New Book By Justice Mark Davis ’91 Documents the Impact of Chief Justice Jim Exum’s Years Leading the North Carolina Supreme Court

December 21, 2019

This article originally appeared in the Fall-Winter 2019 issue of Carolina Law.

In his debut book, A Warren Court of Our Own: The Exum Court and the Expansion of Individual Rights in North Carolina, Mark Davis ’91, an associate justice on the North Carolina Supreme Court, examines the transformational impact of the eight years in which Chief Justice Jim Exum presided over the Supreme Court of North Carolina.

“Between 1986 and 1995, when Exum led the court, you had the perfect storm for change: the court was comprised of a younger generation of justices who did not feel as bound as their predecessors to rigidly apply the doctrine of stare decisis, the principle that courts should not overrule a precedent set by that court,” says Davis.

A Warren Court of Our Own book cover

“In addition, that was a time when North Carolina was changing in many ways,” he adds. “The court was being presented with a number of issues of first impression that prior incarnations of the Supreme Court hadn’t dealt with.”

This combination led to a judicial era during which the Supreme Court issued landmark decisions expanding the rights of criminal defendants, animating the declaration of liberties set out in the North Carolina Constitution, and increasing the remedies available to individual plaintiffs in the areas of tort, employment, and workers compensation law.

The book began as Davis’s thesis for his Master of Laws degree in judicial studies from Duke University School of Law. “At the time I wrote this, I was on the North Carolina Court of Appeals,” says Davis. “I noticed early in my tenure that in cases involving individual rights, we would frequently get cited to cases from the North Carolina Supreme Court from the late 1980s and early 1990s.” Intrigued by this, Davis explored further and discovered virtually all the cases were from the Exum Court.

“The Exum Court brought North Carolina’s common law into the modern age, something which hadn’t been done before,” says Davis. “The title of the book is an obvious reference to Earl Warren who was chief justice of the United States Supreme Court in the ‘50s and ‘60s, a time when the U.S. Supreme Court radically transformed constitutional law and greatly expanded the interpretation of the Bill of Rights. To me, the Exum Court is North Carolina’s version of the Warren Court.”

Davis conducted more than 65 interviews for his book, including all the surviving justices of the Exum Court, law clerks, law professors, and court staff. “Even those who were in the thick of it, including Justice Exum himself, didn’t seem to realize the magnitude of what the court accomplished until I started giving them examples,” he says.

“This court is worth celebrating and reading about because it was a Mount Rushmore of justices in one place at one time,” says Davis. “In addition to Jim Exum himself, who is a legendary figure in North Carolina judicial circles, there were four future chief justices—Burley Mitchell, Henry Frye (the first African-American to serve on the court), Sarah Parker and Beverly Lake Jr.—in addition to Willis Whichard, one of the greatest scholars to ever serve on the court. Having these luminaries serving together contributed to the extraordinary jurisprudence that court produced.”

He says that the book helps readers think about which side of the debate they’re on about the extent to which judges should sometimes make law as opposed to merely interpret law. “We’re seeing a lot of attacks on judges today,” says Davis. “It’s important for people to read about what it is that courts actually do.”

Davis hopes that the book helps readers better understand the importance of state courts. “A lot of people don’t realize that 80
to 85% of the cases decided in this country are decided by state courts, which are ruling on very important issues,” he says.

“People are currently turning their attention to state constitutions, based on the perception that the U.S. Supreme Court may not be as willing to expand civil liberties as it has been in the past,” says Davis. “It’s helpful to look at the Exum Court and see what was accomplished in North Carolina several decades ago during this era when people were likewise looking to state courts to protect individual rights.”

— Michele Lynn