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All Rise: Pursuing Equity In Oral Argument Evaluation, Rachel Stabler

Nebraska Law Review

CONTENTS

I. Introduction .....................439

II. Oral Argument Belongs in the Law School Curriculum. 441

III. Evaluating Oral Argument Poses Unique Challenges .448

A. Biases May Affect the Evaluation .........448

1. Cognitive Biases Unrelated to Stereotypes...448

a. The Halo Effect ..............448

b. Confirmation Bias and Teacher Expectancy Effect ...................451

2. Implicit Biases Based on Stereotypes ...... 452

a. Racial Bias ................452

b. Gender Bias ................ 455

c. Other Stereotype-Based Biases and Intersectionality .............. 458

B. Evaluating Oral Argument Can Perpetuate Norms that Burden Women and Students of Color ....460

C. It is Difficult to Ensure a Consistent Experience for the Students …

‘More Than A Woman To Me’: The Need For Gender Inclusive Language In Court Opinions And Statutes Relating To Abortion And Reproductive Health, Murphy Cavanaugh

Nebraska Law Review

After the Supreme Court of the United States returned authority to regulate abortion to the state level in Dobbs v. Jackson Women’s Health Organization, many states began to redraft their statutes, either protecting or eliminating abortion access. In doing this, the Supreme Court intensified demands for gender-inclusive language in reproductive healthcare legislation and court opinions. The ongoing shift in discourse acknowledges the reproductive healthcare needs of transgender and nonbinary (“TGNB”) people, given the already limited access to general healthcare. This comment emphasizes the importance of genderinclusive language in the American legal system, arguing for a departure from anatomy-centered language …

The Structural Harms Of Providing Mental Health Services Through The Bipartisan Safer Communities Act, Heather Swadley

Nebraska Law Review

Many have proclaimed that the Bipartisan Safer Communities Act is the most sweeping gun control legislation to be passed in decades. However, the bill is not primarily a gun control bill—instead, much of the Act seeks to improve mental health services in hopes of preventing gun violence. Such a move is not rooted in established evidence, which finds little predictive value in knowing an individual’s mental health history. In fact, people with mental health disabilities are more likely to be victims of violent crimes than perpetrators. The Act therefore shifts the debate about gun reform from one about easy access …

Direct Democracy: From Theory To Practice Symposium Direct Democracy: From Theory To Practice Symposium: Introduction, Anthony B. Schutz

Nebraska Law Review

On November 13, 2021, the University of Nebraska College of Law convened four panels of experts to discuss direct democracy in Nebraska. The articles appearing in this issue of the Nebraska Law Review are a result of that symposium. These articles are one part of the larger project. A video recording of the symposium is available on You-Tube < https://www.youtube.com/watch?v=A0CPaTiZ1Ng >, and subsequent work will be connected to the project’s website.

This brief introduction situates the articles appearing here within the larger project in three parts. Part II describes the events that necessitated the symposium, focusing on uncertainty attending the single-subject …

Seeing The No-Compelled-Speech Doctrine Clearly Through The Lens Of Telescope Media, Richard F. Duncan

Nebraska Law Review

I. Introduction

II. The No-Compelled-Speech Doctrine: A Summary of the Supreme Court’s Jurisprudence ... A. Justice Jackson’s Iconic Opinion in Barnette ... B. Wooley and Libertarian Authoritarianism ... C. When Government Treats Speech as a Public Accommodation: Hurley’s Unanimous Decision ... D. Justice Kennedy Reaches Across Time to Unite with Justice Jackson

III. A Careful Reading of Telescope Media ... A. Stras Versus Kelly: Regulation of Speech or Conduct? ... B. Stras Versus Kelly: Content-Neutral or Content-Based Law? ... C. Stras Versus Kelly: Strict Scrutiny/Compelling Interest Test

IV. Defending the Reasoning of Telescope Media’s Compelled Speech Decision ... …

The Damages Of Caps In Nebraska, Carey D. Collingham

Nebraska Law Review

I. Introduction

II. Background on the NHMLA [Nebraska Hospital Medical Liability Act] Damage Cap ... A. General Information on the Nature of Damages in Nebraska ... B. The History of NHMLA

III. Argument ... A. Interjurisdictional Precedent ... 1. Fifty-State Survey of Caps ... a. Interjurisdictional Legislative Caps ... i. Punitive Damage Caps ... ii. Medical Malpractice Caps ... b. Interjurisdictional Judicial Action on Caps … i. Right to a Jury ... ii. Open Courts ... iii. Equal Protection ... iv. Separation of Powers ... v. Special Legislation … 2. Interjurisdictional Summary ... B. Theories of Unconstitutionality ... 1. Nebraska …

