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Toward A Theory Of Public Rights: Article Iii And The Bankruptcy Amendments And Federal Judgeship Act Of 1984, Jeffrey H. Bush

Nebraska Law Review

I. Statement of the Problem

II. Crisis in the Bankruptcy Courts ... A. The Bankruptcy Act of 1898 ... B. The Bankruptcy Reform Act of 1978 ... C. Northern Pipeline ... D. The Emergency Rule ... E. The Bankruptcy Amendments and Federal Judgeship Act of 1984

III. Article III Jurisprudence ... A. Northern Pipeline's Formalism ... B. Since Northern Pipeline: Thomas and Schor—A Functional Approach ... 1. Thomas ... 2. Schor ... 3. Result of Thomas and Schor ... C. Granfinanciera—Questioning the Validity of the Core Proceeding

IV. A Proposed Theory of Public Rights ... A. A …

The Psychotherapist's Duty To Protect The Public: The Appropriate Standard And The Foundation In Legal Theory And Empirical Premises, Robert F. Schopp

Nebraska Law Review

I. Introduction

II. Schuster and Hamman ... A. Schuster v. Altenberg ... B. Hamman v. County of Maricopa ... C. The Common Foundation of Schuster and Hamman

III. Previous Cases ... A. STIV [specific threats toward identifiable victims] Cases ... B. ZOD [zone of danger] Cases ... C. Comparison of STIV Cases with Earlier ZOD Cases

IV. Analysis ... A. The Duty to Protect and the Duty to Warn ... B. Determined or Should Have Determined ... C. The ZOD Standard as Self-Defeating

V. Summary and Conclusions

Wrongful Pregnancy Actions: Should Courts Allow Recovery For Childrearing Expenses?—Burke V. Rivo, 406 Mass. 764, 551 N.E.2d 1 (1990), Michael C. Pallesen

Nebraska Law Review

"Wrongful pregnancy" actions are a type of medical malpractice involving a physician's negligent performance of a sterilization procedure. The majority of courts addressing wrongful pregnancy claims have held that the plaintiffs have a valid cause of action and have awarded traditional tort remedies of general and special damages relating to actual medical services incident to the birth and delivery—but not the costs of raising the child. Controversy in recent cases has been over awarding childrearing costs. Several courts have departed from the majority and awarded these damages; Burke v. Rivo is the latest. The Burke court held that in addition …

A Practitioner's Primer To The Fourth Amendment, Josephine R. Potuto

Nebraska Law Review

I. Introduction

II. In General ... A. Fourth Amendment Terms Defined ... B. Establishing Probable Cause ... 1. Using Common Sense ... 2. It's the Magistrate's Decision ... C. Necessity of Obtaining a Warrant and What It Means to Say That a Warrant Must Be Obtained ... 1. Arrests ... 2. Search and Seizure ... D. Particularity in Describing Situs of Search or Items to Be Seized ... E. Reasonable Scope of Search ... F. Place to Be Searched

III. Exceptions to the Warrant Requirement ... A. Good Faith ... B. Search Incident to Arrest ... C. Consent ... D. …

A Century Of Developing Citizenship Law And The Nebraska Influence: A Centennial Essay, Anna Williams Shavers

Nebraska Law Review

I. Introduction

II. A Brief Summary of the Law of Citizenship

III. The Nebraska Cases ... A. Boyd v. Thayer ... B. Elk v. Wilkins

IV. An Examination of Intent in the Development of Citizenship Law as Influenced by Elk and Boyd ... A. Intent as a Determinant of Citizenship ... 1. Acquisition at Birth ... 2. Derivative Naturalization ... 3. Loss of Citizenship ... B. Statutory Procedures Affecting Intent ... 1. Proof Problems ... 2. The Rise and Fall of the Declaration of Intention ... C. Distinguishing between Citizens: Second-Class Citizenship?

V. Summary and Conclusions

Capitalist Punishment: The Wisdom And Propriety Of Private Prisons, Stephanie Frazier Stacy

Nebraska Law Review

This session, the Nebraska Legislature will again be considering a bill which, as introduced, gave the Nebraska Department of Correctional Services (DCS) authority to contract with the private sector for incarceration of those persons committed to the Department's custody. The purpose of this Comment is to familiarize the reader with some of the problems posed by prison privatization in general and point out possible constitutional obstacles facing privatization in Nebraska. Part II of this Comment provides background on the magnitude of today's prison crisis and presents arguments most commonly propounded both for and against private prisons. Part III considers possible …

Table Of Contents, Vol. 70, No. 2

Nebraska Law Review

No abstract provided.

