speech

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After All This Time: An Analysis of the Recent Trend to Extend Truth-in-Lending-Style Disclosures to Commercial-Financing Transactions

The Truth in Lending Act of 1968 (TILA) was designed to protect consumers by implementing uniform disclosures for consumer financing transactions and by creating substantive consumer protections. While TILA has been amended over the past fifty years to reflect modern needs, it has always remained a consumer financing law. Over the past few years, however, states have challenged that notion by passing laws which require TILA-inspired disclosures for certain commercial-financing trans-actions. And at the federal level, a bill was introduced in the United States House of Representatives (House Bill) that would expand TILA to commercial-financing transactions falling below a certain threshold. This Article contends that extending consumer-financing protections to small businesses will likely have unintended negative effects, and that although neither state nor federal expansion is advisable, of the two, a uniform fed-eral approach would be less harmful. After reviewing the commer-cial-financing disclosure requirements in the House Bill and in the three key states of California, New York, and North Carolina, the Article con-siders the effects on small businesses and consumers of an expansion of TILA and Regulation Z. The Article concludes by suggesting several revi-sions to ameliorate the negative impact of importing a consumer-financing disclosure regime into small-business commercial financing

No-Knock Warrants: Protective or Predatory for North Carolinians?

Much ink has been spilled on arguments for restraining law enforcement’s use of no-knock warrants. In 2020, the issue was thrust into the national spotlight with the tragic death of Breonna Taylor at the hands of the Louisville Metro Police Department. While national attention focused on the federal response, Oregon, Florida, Virginia, and other states sprang into action by critically reexamining the justifications offered for the use of no-knock warrants and, in some cases, finding these justifications wanting. The Comment suggests that the justification of safety that no-knock warrants share with their predecessor, the venerable knock-and-announce rule, is not borne out in practice. Accepting that law enforcement must have adequate discretion with which to root out crime, North Carolina need not tether its law on exigent circumstances to the federal “floor.” Instead, with constitutional liberties and lives themselves at stake, North Carolina should join Oregon, Florida, and Virginia in banning no-knock warrants outright or by limiting their use through heightened pre-issuance requirements

One Hundred & Thirty-Seventh Spring Commencement (2023)

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Board

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A Called Third Strike: Professional Baseball’s Antitrust Exemption in a Post-Dobbs World

Professional baseball has long enjoyed exemption from federal antitrust law due to a trio of Supreme Court cases. The last of these cases, Flood v. Kuhn, upheld the exemption on the basis of stare decisis, yet rejected the constitutional foundation on which it rested. This Comment argues that in the wake of the recent Supreme Court case, Dobbs v. Jackson Women’s Health Organization, the Roberts Court has provided a clear analytical framework for analyzing constitutional stare decisis that should apply to Flood. Applying the Dobbs framework, this Comment then shows how Flood fails every factor favoring continued stare decisis protection and should be overturned

Rhynes and Wiggins

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Theseus in the Labyrinth: How State Constitutions Can Slay the Procedural Minotaur

