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Table Of Contents, Vol. 83, No. 2

Nebraska Law Review

No abstract provided.

Commercial Use Of Protected Health Information Under Hipaa's Privacy Rule: Reasonable Disclosure Or Disguised Marketing?, June Mary Makdisi

Nebraska Law Review

April 14, 2003, marked the beginning of a new era in America’s healthcare industry because access or exchange of sensitive data may occur only under the conditions outlined in a complex new regulatory scheme referred to as the Privacy Rule. The Rule, meant to safeguard health information privacy, is an offshoot of health care directives provided by the Health Insurance Portability and Accountability Act of 1996 (HIPAA). This article explores how well the Rule protects patient privacy, particularly in the context of permissible disclosures that a consumer might regard as commercial marketing. Part I introduces the issue by explaining the …

Comfort With The Majority: The Eighth Circuit Weighs In On The Proper Pleading Test For A Securities Fraud Claim In Florida State Board Of Administration V. Green Tree Financial Corporation, 270 F.3d 645 (8th Cir. 2001), Erin M. O'Gara

Nebraska Law Review

This Note argues that the Private Securities Litigation Reform Act of 1995 neither codified nor rejected the Second Circuit’s motive-and-opportunity pleading test and accompanying case law, instead leaving the matter to the courts. Left with this flexibility, the Eighth Circuit should have adopted the Second Circuit’s motive-and-opportunity test and the accompanying Second Circuit case law. The motive-and-opportunity test, and the accompanying Second Circuit case law, best furthers the policies and considerations underlying the Reform Act, namely the deterrence of meritless strike suits, the protection of investors in the securities market, and the establishment of a uniform pleading system for securities …

Unraveling The Labyrinth: A Proposed Revision Of The Nebraska Juvenile Code, Mark Ells, Robert B. O'Neal, Victoria Weisz, Jennifer Conner

Nebraska Law Review

I. Introduction . . . . . 1128

II. Terminology . . . . . 1132

A. Child in Need of State Protection . . . . . 1137

1. Current Statute . . . . . 1137

2. Proposed Changes . . . . . 1137

3. Meaning of the Changes . . . . . 1138

4. Rationale . . . . . 1138

5. Legal Issues . . . . . 1139

6. National Perspective . . . . . 1139

7. International Perspective . . . . . 1140

8. Social Science Research . . . …

Corporate Tax: The Agony And The Ecstasy, William J. Rands

Nebraska Law Review

For many years I have been teaching Corporate Tax to law students. To enjoy a course in a subject matter (and law school for that matter), there needs to be more for the professor than just doing a job and more for the students than just preparing for a job. And, in Corporate Tax, usually there is. Most of us, professors and students, enjoy the challenge of attempting to master, analyze, resolve, apply, and, sometimes, just comprehend complex statutory systems and factual problems. Otherwise, Corporate Tax would be drudgery. For us, it is not. Corporate tax law comprises a group …

The English Costs War, 2000–2003, And A Moment Of Repose, Stephen E. Kalish

Nebraska Law Review

In both the United States and England, accident victims are often entitled to compensation from negligent defendants and the defendants’ liability insurers. Accident claimants in the two countries, however, have different ways of funding their claims and litigation. In the United States, claimants use the American-style contingent fee agreement to pay for lawyers. In England, claimants have relied on legal aid and the two-way costshifting “English Rule,” pursuant to which a prevailing party can recover his solicitor’s fees and litigation costs, including counsel’s fees, from the losing litigant. Over the last decade, dramatic changes have been made to the English …

A New Corps Of Discovery For Missouri River Management, Sandra B. Zellmer

Nebraska Law Review

On the Missouri River, tensions have run high ever since the Corps of Discovery explored the river’s furthest reaches in the early 1800s, with conflict between navigation and ecological protection in the Missouri River basin. Upper basin states are pitted against lower basin states, and both have had their run-ins with federal agencies. The U.S. Army Corps of Engineers stands at the vortex of the controversy while the states as well as environmental and commercial associations demand contradictory and even mutually exclusive responses in river operations. The objective of this article is two-fold: first, to show that the Master Manual …

Table Of Contents, Vol. 82, No. 3

Nebraska Law Review

No abstract provided.