A Theoretical Analysis Of Professional Partnership Goodwill, Larry E. Ribstein

Nebraska Law Review

The existence and ownership of the "goodwill" of professional partnerships' is one of the most muddled subjects in partnership law. This article concludes that the accounting concept of goodwill does not help identify the rights of withdrawing partners or partners' spouses in professional partnerships. The central problem is the difficulty of separating what is owned by such firms from the human capital owned by the partners individually. The article substitutes for the accounting approach a theoretical analysis of the partners' rights that views the rights of withdrawing partners in terms of optimal default compensation rules. It leads to the conclusion …

"Disintegrating Erosion" Of Fiduciary Duty In The Dissolution Of A Partnership At Will, Rodney M. Confer, Cheryl R. Zwart

Nebraska Law Review

I. Introduction

II. Thomas v. Marvin E. Jewell & Co. ... A. Factual Background and District Court Judgment ... 1. Allocation of Income ... 2. Client Files and Solicitation ... 3. Accounts Receivable Letters ... B. Nebraska Supreme Court Opinion ... 1. Allocation of Income ... 2. Client Files and Letters to Clients

III. Analysis of the Nebraska Supreme Court's Opinion in Thomas v. Marvin E. Jewell & Co. ... A. Wrongful Dissolution ... B. Fiduciary Duties between Partners ... C. Duration of the Fiduciary Relationship ... 1. The Fiduciary Duty after Dissolution of Marvin E. Jewell & Co. ... …

Inclusionary Zoning Devices As Takings: The Legacy Of The Mount Laurel Cases, Lawrence Berger

Nebraska Law Review

I. Introduction

II. Mount Laurel I

III. Oakwood at Madison

IV. Mount Laurel II

V. Political and Legislative Reaction to Mount Laurel II ... A. The Fair Housing Act of 1985 ... B. Preliminary Results under the Fair Housing Act

VI. Analysis of the Mandatory Set-Aside and Density Bonus ... A. Takings Analysis—Nollan and the Means-Ends Review ... B. Subdivision Exactions—Nexus between the Proposed Activity and the Public Need ... C. Density Bonuses as Compensation

VII. An Overall View

Table Of Contents, Vol. 70, No. 3

Nebraska Law Review

No abstract provided.

Living With Ghosts, John Rockwell Snowden

Nebraska Law Review

I. Introduction

II. Law and Morality

III. A Psychological Jurisprudence of Everyday Experience: Some Puzzles ... A. Reflection and Existence ... B. Contradiction ... C. Dreams ... D. Morality and Law and Greed

IV. Conclusion

Legal Research Tools For The Nebraska Practitioner: An Annotated Bibliography, Sally H. Wise, Patricia A. Cervenka

Nebraska Law Review

The intent of this article is to provide an annotated list of materials that may be useful in doing Nebraska legal research or for the acquisition of materials for a practitioner's library. The list may be of help to the new attorney who does not know the range of subjects covered by publications. The bibliography should also be of interest to the experienced attorney who has not had the opportunity to learn about the materials available online or on compact disk.

I. Introduction

II. Reference Works ... A. Reference Guides ... 1. Books ... 2. Computers ... B. Form Books …

Table Of Contents, Vol. 70, No. 4

Nebraska Law Review

No abstract provided.

The Plaintiff's Burden In Sex-Based Wage Discrimination Claims—International Union, United Automobile, Aerospace & Agricultural Implement Workers Of America V. State Of Michigan, 886 F.2d 766 (6th Cir. 1989), Christine Y. Martin

Nebraska Law Review

International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. State of Michigan (UAW) is the most recent interpretation of a plaintiff's evidentiary burden under a Title VII claim of sex-based wage discrimination. UAW held that job evaluation studies showing pay differentials between female and male dominated jobs of equal worth are insufficient to prove intentional discrimination. The court's holding was not required by previous case law and serves to make sex-based wage discrimination claims more difficult to prove than other Title VII claims. A plaintiff bringing a sex-based wage discrimination claim can no longer create …

Arbitrability In Nebraska, John M. Gradwohl

Nebraska Law Review

I. Introduction

II. Coverage of the Nebraska Act ... A. Section 25-2602 in General ... B. Existing Controversies ... C. Future Disputes ... 1. Effect of an Award ... 2. Constitutionality ... 3. Voluntariness/Contract of Adhesion ... 4. Personal Injury Claims ... D. Employment Agreements ... E. Statutory Claims

III. Coverage of the Federal Arbitration Act ... A. Preemptive Substantive Law ... B. Grounds for Revocation ... C. "Evidencing a Transaction Involving Commerce" ... D. Choice of Laws ... E. Relationship to Other Federal Statutes ... F. State Claims Other Than Breach of Contract ... G. Business of Insurance ... …

