Digital Commons Network^™

Powerless Beings: Solitary Confinement Of Humans And Nonhumans In America, Michael B. Mushlin, David N. Cassuto

Nebraska Law Review

Every day, thousands of humans and millions of nonhumans endure solitary confinement. Human prisoners held in this way are confined for twenty-two to twenty-four hours a day for weeks, months, or even years on end in cells the size of a parking space. For these humans, the experience is tortuous. Captive animals held in solitary confinement similarly spend much of their lives locked into tiny spaces, isolated, and deprived of the types of interactions and environment essential to their wellbeing. And, like humans, they are driven mad. In human and nonhuman settings, the agony of solitary is chillingly alike and …

The Federal Government’S Role As The Warden Of Immigrants, Pedro Gerson

Nebraska Law Review

This Essay examines the evolving landscape of immigration enforcement within the broader context of federal confinement in the United States. The current “crisis” at the southern border, characterized by historic levels of migrant influx and shifting political tides toward restrictionism, underscores the federal government’s increasing emphasis on confinement as a tool of migration control. Furthermore, this Essay argues the need to conceptualize federal confinement as a unified system encompassing both immigration detention and incarceration, which reveals the extent to which immigration has become a dominant factor in federal custody. Drawing on data and analysis, it demonstrates that immigration-related offenses now …

Exclusionary Rules And Deterrence After Vega V. Tekoh: The Trend Toward A More Consistent Approach Across The Fourth And Fifth Amendments, Eugene R. Milhizer

Nebraska Law Review

The sound and fury of the U.S. Supreme Court decisions announced in the 2022 term obscured Vega v. Tekoh, in which the Court held that a violation of the Miranda rights warning and waiver requirements does not provide a basis for claiming a denial of rights under 42 U.S.C. § 1983. While Tekoh’s rejection of Miranda protections for § 1983 claims may ultimately prove to be significant, of far greater potential import is the Court’s rationale in support of its holding, which was premised on its assessment of the inadequacy of deterrent benefits that would be obtained by allowing …

Due Process In Solitary Confinement: It’S Time To Overrule Sandin And Revise Wilkinson, Russell E. Lovell Ii

Nebraska Law Review

Sandin and Wilkinson were decided during Chief Justice William Rehnquist's tenure, and the Chief Justice played the lead role in reshaping the Court's solitary confinement caselaw over the past thirty years. It was Chief Justice Rehnquist who fashioned the “atypical, significant hardship” test in Sandin v. Conner and it would have to be exhibit 1 demonstrating the Chief Justice's “indifference to prison terrors,” to borrow Professor Judith Resnik's eloquent phrase. The Hijacking article contended that the Sandin Court totally ignored the facts of the case and time-honored settled precedent that required due process protection prior to imposition of even short-term …

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 …

‘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 …

Comic Literature And Graphic Novel Uses In History, Literature, Math, And Science, James O. Barbre Iii, Justin Carroll, Joshua Tolbert

SANE journal: Sequential Art Narrative in Education

Graphic novels and comics have a rich history and have long served as a medium for both education and entertainment. Although we live in an increasingly technology-rich era which offers abundant visual stimulation to compete with comics, graphic literature is arguably a more immediate and robust resource than ever before. The following paper highlights specific applications of graphic literature to pedagogical purposes, including implications for the use of comics in teaching history, world languages, English as a new language, science, and mathematics. Across these areas, a wide degree of application exists for teachers, in both K-12 and post-secondary settings. In …

In Celebration Of Morrissey V. Brewer At Fifty: A Surprising University Of Nebraska College Of Law Back Story To The Prisoners’ Rights Due Process Landmark, Russell E. Lovell Ii

Nebraska Law Review

The year 2022 will be the fiftieth anniversary of the Supreme Court’s 1972 landmark prisoners’ rights case, Morrissey v. Brewer.1 Morrissey was a Fourteenth Amendment due process challenge involving an Iowan whose parole was revoked without a hearing.2 But long before Mr. Morrissey was in prison, a legislative internship at the University of Nebraska College of Law (Nebraska Law) in 1968 got me involved in researching and drafting the Nebraska Treatment and Corrections Act of 1969, including state parole law. The one area of parole law not reformed by the new legislation was parole revocation, a shortcoming that was the …

