


By: Lydia E. Lavelle

Continuing Assignment of Responsibility for its Children examines the recent North Carolina Court of Appeals decision in Boseman v. Jarrell. Boseman v. Jarrell held that a second parent, without being married to the first parent, was a parent, by adoption, without severing the first parent’s rights. The author suggests that the North Carolina Supreme Court has two choices with respect to the appellate court decision (1) decide the case procedurally as the court of appeals did, or (2) decide the case on the underlying issue of whether the adoption was proper in the first place.

The author argues that the supreme court should take the second approach and affirm that the adoption was proper. To arrive at this conclusion, the author (1) examines the facts of Boseman v. Jarrell; (2) analyzes the court of appeals holding and reasoning with particular emphasis on how North Carolina has historically assigned responsibility for its children; (3) compares North Carolina adoption statutes with those in Indiana, Pennsylvania, Illinois, and Delaware; and (4) concludes that the method of adoption in Boseman v. Jarrell is in the best interests of the child.


By: Lesley T. Keith

A Need for Equitable Legitimation examines North Carolina law as it relates to succession by an illegitimate child from a putative father. The Supreme Court has held that states cannot completely bar a child from taking from the putative father, but the states must impose administrative requirements that must be followed during the life of the father. North Carolina has established such a statute that has been upheld against Equal Protection claims, but fails to address whether strict compliance or constructive compliance is necessary.

The author argues that constructive compliance would allow for equitable legitimation when clear and convincing evidence establishes a paternal link. The author examines Phillips v. Ledford, a North Carolina case that denied constructive compliance based on DNA testing, to argue for the use of constructive compliance. The author comes to this conclusion by (1) examining the history of legitimacy law; (2) analyzing the holding and reasoning in Phillips v. Ledford; (3) stating why the court was wrong in Phillips v. Ledford as it relates to DNA testing reliability, equitable adoption principles, similar laws in other jurisdictions, and modern family structures; and (4) arguing that where the legislature fails to act, the court should recognize constructive compliance and equitable legitimation in North Carolina.


By: Elizabeth A. Grymes

This article focuses on the Supreme Court of North Carolina’s decision in Andrews v. Hagood, after the ruling of the United States Supreme Court in Ahlborn, to determine the proper method of calculating a state’s subrogation right to Medicaid reimbursement when the medical portion of a settlement award was not specifically apportioned. The article gives the facts of the Andrews suit, along with the appeals leading to the North Carolina Supreme Court, and the impacts of the decision on statutory collection methods states use when they assert a subrogation claim. The article also focuses on whether statutes, like those in North Carolina, are legally binding after the Supreme Court decision in Ahlborn. Lastly, the article suggests that North Carolina’s law is not reconcilable with the Ahlborn decision and suggests ways the North Carolina legislature can amend the statutes to comply with that decision.