Custom-Tailored Law: When Statutory Interpretation Meets The Internal Revenue Code, Michelle M. Kwon

Nebraska Law Review

When it comes to statutory interpretation, the traditional approaches fail to consider how the laws being interpreted by the courts were actually made. Instead, they tend to presume a uniform lawmaking process. In reality, the lawmaking process tends to be highly variable, both among, and even within, different areas of law. Traditional interpretive approaches also fail to consider the actual institutional capabilities of Congress or the courts. Textualist approaches give primacy to the words that Congress chose. By doing so, they implicitly assume that legislators accurately constructed the statutory text but pay no attention to whether the actual lawmaking process …

“Essentially Black”: Legal Theory And The Morality Of Conscious Racial Identity, Kenneth B. Nunn

Nebraska Law Review

In philosophy, essentialism involves the claim that everything that exists has a fundamental character or core set of features that makes it what it is. Although this idea developed out of Platonic notions of ideal forms, it has spread beyond philosophy into the social sciences and hard scientific disciplines like mathematics and biology. Since the advent of postmodernism, discussions around essentialism have become controversial. Adherents of postmodern theory argue that social categories, such as gender, race, and sexuality are socially constructed and that essentialist notions of identity, which suggest that identity is static, natural, and unchanging, are theoretically wrong. This …

Judicial Mindsets: The Social Psychology Of Implicit Theories And The Law, Victor D. Quintanilla

Nebraska Law Review

This Article introduces science and research on the social psychology of judging with the aim of advancing a research agenda designed to examine the influence of social, contextual, and situational forces on judicial decision-making: situated cognition. This research agenda investigates the social nature of judging from the perspective of “Behavioral Realism.” In exploring this aspect of judicial behavior, the approach draws on multiple techniques, including experimental methods and theories in the field of social psychology. The field of social psychology offers a unique vantage point to examine how societal forces, social environments, and situations influence judging. For the social …

Inside Looking Out: An Application Of International And Regional Linguistic Protections To The U.S. Spanish-Speaking Minority, Marina A. Torres

Nebraska Law Review

Not since the collapse of the Soviet Union have the subjects of minority and linguistic rights enjoyed such prominence in discussions of the international community. Various legal commentators have suggested several reasons explaining the renewed interest in the subject: the emergence of a multi-polar world politic, the large-scale reappearance of civil and ethnic conflicts, and even the awareness of cultural differences resulting from globalization. The atrocities that came to light after World War II in particular made it painfully clear to the international community the harm that had been committed against individuals because of their membership in a particular group. …

Investigations, Inspections, And Audits In The Post-Sox Environment, Thomas C. Pearson, Gideon Mark

Nebraska Law Review

I. Introduction to Audited Financial Information and Related Litigation

II. The Impact of SOX on Financial Information and Its Reliability

A. Significant Improvements in Accountability from SOX

B. SOX' Significant Ripple Effects

III. Investigations, Inspections, and Audits of Financial Information

A. Internal Investigations of Financial Reporting and D isclosure

B. SEC's Informal Inquiries and Enforcement Division Investigations

C. PCAOB's Inspections and Investigations of CPAs

1. PCAOB's Inspections of CPA Firms

2. PCAOB's Investigations, Disciplinary Processes, and Sanctions

D. Parallel Investigations: IRS Audits, DOJ Investigations, and Others

1. IRS Audits of Corporate Financial Information .

2. Other Parallel Investigations

E. Pressures …

In Re Petition Of The Nebraska State Bar Association To Adopt Rules Of Professional Conduct Governing Attorneys, No. S-36-040001 (Neb. June 8, 2005): Changing The Rules—A Functional Analysis Of Nebraska's Newly Adopted Rules Of Professional Conduct, Joel Logsdon Wiegert

Nebraska Law Review

Regulation of lawyer conduct in the State of Nebraska. Upon the Nebraska Supreme Court's adoption of the Nebraska Rules of Professional Conduct ("Nebraska Rules") through its ruling on In re Petition of the Nebraska State Bar Association to Adopt Rules of Professional Conduct Governing Attorneys, the state shed its distinct position as one of only six jurisdictions not yet utilizing some form of the ABA Model Rules of Professional Conduct. The new system represents the first complete revision of the professional ethical standards to which Nebraska lawyers are held accountable since the adoption of the Code of Professional Responsibility ("Nebraska …