The Immorality Of Crimes Involving Moral Turpitude: Evaluating The Eighth Circuit’S Split In Bakor V. Barr, Emma Franklin

Nebraska Law Review

Alex failed to register his car, Pilar failed to renew his broker license, Juan failed to register as a sex offender, and all three noncitizens have been convicted of one previous crime. Each of these registration failures flow from dramatically different legal requirements and serve different purposes, but they share a common characteristic. All three legal missteps are based on administrative registration obligations promulgated by a governmental entity. Indeed, the failure to register as a sex offender may accompany more ethical and moral intimations, but the act of failing to register as a sex offender is not itself clearly evil …

The New Qualified Immunity Quandary, Justin C. Van Orsdol

Nebraska Law Review

With increased media coverage of excessive force cases, we may someday achieve meaningful reform of the qualified immunity doctrine. But with Congress’s inability to accomplish major legislation in the current political climate, it is doubtful that qualified immunity will be reformed, much less abolished, anytime in the near future. Unless—or until—Congress figures out a way to meaningfully reform qualified immunity, we are left with the patchwork of decisions from the federal appellate courts. Qualified immunity cases and scholarship are riddled with wildly varying approaches to what constitutes “clearly established law” and whether courts should return the mandatory sequencing in Saucier …

Precedents Ignored: Erroneous Applications Of Due Process Precedents Lead To Unjust Consequences For Pretrial Detainees And A Lack Of Accountability For Jailers—Whitney V. City Of St. Louis, 887 F.3d 857 (8th Cir. 2018)., Deena Keilany

Nebraska Law Review

Mass incarceration has led to the confinement of 2.3 million individuals in the United States,despite a steady decline in crime rates since the 1990s.An already strained carceral system,now operating against the backdrop of a nation reeling from the global COVID-19 pandemic,has experienced an influx of detainees as demonstrators are periodically arrested for protesting the very institutions that are sending them to jail.As demonstrators are arrested and detained, often for minor offenses, many people who have not been touched by the criminal justice system before are getting a glimpse at detention facility conditions.Mass arrests and the impacts of COVID-19 on the …

Voiding The Federal Analogue Act, Andrew Fels

Nebraska Law Review

"Accordingly, [King Rex] announced to his subjects that he had written out a code and would henceforth be governed by it in deciding cases, but that for an indefinite future the contents of the code would remain an official state secret, known only to him and his scrivener. To Rex’s surprise this sensible plan was deeply resented by his subjects. They declared it was very unpleasant to have one’s case decided by rules when there was no way of knowing what those rules were."--LON L. FULLER, THE MORALITY OF LAW

If the Federal Analogue Act (Analog Act) is to be …

Bringing Order To Chaos: Reviving Uniformity And Balance Within Nebraska’S Rental Housing Laws, Ryan Sullivan

Nebraska Law Review

In 1973, the Nebraska Legislature was presented with the opportunity to adopt the Uniform Residential Landlord & Tenant Act (Uniform Act).1 The Uniform Act sought to “simplify, clarify, modernize, and revise the law governing rental of dwelling units and the rights and obligations of landlords and tenants” as well as improve the quality of housing, and make housing laws more uniform.2 The Unicameral delayed adoption for a year, and in the interim, that thoughtfullycrafted, balanced, and uniform set of proposed laws was eviscerated through one-sided amendments pushed through by landlord and real estate lobby groups (Real Estate Lobby).3 The final …

The Hijacking: The Remnants Of Morrissey-Wolff Due Process In Solitary Confinement After Sandin V. Conner, Russell E. Lovell Ii

Nebraska Law Review

Fifty years ago, in 1972, the United States Supreme Court, in an opinion by its new Chief Justice Warren Burger, issued a landmark prisoners’ rights decision in Morrissey v. Brewer.1 It involved the constitutionality of a parole board’s revocation of paroles without a hearing, an issue that I had considerable involvement in during my law Legal Services Organization (LSO) of Indianapolis—including coauthoring an amicus curiae brief on behalf of Morrissey while the case was pending before the Supreme Court. The fiftieth anniversary of the Morrissey decision has provided the occasion to write a retrospective on the historic decision and …