Standards Of Conduct And Standards Of Review In Corporate Law: The Need For Closer Alignment, Gregory Scott Crespi

Nebraska Law Review

I. Introduction . . . . . 671

II. Assessing the Argument for Maintaining Divergent Standards for the Corporate Fiduciary Duty of Care . . . . . 673

A. The Limited Body of Scholarship Justifying Divergent Standards in the Corporate Law Context . . . . . 673

B. The Dan-Cohen Arguments and the Singer Response . . . . . 676

1. Bentham’s Recognition of the Distinction Between Conduct Rules and Decision Rules . . . . . 676

2. The Prerequisite of Acoustic Separation . . . . . 678

3. The Argument for Legitimacy . . …

Ucc Article Nine Revised: Priorities, Preferences, And Liens Effective Only In Bankruptcy, Richard L. Barnes

Nebraska Law Review

This article explores two straightforward concepts, one from bankruptcy, and one from the priority scheme of Article Nine of the Uniform Commercial Code. Together these concepts show that the current revised version of Article Nine continues and even expands a conflict between Article Nine and the federal Bankruptcy Code which should cause some Article Nine provisions to be questioned. The bankruptcy provision is section 545. The expansive approach of Article Nine is most obvious in sections 9-331, 9-325, and 9-334. Part II of this article describes the conflict by looking at the origin and scope of section 9-306 of the …

Protection For Invasions Of Conversational And Communication Privacy By Electronic Surveillance In Family, Marriage, And Domestic Disputes Under Federal And State Wiretap And Store Communications Acts And The Common Law Privacy Intrusion Tort, Richard C. Turkington

Nebraska Law Review

The legality of electronic surveillance of conversations and accessing of e-mail is complicated. Several legal institutions are implicated by these activities. Section I of this article identifies the values that are at stake when electronic surveillance is employed in marriage and custodial disputes. Section II examines the legality of electronic surveillance in domestic disputes under state and federal wiretap and stored communications acts and the common law privacy intrusion tort. Section III examines the extent to which the fruits of violations of wiretap and stored communications acts or the privacy intrusion tort are excluded from divorce and custody proceedings. Section …

Double Jeopardy And Nonmember Indians In Indian Country, Terrill Pollman

Nebraska Law Review

I. Introduction . . . . . 889

II. Background . . . . . 895

A. Demographics in Indian Country . . . . . 895

B. Double Jeopardy and the Dual Sovereignty Doctrine in Indian Country . . . . . 899

1. The Dual Sovereignty Doctrine . . . . . 899

2. United States v. Wheeler . . . . . 902

C. Criminal Jurisdiction in Indian Country . . . . . 906

1. Criminal Jurisdiction in Indian Country . . . . . 907

2. Oliphant v. Suquamish Indian Tribes . . . . …

Indexes To Volume 82

Nebraska Law Review

No abstract provided.

Table Of Contents, Vol. 83, No. 1

Nebraska Law Review

No abstract provided.

The Nebraska Supreme Court Lets Its Probation Department Off The Hook In Bartunek V. State, 266 Neb. 454, 666 N.W.2d 435 (2003): "No Duty" As A Non-Response To Violence Against Women And Identifiable Victims, Gretchen S. Obrist

Nebraska Law Review

Because of the negligent supervision of one of its habitually violent intensive supervision probationers, the State of Nebraska allowed DaNell Bartunek to become the victim of a violent, knife-wielding attempted rape by her former boyfriend. This violent sexual assault followed a pattern of abuse and stalking directed at Bartunek, which the State knew about and had the ability to end by adequately controlling its probationer; however, the State did not intervene before the attack. The Nebraska Supreme Court has now decided that the State will not be held accountable for its lack of supervision and that Bartunek must bear the …

Prescribing The Right Dose Of Peer Review For The Endangered Species Act, J. B. Ruhl