Civil procedure is one of the biggest hurdles to access to justice. An array of rules and interpretations of those rules have turned lawsuits into meandering mazes with a procedural minotaur waiting to gobble up meritorious claims. The problem is especially acute for the many Americans without abundant resources or access to a lawyer. Fortunately, there is a ready remedy, albeit one access to justice advocates have ignored: state constitutions. Forty state constitutions, which protect hundreds of millions of Americans, generally guarantee [t]hat all courts shall be open, and every person, for an injury done him in his person, property or reputation, shall have remedy by the due course of the law. All litigants, no matter how much money or education they have, are entitled both to meaningful court access and to meaningful remedies when they suffer legally cognizable injuries. These provisions hold such special promise both because the vast majority of lawsuits take place in state court, and because the U.S. Constitution lacks a similar guarantee. For too long, the conversations about how to achieve access to justice and how to interpret these state constitutional provisions have happened in isolation. This Article contributes to both of these conversations and then brings them together to generate a novel solution to America\u27s access to justice problem. Countless scholars and judges have lamented that convoluted procedures lead to litigants losing on meritorious claims. They have also shown that those procedures increase the cost, length, and complexity of litigation, which makes hiring an attorney too expensive and deters some litigants from bringing deserving claims in the first place. This Article creates a new constitutional framework that legislatures should consider when writing civil procedure codes and that courts should use when deciding how to apply those codes. It then demonstrates how that framework will allow litigants to finally leap over the biggest procedural impediments facing them-pre-suit screening panels, strict time limits on claims, rigorous pleading standards, and stringent class action certification rules-by arguing that these impediments are frequently unconstitutional as applied in particular cases. This Article contends that there will be two principal benefits. The first will be that more litigants can win their claims on the merits instead of losing them on procedural technicalities. The second is that litigation will become cheaper and less time-consuming such that more litigants can vindicate their legal rights in court, regardless of whether they can afford counsel. Finally, this Article situates its proposal in the context of current efforts to achieve access to justice such as advocacy for appointing counsel in all civil cases-civil Gideon- and letting litigants get an attorney\u27s help on discrete tasks. This Article\u27s proposal is much more feasible politically and financially for legislatures and courts to implement than civil Gideon, even as it decreases the need for an attorney\u27s assistance, and more wide-reaching than attempts to unbundle legal services. Ultimately, though, access to justice advocates need not adopt this Article\u27s proposal to the exclusion of all others. They will hopefully see, however, how the proposal can enable major progress in ending the access to justice crisis

Restoring Balance to the Federal Tax-Exemption Regime’s Treatment of Hospitals: Let Their Actions Speak Louder Than Their Charters

The tax-exemption system for American hospitals was created both to optimize care for those who cannot afford it and to encourage good deeds by hospitals. But despite well-intentioned attempts by the IRS to implement these lofty policy goals, for-profit hospitals today pay taxes despite at times providing more public benefit than their nonprofit brethren while nonprofit hospitals are incentivized to seek profit rather than provide free care. This rise of this state of affairs coincides with changes by the IRS to the standards required to obtain the exemption. Originally, the nonprofit system operated on a quid pro quo model, where hospitals were thought to relieve a burden on the government and receive tax exemption in return. But in 1969, the IRS migrated to the ambiguous “promotion of health” model introduced in Revenue Ruling 69-545. With its enactment, the IRS effectively freed nonprofit hospitals from accountability to the original policy goals behind nonprofit status and introduced the problems above. To fix the imbalance faced by hospitals today, this Article proposes a modification to federal policy that returns to the quid pro quo model but keeps the flexible attitude of Revenue Ruling 69-545 towards community benefit. Under this suggested approach, all hospitals must provide a threshold amount of community benefit to receive tax exemption, but they will have sufficient flexibility in the means to reach that goal. This places all hospitals on a level playing field and will hopefully increase charitable services provided to the needy

A Room Without a View(point): Must Student-Housing Employees Trade Free Speech for Free Rent?

The COVID-19 pandemic exposed the power that public university speech policies have to silence students. Although few people were better suited to provide a candid assessment to the media of student safety in on-campus housing than resident assistants, all too often these student employees were forbidden from speaking openly, or at all. To understand the scope of these prohibitions on speech, researchers using freedom-of-information law obtained employment manuals, policies, and guidelines from a wide cross-section of public universities. This Article analyzes the language used in a sample of these materials and concludes that while these speech policies often - and rightly - protect sensitive, confidential information that resident assistants learn on the job, they also indiscriminately sweep across a great deal of protected speech. As a result, access to information of public concern is restricted. This gagging phenomenon is amplified by the outsized coercive effect that even less-restrictive policies are likely to have on a resident assistant\u27s speech. After all, speaking in a disfavored way may result in not only the loss of a paycheck, but of the roof over the student’s head. With this in hand, the Article reviews the courts’ treatment of the First Amendment rights of both public employees and public-school students in challenges to state action in this area. This Article predicts that whether analyzed under the Supreme Court’s “employee” or “student” jurisprudence, many - if not most - of the speech policies typified in the sample probably flunk the test of First Amendment protection, given that more narrowly tailored options are available