Wake Forest Law Review

10Jan

Rethinking the Presumption of Mens Rea

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By: Eric A. Johnson* Introduction Substantive background principles play a critical role in the courts’ interpretation of criminal statutes, particularly where the subject of mens rea is concerned.[1]  As Professor Dan Kahan has said, “criminal statutes typically emerge from the legislature only half-formed.”[2]  The effect of these “incompletely specified criminal statutes” is a tacit delegation […]

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10Jan

Ineffective Amnesty: The Legal Impact on Negotiating the End of Conflict

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By: Scott W. Lyons* Introduction For the past two decades, the exhaustive discourse concerning a duty to prosecute crimes against humanity primarily discussed the transition to democracy, replacing authoritarian regimes, and the resultant responsibility of the incoming government to hold the previous government accountable for serious atrocities.[1]  As this situation described a predominant international issue […]

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10Jan

Legal Promise and Psychological Contract

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By: Tess Wilkinson-Ryan* Introduction This Essay argues that the “psychological contract”—the parties’ respective, subjective, idiosyncratic understandings of their contractual obligations to one another—is important and predictable.  The common law of contract tells us how to discern the legal promise.  By contrast, the “psychological contract” describes how the parties themselves understand their agreements, an inquiry that […]

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10Jan

Preston v. Leake: Applying the Appropriate Standard of Review to North Carolina’s Campaign Contributions Ban

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By: Hillary Kies* Introduction Over the past decade, North Carolina’s state government has been plagued by corruption and the appearance of corruption.  Corruption allegations and the resulting investigations regarding corruption allegations even reached the campaigns of former governor Michael Easley and outgoing governor Beverly Perdue.[1]  These North Carolina problems have been on trend with the […]

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10Jan

Twenty-first Century Equity: Tailoring the Corporate Veil Piercing Doctrine to Limited Liability Companies in North Carolina

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By: Dave Rugani* Introduction The advent of the limited liability company (“LLC”) in the 1980s has had far-reaching implications for how individuals choose to form business entities.  Never before has there existed such a malleable legal entity that provides both limited liability and exemption from double taxation.[1]  Indeed, since the passage of the first LLC […]

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27Oct

The Enlightenment of Administrative Law: Looking Inside the Agency for Legitimacy

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By: Sidney Shapiro* Elizabeth Fisher** Wendy Wagner*** “Expert discretion is the lifeblood of the administrative process . . . .”[1] The history of administrative law in the United States constitutes a series of ongoing attempts to legitimize unelected public administration in a constitutional liberal democracy.[2]  It is a history of many twists and turns in which public administration and […]

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27Oct

The Age of Greed and the Sabotage of Regulation

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By: Rena Steinzor* Introduction The congressional debate over whether the government engages in ruinous “overregulation” is only occasionally coherent.  Sometimes it is downright bizarre, and never is it for the faint of heart.  The intensely disturbing dynamic between grandstanding, conservative Representatives and hypersensitive, anxiety-ridden White House operatives has evolved to the point that it threatens […]

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27Oct

Capture Nuances in Financial Regulation

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By: Lawrence G. Baxter* Introduction In early May 2012, a select group of America’s most powerful bankers was ushered into a meeting with the Governor most responsible for bank regulation at the Board of Governors of the Federal Reserve System (“Fed”).[1]  The bankers were there to express their concerns about far-reaching proposed regulations designed to […]

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27Oct

The Benefits of Capture

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By: Dorit Rubinstein Reiss Introduction [N]ot all capture is bad.  It surely is bad for regulators to believe that ‘what’s good for General Motors is good for America’; but it is also undesirable for regulators to believe that ‘what’s bad for General Motors is of no consequence to America’.[1] Observers of the administrative state warn against […]

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27Oct

Democracy and Administrative Legitimacy

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By: David Arkush* This Essay examines the three ideals that underlie most models of administrative legitimacy—the rule of law, sound public policy, and democracy—as well as their associated models of administration, and it argues that administrative legitimacy efforts are best focused on the democracy ideal.  Reforms guided by the rule of law and public policy […]

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27Oct

Hyperdepoliticization

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By: Edward Rubin* The effort to insulate public administration from the tempestuous intensity of political controversy is a dominant theme in the history of American government.  At the federal level, it is older than the administrative state itself, having been put in issue by the transition from the Federalists to the Jeffersonian Democrats in 1800[1]—the […]

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27Oct

Enhancing the Role of Public Interest Organizations in Rulemaking via Pre-Notice Transparency

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By: Richard Murphy* In 1983, then-Administrator William Ruckelshaus promised that under his leadership, EPA would operate “in a fishbowl.” I wish to reaffirm this commitment and take the opportunity to provide guidelines about how we will ensure transparency in our interactions with all members of the public. Lisa Jackson, EPA Administrator[1] Introduction The basic template […]

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