Hate Crime Law And The Limits Of Inculpation, Janine Young Kim

Nebraska Law Review

The enactment of hate crime law-law that enhances the punishment of those whose crimes are motivated by legislatively identified animus or bias ("hate motive")—is widespread in the United States. According to the Anti-Defamation League, almost every state has passed hate crime law in one form or another, whether the hate motive is treated as an element of a criminal offense or as an aggravating factor at sentencing. Notwithstanding its overwhelming popularity, hate crime law has always provoked and continues to provoke contentious debate within legal academia. This debate has proceeded mainly along three distinct, though not unrelated, strands of thought. …

New Hampshire's Education-Funding Litigation: Claremont School District V. Governor, 635 A.2d 1375 (N.H. 1993), Modified, 703 A.2d 1353 (N.H. 1997), Andru H. Volinsky

Nebraska Law Review

Experience in New Hampshire with the Claremont School District v. Governor case is representative of the state-constitution-based school-funding litigation that has developed across the nation in response to the United States Supreme Court’s decision in San Antonio Independent School District v. Rodriguez. This article describes the behind-the-scenes lawsuit development and happenings in the Claremont trials that challenged the state’s school-funding system.

Kennewick Man, Kinship, And The "Dying Race": The Ninth Circuit's Assimilationist Assault On The Native American Graves Protection And Repatriation Act, Allison M. Dussias

Nebraska Law Review

This article examines the Bonnichsen case and the Ninth Circuit's controversial and fundamentally flawed rewriting of the Native American Graves Protection and Repatriation Act (NAGPRA), in light of the history of Native Americans' encounters with anthropologists and of the goals that NAGPRA was intended to achieve. Part II discusses the history of anthropologists' activities involving Native Americans and the remains of their deceased kin, revealing the longstanding practices that NAGPRA was enacted to redress. This historical background provides the context in which NAGPRA must be understood and interpreted, and in light of which decisions under the statute should be made. …

Evolving Business And Social Norms And Interpretation Rules: The Need For A Dynamic Approach To Contract Disputes, Nancy Kim

Nebraska Law Review

This article argues that rapid societal changes require a theory of contract that is capable of evolving with them and urges adoption of a "dynamic" approach to contract disputes. It proposes that adoption of dynamic principles furthers the primary objectives of contract law and is best suited to address evolving social norms and needs. By setting as the primary objective ascertainment of the parties' intent rather than review of words on a page, a dynamic approach better captures the context and the spirit in which the contract was made. Part II briefly summarizes the most commonly cited objectives of contract …

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 …

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 . . …

Conflicts Of Interest Under The Revised Model Rules, W. Bradley Wendel

Nebraska Law Review

This article sets out the existing Nebraska law of multiple client conflicts for the purpose of comparing it with the revised Model Rules of Professional Conduct, approved by the ABA House of Delegates in 2002. The new version of the Model Rules is the result of several years of work by the so-called Ethics 2000 Commission, composed of prominent lawyers, judges, and academics. It preserves the structure and much of the language of the 1983 version of the Model Rules, which differed dramatically from the predecessor Model Code of Professional Responsibility. Because Nebraska has not adopted the Model Rules, it …

Table Of Contents, Vol. 81, No. 4

Nebraska Law Review

No abstract provided.

Symposium: Nebraska And The Model Rules Of Professional Conduct, Susan Poser

Nebraska Law Review

An introduction to the articles resulting from a panel discussion at the November 15, 2002, ethics conference “Nebraska and the Model Rules of Professional Conduct” at the University of Nebraska College of Law. The conference explored some of the important issues involved in replacing the Nebraska Code of Professional Responsibility with the Model Rules of Professional Conduct.

To Provide A Common Conceptual And Linguistic Vocabulary In Order To Foster Ethics Dialogue And Education: The Nebraska Supreme Court Should Adopt The Revised Model Rules—The "Bright Line" Rule Example, Stephen E. Kalish

Nebraska Law Review

Thirty years ago, the Nebraska Supreme Court adopted the American Bar Association's 1969 Model Code of Professional Responsibility. In 1983 the ABA recommended that states abandon its old Model Code and adopt its new Model Rules of Professional Conduct. In 2002 the ABA revised the 1983 version of the Model Rules, and it now recommends states adopt these revisions to the Model Rules. The most important reason Nebraska should adopt the revised Model Rules is they provide a conceptual and linguistic vocabulary for ethics dialogue and education. However, if the same words are used in different ways, conversation …

Indexes To Volume 81

Nebraska Law Review

No abstract provided.