The Incriminating Sound Of Silence: A Need For Protection Of Post-Arrest, Pre-Miranda Silence, Emily Locke

Nebraska Law Review

I. Introduction

II. Historical Origins of the Right to Remain Silent

III. Silence Prior to Miranda Warnings ... A. Pre-Arrest Silence as Substantive Evidence of Guilt ... B. Post-Arrest, Pre-Miranda Silence for Impeachment Purposes

IV. Circuit Court Split: Post-Arrest, Pre-Miranda Silence as Evidence of Guilt ... A. Circuit Courts Allowing Use of Post-Arrest, Pre-Miranda Silence as Evidence of Guilt ... B. Circuit Courts Prohibiting Use of Post-Arrest, Pre-Miranda Silence as Evidence of Guilt

V. Analysis ... A. Miranda as a Mere Reminder ... B. Silence as Compulsion ... C. Policy Justifications for Prohibiting Post-Arrest, Pre-Miranda …

Adr Is Not A Household Term: Considering The Ethical And Practical Consequences Of The Public’S Lack Of Understanding Of Mediation And Arbitration, Kristen M. Blankley, Ashley Votruba, Logen M. Bartz, Lisa M. Pytlikzillig

Nebraska Law Review

The field of alternative dispute resolution (ADR) experienced its “Big Bang” moment in 1906 when Roscoe Pound, then University of Nebraska College of Law Dean, delivered his famous address, “The Causes of Popular Dissatisfaction with the Administration of Justice.” On the seventieth anniversary of the address, Chief Justice Warren E. Burger convened a conference, now known as the “Pound Conference,” to revisit those ideas in the 1906 address and discuss ways to promote greater satisfaction with the judiciary and conflict resolution.Harvard Law Professor Frank Sander delivered the keynote address, outlining the possibility of a “multi-door courthouse” in which litigants could …

Cracking Self-Defense’S Intractable “Difficult Cases”, T. Markus Funk Ph.D.

Nebraska Law Review

The “ancient right” of self-defense is among the handful of criminal law areas that has received substantial academic (and increasingly public) attention, and deservedly so, given the foundational role it plays in criminal justice systems the world over. The current debate about over-policing, violence, and self-defense has vividly brought to the forefront the challenges inherent in setting boundaries between the state’s claimed “monopoly on force” and the individual’s right to deploy self-preferential violence against an attacker. But, as this Article points out, by continuing to overlook the role values and value judgments play in guiding “just” self-defense outcomes, the bedrock …

Execution On The Ballot: Lessons For Judicial Review Of Ballot Measures From The Death Penalty Referendum In Nebraska, Kait Madsen

Nebraska Law Review

I. Introduction

II. Background ... A. Current Climate: Increased Voter-Led Ballot Measures ... 1. Recent Trend Toward Policy Creation Through Voter-Led Ballot Measures ... 2. Reasons for the Trend: Americans’ Heightened Distrust of Government and the Political Process ... 3. Voter-Led Ballot Measures Are Often Challenged in State Courts, Making Courts an Important Player in the Ballot Measure Process ... B. Judicial Review of Ballot Measures: Three Perspectives ... 1. Perspective One: Ballot Measure Policies Reflect the Will of the People, and Courts Should Therefore Be Highly Deferential to Voters’ Choice ... 2. Perspective Two: The Non-Legislative Origin of Ballot …

“I Did It, But . . . I Didn’T”: When Rejected Affirmative Defenses Produce Wrongful Convictions, James R. Acker, Sishi Wu

Nebraska Law Review

I. Introduction

II. Wrongful Convictions and Failed Affirmative Defenses

III. When Rejected Affirmative Defenses Produce Wrongful Convictions: Case Studies ... A. Exonerations in the Wake of Rejected Justification Defenses ... B. Exonerations in the Wake of Rejected Excuse Defenses

IV. What Went Wrong? Sources of Error in Failed Affirmative Defense Exoneration Cases ... A. Failed Self-Defense ... B. Failed Excuse Defenses