Nebraska Law Review

Environmental law stands out among all fields of law as the one most concerned with the physical world around us. Alas, environmental law seems puny and confused compared to its intended beneficiary, and we have made many mistakes as it has developed. However, the so-called “sound science” movement claims to be able to improve decisionmaking under environmental law. In this article, I focus on scientific-style peer review, one component of sound science, and examine whether, depending on how it is dosed out, it could be counterproductive for environmental law. I examine the quality of peer review using the Endangered Species …

The Good, The Bad, And The Ugly: The First Ten Years Of The Oregon Water Trust, Janet C. Neuman

Nebraska Law Review

The Oregon Water Trust is a nonprofit corporation that opened its doors and its pocketbook in 1994 to buy water for streamflows. Its portfolio contains eighty-seven current water rights deals, including permanent purchases of water rights, short- and long-term leases, exchange and forbearance agreements, conserved water projects, and nongeneration agreements, all together protecting a total of more than 124 cubic feet per second of water in eleven basins across the state of Oregon. This article offers some observations and generalizations about water markets derived from the Oregon Water Trust’s decade of experience. Part II describes the particular perspective that the …

Out-Of-Priority Water Use: Adding Flexibility To The Water Appropriation System, Lawrence J. Macdonnell

Nebraska Law Review

The concept of “priority”—an objective basis for allocating a limited resource—is fundamental to the prior appropriation doctrine. Since Irwin v. Phillips courts in the western states have used the principle of first-in-time, first-in-right to determine respective rights of competing appropriators from the same source of water. Priority is, however, a purely temporal basis for establishing rights, and the historical function of prior appropriation law—to make an initial allocation of the West’s water resources among potentially competing claimants—has been largely completed. Thus, those wanting to make a new use requiring water must look to those already holding water allocations. Water law …

The Republican River Dispute: An Analysis Of The Parties' Compact Interpretation And Final Settlement Stipulation, Aaron M. Popelka

Nebraska Law Review

With the arrival of the twentieth century, technology allowed surface water supplies to be used by communities, industry, and agriculture in greater quantities, and be used farther away from the water’s source. In addition, public works undertaken in the wake of the Great Depression in the 1930s allowed states to impound vast quantities of water. With increased consumption and impounding of water, interstate allocations of shared surface water needed to be regulated, and one of the prevalent means of accomplishing this task was the creation of interstate compacts. States began negotiating these water compacts among themselves to set forth specific …

Effect Of Military Culture On Responding To Sexual Harassment: The Warrior Mystique, Michael I. Spak, Alice M. Mccart

Nebraska Law Review

Since September 11, 2001, criticizing firefighters, the police, or the military seems downright unpatriotic, if not treasonous. The purpose of this article is not to undermine the effectiveness of the U.S. military but to point out a weakness by suggesting that increased awareness of a problem and proposed solutions is one of the first steps toward resolution. It is time for more Americans to become aware of unfair treatment of women within the U.S. military, particularly regarding sexual harassment, so that some of the solutions that experts have proposed can have a chance at implementation and a chance at success, …

Table Of Contents, Vol. 82, No. 4

Nebraska Law Review

No abstract provided.

Reexamining The Labeling For Biotechnology In Foods: The Species Connection, Margaret Gilhooley

Nebraska Law Review

I. Introduction . . . . . 1089

II. Regulatory Framework for Biotechnology in Foods . . . . . 1096

A. FDA Safety Authority with Respect to New Plant Varieties . . . . . 1096

1. FDA Basis for Safety Regulation: The 1992 Policy Statement . . . . . 1096

2. Emergent Uses and FDA’s 2001 Proposal for Pre-Market Notice . . . . . 1097

B. FDA Safety Regulation for Animal Biotechnology: Growth and Yield Promotion . . . . . 1098

C. Pest and Crop Protection Uses of Biotechnology . . . . . 1098 …

In Memoriam: Professor Norman W. Thorson, Harvey S. Perlman, John H. Davidson, Keith G. Meyer, Richard S. Harnsberger

Nebraska Law Review

Eulogies for friend and colleague Professor Norman W. Thorson.