A Better Bar: Why And How The Existing Bar Exam Should Change, Andrea A. Curcio

Nebraska Law Review

I. Introduction . . . . . 364

II. Shortcomings of the Existing Bar Exam . . . . . 369

A. The Pretense That the Exam Protects the Public from Incompetent Lawyers . . . . . 369

B. Overview of the Bar Exam . . . . . 372

C. Critiques of the Existing Bar Exam . . . . . 373

1. Problems with the MBE . . . . . 373

2. Problems with the Essay Questions . . . . . 376

3. Problems with the Multi-State Performance Test . . . . . 378 …

American Indian Sovereignty And Naturalization: It's A Race Thing, John Rockwell Snowden, Wayne Tyndall, David Smith

Nebraska Law Review

I. A Sketch of Naturalization in the United States ... A. The Historical Background of Naturalization in the United States ... 1. English Roots: The Theory of Natural Allegiance ... 2. The Colonial Experience: The Theory of Volitional Allegiance Emerges ... 3. Defining the Qualifications for Naturalization after Independence ... B. Current Naturalization Criteria ... C. Values and Justifications of the Naturalization Process ... 1. The Concepts of Ascription and Consent ... 2. Normative Justifications of the Naturalization Process

II. Indigenous Naturalization ... A. Tribal Sovereignty and "Membership Selection": Blood Quantum as Fiction Among the Sovereign Umoⁿho^{n …}

American "Road Rage": A Scary And Tangled Cultural-Legal Pastiche, Robert F. Blomquist

Nebraska Law Review

I. Introduction

II. Popular Media Accounts ... A. Early Stories: 1988–1995 … B. Later Stories: 1996–2000 ... 1. 1996 … 2. 1997 … 3. 1998 … 4. 1999 … 5. 2000

III. Legal Media Accounts

IV. Lawyerly Deployment

A. Law Reviews ... 1. 1998 … 2. 1999 … 3. 2000 … B. Legislative Materials ... 1. Congressional Road Rage Hearings: Opening Statements by Committee Members ... 2. Congressional Road Rage Hearings: Key Witness Testimony ... C. Judicial Opinions ... 1. 1997 … 2. 1998 … 3. 1999 … 4. 2000

V. Conclusion

What Is Congress Supposed To Promote?: Defining "Progress" In Article I, Section 8, Clause 8 Of The United States Constitution, Or Introducing The Progress Clause, Malla Pollack

Nebraska Law Review

I. Introduction: Why Define "Progress"? … A. The Stakes in Positive Law ... B. The Definitional Hole ... C. How the Suggested Reading Fits the Constitutional Scheme ... 1. Originalism ... 2. An Evolving Constitution

II. Starting Points and Assumptions for Textual Analysis

III. Drafting and Ratification

IV. Testing Definitions in Contest

V. Linguistic Evidence ... A. Dictionaries ... B. The Pennsylvania Gazette … C. Idea of Progress Literature

VI. Conclusion

Faithful To The Constitution: The Roadblock For Nebraska's Schools, Richard E. Shugrue

Nebraska Law Review

For six decades, American schools have been the major battleground in the controversy surrounding the doctrine of separation of church and state.There are huge problems and tensions among the warring parties in religion-school cases, and resort to state constitutional law will not make them disappear. The determined federal judiciary chooses to snub history, tradition, and settled state law to inject its version of civic religion back into the schools. Courts ought to undertake careful examination of the history, language, and experience before embracing a one-size-fits-all rule. For more than a century, states such as Nebraska have fought the battle over …

On First Looking Into General Principles Of Torts: Ruminations On Restating For An Ex-Dean, Marshall S. Shapo

Nebraska Law Review

A tribute to University of Nebraska College of Law Dean Harvey Perlman with comments on the 1999 Discussion Draft for the restatement project of the General Principles of Torts.

I. General Issues ... A. Overall Architecture ... B. Diversity of Opinion on Rationales ... C. Approaches to Restatement

II. Specific Issues ... A. The Definition of Negligence ... B. Contributory Fault ... C. Strict Liability and Negligence ... D. Judge and Jury ... E. The "Core of Tort Law": What to Include

III. Conclusion

Writing Throughout The Curriculum: Why Law Schools Need It And How To Achieve It, Carol Mccrehan Parker

Nebraska Law Review

I. Introduction

II. Writing as a Tool for Analyzing and Applying Legal Authorities ... A. Using Writing to Diagnose Thinking Problems ... B. Using Writing to Promote Clear Thinking ... C. Using Writing-to-Learn Activities to Complement Traditional Teaching Methods

III. Writing Skills as “Tools of the Trade” ... A. Acquainting Students with Functions and Forms of Professional Documents ... 1. Introducing Purposes and Audiences for Legal Writing ... 2. Providing Models of Effective Legal Writing ... B. Teaching Students to Produce Professional-Quality Documents

IV. Writing as a Tool for Constructing Meaning ... A. Using Writing to Examine the Process of …