V. Compensation for Wrongful Conviction and Incarceration

VI. Conclusion

Beyond Unreasonable, John Inazu

Nebraska Law Review

The concept of “reasonableness” permeates the law: the “reasonable person” determines the outcome of torts and contracts disputes, the criminal burden of proof requires factfinders to reach conclusions “beyond a reasonable doubt,” and claims of self-defense succeed or fail on reasonableness determinations. But as any first-year law student can attest, the line between reasonable and unreasonable is not always clear. Nor is that the only ambiguity. In the realm of the unreasonable, many of us intuit that some actions are not only unreasonable but beyond the pale—we might say they are beyond unreasonable. Playing football, summiting Nanga Parbat, and attempting …

Removing Miranda From School Interrogations, Martin R. Gardner

Nebraska Law Review

I. Introduction

II. Miranda and Its Progeny ... A. Pre-Miranda Coerced Confession Doctrine ... B. Miranda v. Arizona ... C. “Custodial Interrogation”

III. Miranda and Juvenile Interrogation ... A. Supreme Court Cases ... 1. J.D.B. v. North Carolina ... 2. Fare v. Michael C. ... B. Lower Court Cases ... 1. Interrogations Solely by School Officials ... 2. SRO Involvement in Interrogations by School Officials ... a. Miranda Warnings Required ... b. Miranda Warnings Not Required ... c. Critique of the Agency Approach ... 3. Interrogations Dominated by SROs with School Officials Present ... 4. Police Dominated Interrogations

IV. …

Nebraska Nonsense: Trojan Horse Or Cash Crop?, Jared West

Nebraska Law Review

When I was a young boy, my father reminisced about driving through the Nebraska countryside in the 1970s. He told me about the vast fields of green he saw, only, they were not fields of corn. Yes, Nebraska has a long history with hemp. In fact, local hemp even earned its own nickname: “Nebraska Non-sense.”1 Despite this unique history, it has been illegal to grow hemp in Nebraska for almost a century— until recently. In 2019, responding to the recent trend of hemp legalization in the U.S., Nebraska lawmakers weighed the question of whether Nebraskans should be allowed to grow …

Bahtuoh V. Smith, 855 F.3d 868 (8th Cir. 2017): Promising A Bleak Future For Ineffective Assistance Of Counsel Claims In The Eighth Circuit, Mary R. Marcum

Nebraska Law Review

I. Introduction

II. Background … A. The Strickland Standard ... B. The AEDPA Standard ... C. The First Circuit’s Application of Strickland and AEDPA: Ouber v. Guarino

III. Main Case: The Bahtuoh Trilogy ... A. Bahtuoh I ... B. Bahtuoh II ... C. Bahtuoh III

IV. Analysis ... A. Application of Strickland: The First Prong ... B. Application of Strickland: The Second Prong ... C. The Future of Ineffective Assistance of Counsel Claims in the Eighth Circuit

V. Conclusion

Unreported Sexual Assault, Saul Levmore, Martha C. Nussbaum

Nebraska Law Review

I. Introduction

II. Rewarding Potential Accusers: A Proposed Means of Reducing Sexual Assaults on Campus

III. Implementing a Reward System

IV. Dealing with Objections to the Plan

V. False Claims and Protection for the Accused

VI. Conclusion

I. Introduction
Unreported criminal behavior is troubling for a variety of reasons, including the likelihood that it reduces the law’s ability to deter wrongdoing. This is especially unfortunate in the case of sexual assault and other wrongs where the wrongdoers are often repeat offenders who will harm others until apprehended. In many cases, these assaults take place over many years so it is …

Restorative Justice And Youth Offenders In Nebraska, Kristen M. Blankley, Alisha Caldwell Jimenez

Nebraska Law Review

I. Introduction to Restorative Processes ... A. Underlying Purposes of Restorative Justice ... 1. Focus on Accountability ... 2. Victim-Centered ... 3. Reintegration into the Fabric of Society ... B. Types of Restorative Justice Processes ... 1. Sentencing Circles or Peacemaking Circles ... 2. Victim-Offender Mediation ... 3. Victim-Offender Conferencing or Dialogue ... 4. Family Group Conferencing ... 5. Problem-Solving Courts ... 6. Truth Commissions ... C. Established Success of Restorative Justice Practices ... D. Authority to Engage in Restorative Justice Processes