Corruption, Corrosion, And Corporate Political Speech, Nicole Bremner Cásarez

Nebraska Law Review

I. Introduction

II. Direct Democracy in America ... A. Direct Democracy Defined ... B. History of Direct Democracy

III. The Rise of Corporate Speech ... A. Commercial Speech ... B. Political Speech ... 1. Buckley v. Valeo ... 2. First National Bank of Boston v. Bellotti ... 3. Consolidated Edison v. Public Service Commission ... 4. Citizens Against Rent Control v. City of Berkeley

IV. The Decline of Corporate Political Speech ... A. FEC v. National Right to Work Committee ... B. FEC v. National Conservative Political Action Committee ... C. Pacific Gas & Electric Co. v. Public Utilities Commission …

Comment: A Departed Partner's Liability For The Post-Departure Malpractice Of Her Ex-Colleagues—A Practical Approach, Stephen E. Kalish

Nebraska Law Review

Lawyers usually practice in law partnerships, and regularly, and with increasing frequency, join and depart these law firms. Commentators have only recently begun to examine the law governing the departure of partners from law firms. The purpose of this Comment is to examine one small aspect of the law governing this mobility: the post-departure liability of departed lawyers for malpractice committed by the remaining, servicing (to the client), ex-partners. The discussion will demonstrate how a too rigorous application of partnership law to the law firm situation leads to bad law. The Comment suggests that the client-law firm retainer agreement, which …

Interstate Transfers Of Water: State Options After Sporhase, Richard S. Harnsberger, Josephine R. Potuto, Norman W. Thorson

Nebraska Law Review

I. Introduction

II. Sporhase v. Nebraska: An Analysis of the Case and Nebraska's Response to It ... A. The Law Prior to Sporhase ... B. The Sporhase Case ... 1. The Facts ... 2. Origin of the Nebraska Groundwater Export Statute ... 3. The Litigation in Nebraska ... 4. The United States Supreme Court Opinion ... a. Water as an Article of Commerce ... b. An Impermissible Burden on Interstate Commerce ... c. The Reciprocity Clause ... d. Congressional Authorization ... 5. The Supreme Court Dissent ... 6. The Case Back in Nebraska ... 7. Conclusion ... C. Nebraska …

Back To The Future Of Postloss Insurance Conditions In Nebraska: German Insurance Co. V. Fairbank, 32 Neb. 750, 49 N.W. 711 (1891), Robert Works

Nebraska Law Review

I. Introduction

II. The Fairbank Decision ... A. Fairbank Redux ... 1. The Mortgage Condition ... 2. The Suit Condition ... 3. The Proofs of Loss Condition ... B. Fairbank Located

III. Legal Control of Juridical Hazard Provisions ... A. What Are "Juridical Hazard" Provisions? ... B. Why Juridical Hazard Provisions Are Vulnerable ... C. A First Historical Example: Moral Hazard Warranties ... D. The Legislative Response: Standard Forms and Warranty Statutes ... E. A Second Example: Postloss Conditions

IV. Conclusion

The Possible Future Of Private Rights Of Action For Proxy Fraud: The Parallel Between Borak And Wilko, C. Steven Bradford

Nebraska Law Review

I. Introduction

II. Wilko v. Swan

III. The Subsequent Treatment of Wilco ... A. Chipping at the Foundation ... B. Rejecting the Wilko Analysis ... C. The Death of Wilko—Rodriguez De Quijas v. Shearson/American Express, Inc.

IV. J. I. Case Co. v. Borak

V. The Subsequent Treatment of Borak ... A. Chipping at the Foundation ... B. Rejecting the Borak Analysis

VI. Will Borak Survive? Possible Distinctions ... A. Changed Circumstances ... B. Wilko's Inconsistency with McMahon ... C. The Supreme Court's Other Proxy Fraud Opinions

VII. Conclusion

VIII. Postscript

Table Of Contents, Vol. 70, No. 1

Nebraska Law Review

No abstract provided.