Not On "Shaky Grounds": Lawrence V. Texas, 123 S. Ct. 2472 (2003), And The Constitutionality Of State Domas Such As Nebraska's Marriage Provision, Neb. Const. Art. I, § 29, Kevin R. Corlew

Nebraska Law Review

In June 2003 the U.S. Supreme Court struck down a controversial homosexual sodomy statute in Lawrence v. Texas. The issue was whether the Due Process Clause of the Fourteenth Amendment permitted a state to criminalize private and consensual sexual activity between adults. The Court held that it did not. Since the decision, much of the public discourse has turned to the subject of marriage and whether or not existing state laws that exclude same-sex marriages from public recognition will be able to stand in light of Lawrence. People on both sides of the issue assert that Lawrence paves the …

Avoiding Regulatory Mismatch In The Workplace: An Informational Approach To Workplace Safety Regulation, Thomas A. Lambert

Nebraska Law Review

In the course of exploring the range of regulatory options, this article attempts to make several contributions to the literature on workplace safety regulation. First, it seeks to flesh out some concrete policies aimed at providing workplace risk information to employees. Next, the article responds to behavioral theorists who argue that individuals’ cognitive limitations and biases necessarily render ineffective an information-provision approach to workplace safety regulation. This article shows that even if the behavioralists are correct in their claims about individuals’ limited abilities to process risk information, an information-provision approach may be effective. Finally, the article demonstrates that the informational …

Symposium: Water Law, Policy, And Science, Gretchen S. Obrist

Nebraska Law Review

Editor’s symposium-issue introduction to the articles resulting from the March 4–5, 2004, First Annual Water Law, Policy, and Science Conference (“Finding Solutions to Multijurisdictional Water Conflicts”) at the University of Nebraska.

The Western Common Law Of Tributary Groundwater: Implications For Nebraska, J. David Aiken

Nebraska Law Review

Nebraska water law is on a collision course with reality. Nebraska judges and water policy makers have ignored the hydrologic connection between surface water and tributary groundwater, the groundwater that provides the stream’s base flow. The basic premise of this article is that the use of tributary groundwater must be integrated into surface water law. Fortunately, in response to federal and interstate requirements, much of the needed legislative action has been taken. But judicial steps must also be taken to complete the legal framework for integrating tributary groundwater into the appropriation system. This article focuses on how western courts have …

The Calculus Of Animal Valuation: Crafting A Viable Remedy, Margit Livingston

Nebraska Law Review

For most of recorded history, the majority of legal systems have regarded domesticated animals as a species of property. Part I of this article reviews the traditional method of valuing animals in tort cases and notes that some modern courts have expanded beyond the classic fair market value standard and have allowed pet owners to recover for the value of the pet to them or even for loss of affection and companionship. Most courts, however, still value animals according to their fair market value, and Part I asserts that this method of valuation produces severe undercompensation of pet owners in …

Larsen V. D B Feedyards, Inc., 264 Neb. 483, 645 N.W.2d 306 (2002): The Abrogation Of The Agricultural Exemption In Nebraska Workers' Compensation?, Stephanie E. Frost

Nebraska Law Review

Workers’ compensation statutes provide a form of mandatory insurance, guaranteeing compensation without regard to fault for employees who suffer injuries while in the course and scope of their employment. Not all employees or employers, however, are protected by state workers’ compensation statutes. In the first half of the 20th century, most jurisdictions enacted exclusions to the provisions of their workers’ compensation statutes for agricultural operations or agricultural laborers. The transformation of agriculture from traditional family farm to commercial operation has resulted in legal difficulties in determining whether a farm is the traditional farm operation which the workers’ compensation statutes were …

Speculating On Stock Options And Child Support: Long On Income And Short On Value (And Theory)—A Jurisprudential Attempt At A Butterfly Straddle?, David S. Rosettenstein

Nebraska Law Review

The article commences with a brief overview of the objectives that can underpin a child support obligation. For this purpose, the article relies heavily on the analysis contained in the American Law Institute’s “Principles of the Law of Family Dissolution,” which reflects the vast majority of themes found scattered in buckshot fashion through the jurisprudence of the various states. This is followed by a similarly brief look at aspects of the conceptual underpinnings of the formulae used to calculate child support, again relying very heavily on the Principles. This leads to a consideration of the resources, actual or imputed, which …