II. History of Restorative Practices in Nebraska ... A. Family Group Conferencing ... B. Victim-Offender Mediation ... C. …

Sexual Predator Laws: Clarifying The Relationship Between Mental Health Laws And Due Process Protections, Maureen F. Larsen, Robert F. Schopp

Nebraska Law Review

I. Introduction

II. The Justification for SVP Legislation ... A. Police Power and Parens Patriae ... B. The Constitutionality of Civil Confinement

III. A Lack of Measurable Standards Make SVP Statutes Unworkable ... A. The Court’s Vague Mental Illness Standard ... B. The Danger of Predicting Dangerousness

IV. Clarifying the Nature of SVP Statutes ... A. Maintaining Sex Offender Culpability ... B. The Exclusion of Juveniles from SVP Commitment

V. The Utilization of Mental Health Laws for Preventive Incarceration

VI. Strict Mandatory Minimums and Recidivist Laws as Alternatives to SVP Commitment

VII. Conclusion

When Tribal Disenrollment Becomes Cruel And Unusual, Judith M. Stinson

Nebraska Law Review

I. Introduction

II. The Eighth Amendment’s Prohibition on Cruel and Unusual Punishment

III. The Prohibition on Cruel and Unusual Punishment Applies to Tribes via the Indian Civil Rights Act

IV. Tribal Punishment ... A. Historical Methods of Addressing Criminal Conduct ... B. Modern Methods of Addressing Criminal Conduct … 1. Adoption of Western Notions of Criminal Punishment ... 2. The Trend to Disenroll for Conduct

V. Tribal Disenrollment is Equivalent to Revocation of Citizenship

VI. Conclusion

Karasek V. Regents Of The University Of California, No. 15-Cv-03717-Who, 2015 Wl 8527338 (N.D. Cal. Dec. 11, 2015): The Victimization Of Title Ix, Chelsea Avent

Nebraska Law Review

I. Introduction

II. Understanding Title IX in the Context of Sexual Assault ... A. How Davis v. Monroe County Board of Education Advanced Title IX ... B. The Deliberate Indifference Standard Under Title IX and How Courts Are Inconsistently Applying What Is Required as “Further Harassment”

III. Karasek v. Regents of the University of California ... A. Karasek ... B. Commins ... C. Butler

IV. The Northern District of California Correctly Interpreted the Further Harassment Requirement of Title IX Cases

V. The Dear Colleague Letter as an Appropriate Future Requirement

VI. Conclusion

Newbs Lose, Experts Win: Video Games In The Supreme Court, Angela J. Campbell

Nebraska Law Review

I. Introduction

II. The Advantage of a Supreme Court Expert ... A. California’s Counsel ... B. Entertainment Merchant Association’s (EMA) Counsel

III. Background on the Video Game Cases ... A. Cases Prior to Brown v. Entertainment Merchants Ass’n ... B. Brown v. Entertainment Merchants Ass’n ... 1. Before the District Court ... 2. Before the Ninth Circuit ... 3. Supreme Court

IV. Comparison of Expert and Non-Expert Representation in Brown ... A. Merits Briefs ... 1. Statement of Facts ... a. California’s Statement of Facts ... b. EMA’s Statement of Facts ... c. A More Effective Statement of Facts ... …

The Modern Penny Dreadful: Public Prosecution And The Need For Litigation Privacy In A Digital Age, Jennifer A. Brobst

Nebraska Law Review

I. Introduction

II. Cybercrime and the Social Impact of Loss of Privacy

III. Balancing Constitutional Rights of Transparency with the Need for Anonymity in the Courtroom … A. Anonymous Juries ... B. Jane Doe Motions and Disclosure of Litigant and Witness Identities

IV. Limitations on the Right of Public Access to Court Proceedings ... A. Bans on Recording Devices in Court ... B. Closing the Courtroom

V. Public Records and Privacy-Related Exemptions

VI. Not So Private Rights of Action ... A. Statutory Remedies ... B. Defamation ... C. Invasion of Privacy ... D. Employee Harassment

VII. Conclusion