The Rise And Decline Of The Constitutional Protection Of Religious Liberty, Jesse H. Choper

Nebraska Law Review

I. The Early Insignificance of the Free Exercise Clause ... A. Free Exercise Violations Abridging the Freedom of Speech ... B. Rejection of Free Exercise Claims Involving Religiously Motivated Conduct

II. The Court Vitalizes the Free Exercise Clause

III. Rejection of Subsequent Free Exercise Claims ... A. Government Interests in National Defense and Combatting Racial Discrimination in Education ... B. Special Contexts: Military and Prison Affairs ... C. Compelling Government Interest in an Exemption-Free Tax System ... D. A Structural Distinction Limiting the Scope of the Free Exercise Clause

IV. Evaluating Smith

V. The Remaining Protection of Religious Liberty under …

Enforcement Of Partnership Rights—Who Sues For The Partnership?, Alan R. Bromberg

Nebraska Law Review

I. Introduction ... A. In General ... B. Enforcement of Partnership Rights

II. Enforcement of Partnership Rights by All Partners ... A. In General ... B. Sufficiency of All Partners ... C. Necessity of All Partners ... D. Rationales; Preclusive Effect of Enforcement by Fewer Than All Partners

III. Enforcement of Partnership Rights by Fewer Than All Partners—Uniform Partnership Act Criteria ... A. In General ... B. Equal Management Rights ... C. Majority Rule for Ordinary Matters on Which There Is Disagreement ... D. Use of Partnership Property ... E. Partner Authority ... F. Effect of Partnership Agreement

IV. Enforcement …

Federal Income Tax Consequences Of Partnership Mergers, Bryan E. Slone

Nebraska Law Review

For various business and tax reasons, two or more partnerships may choose to consolidate their operations pursuant to a partnership merger. Whatever the reasons for a partnership merger, careful consideration of federal income tax consequences is generally no less important than in the case of a corporate merger transaction. This article begins by describing the partnership termination rules, including both the general rule under section 708(b)(1) and the special merger exception under section 708(b)(2)(A). This discussion, combined with the subsequent description of the characterization of partnership merger transactions of the Internal Revenue Service (IRS) in existing rulings, form the basis …

The Limited Liability Company: An Organizational Alternative For Small Business, Sylvester J. Orsi

Nebraska Law Review

States are enacting legislation that permits creation of a new business entity known as the Limited Liability Company (LLC). The drafters of this legislation expressly intended to provide business planners with an alternative to corporations and partnerships. Part II of this article acquaints readers with the more prominent provisions of existing LLC legislation. Part III addresses the criteria used to establish partnership status for federal income tax purposes, and recent success in securing that status for LLCs. While the LLC's pass-through taxation is virtually assured, concern persists about whether other states will respect its other chief characteristic, limited liability. Part …

Introduction: Centennial Showcase Of Law College Faculty, Harvey Perlman

Nebraska Law Review

During 1991 the University of Nebraska College of Law celebrates its centennial year, recognizing the action in 1891 of the university's Board of Regents that acquired the privately owned Central Law School and established the college as part of the University of Nebraska. The early-twentieth-century volumes of the college’s Nebraska Law Review were almost exclusively the work of the college's faculty. Each of the eight issues of the first two volumes contained a single article written by a member of the faculty. To celebrate the centennial, the Review is returning to its initial tradition—the lead articles in this issue and …

Off The Mark: The Nebraska Supreme Court And Judicial Nominating Commissions, Steven L. Willborn

Nebraska Law Review

When the Nebraska Legislature enacted the current statutes that regulate judicial nominating commissions, it was 100 percent certain that the statutes required commissions to select or reject candidates for judicial office through a public roll call vote. Last October, 100 percent of the Nebraska Supreme Court was certain that those same statutes permit, and indeed may require, judicial nominating commissions to conduct their voting in secret. This article explores this strange state of affairs. The article first analyzes Marks v. Judicial Nominating Commission, the case in which the supreme court decided that the voting of judicial nominating commissions could …

Does Liability Under The Equal Pay Act Automatically Lead To Title Vii Liability?—Fallon V. State Of Illinois, 882 F.2d 1206 (7th Cir. 1989), Danay A. Kalkowski

Nebraska Law Review

This Note examines the reasoning behind the several circuit courts' (Tenth, Ninth, Eighth, and Sixth) differing answers to the question of whether a violation of the Equal Pay Act will automatically lead to Title VII liability and the effect the different answers have on the allocation of the burden of proof under a Title VII claim. Finally, a critical analysis is done to determine which rule—the "equivalence" or "no equivalence"—is based upon better reasoning.

The Architectural Works Copyright Protection Act: Analysis Of Probable Ramifications And Arising Issues, Andrew S. Pollock

Nebraska Law Review

Architectural works, as expressed and embodied in buildings, architectural plans, and drawings, stand protected as subject matter of copyright, effective December 1, 1990. On that date, President Bush signed legislation that created a new category of protectable subject matter for architectural works. The new law, titled the Architectural Works Copyright Protection Act, effects changes that were determined necessary to fulfill requirements of the Berne Convention, to which the United States became a signatory on March 1, 1989.

I. Introduction

II. Analysis of Definitions

III. Analysis of the New Subject Matter

IV. Analysis of Scope of Exclusive Rights in Architectural Works …