Social and Behavioral Sciences Commons^™

Preemption By Stealth, Sandi Zellmer

Nebraska College of Law: Faculty Publications

One can hardly dispute that preemption issues are complex and highly nuanced, involving both federalism and separation of powers---congressional prerogatives, agency competence, and judicial deference--as well as efficiency, equity, victim compensation, and cost-shifting objectives. By focusing specifically on cases involving statutory savings clauses, this Article makes a modest attempt to identify preemption patterns and principles from a discrete set of opinions issued by the Rehnquist and Roberts Courts through 2008. It undertakes a comparative analysis of case law in four areas: (1) the environment; (2) labor and employment; (3) products liability; and (4) agricultural practices. These four were chosen both …

Umpires, Not Activists: The Recent Jurisprudence Of The Nebraska Supreme Court, Richard F. Duncan

Nebraska College of Law: Faculty Publications

Nebraska is the “Big Red” state, both in football and in politics. The people of Nebraska are conservative and they wish to rule themselves, either directly through the retained powers of initiative and referendum, or indirectly through the process of self-government and laws enacted by their democratically-elected representatives. Government by the judiciary is simply not the way we do things in Nebraska.

The people of Nebraska are fortunate to have a state Supreme Court so much in tune with the will of the people. As this Report has shown, recent decisions of the Nebraska Supreme Court demonstrate that the court, …

A Decade Of Change In Sixth Amendment Confrontation Doctrine, Roger Kirst

Nebraska College of Law: Faculty Publications

The United States Supreme Court brought new prominence to Sixth Amendment confrontation doctrine in 2004 when it announced its testimonial interpretation in Crawford v. Washington. This essay describes how confrontation doctrine was changed in the last decade by Crawford and the Court’s subsequent decisions in Davis v. Washington and Giles v. California. It examines what the disagreements among the five opinions in Giles suggest about whether the Court will continue to rely so strongly on historical hearsay doctrine to interpret the Confrontation Clause. It discusses other confrontation issues the Supreme Court will face in future cases.

United States: The Emergence Of Environmental Considerations, Sandra Zellmer

Nebraska College of Law: Faculty Publications

This essay traces the emergence of environmental considerations in U.S. water law, beginning with colonial America and proceeding through the Gilded Age of industrialization, the Progressive Era of wise use, the New Deal and the rise of the federal administrative state, and the modern environmental era. Early on, environmental challenges were addressed haphazardly. The federal government influenced water policy through navigational enhancements, reclamation works, and flood control, while state and local law governed water rights and public health issues. The 1970s brought uniform federal effluent limitations and protections for endangered species. The dawn of the twenty-first century increasingly sees collaborative …

Lethal Injection And The Problem Of Constitutional Remedies, Eric Berger

Nebraska College of Law: Faculty Publications

I. An Overview of Lethal Injection............................................................... 263
A. The Three-Drug Protocol.............................................................................. 263
B. The Supreme Court’s Fractured Decision in Baze v. Rees ............................273
II. Remedial Anxieties and Lethal Injection ................................................ 280
A. How Remedy Constrains the Right............................................................... 280
1. Remedial Concerns in Baze................................................................. 283
2. Remedial Concerns in Other Lethal Injection Cases ......................... 286
3. Concerns About Delay......................................................................... 293
B. The Structural Injunction’s Shadow over Lethal Injection........................... 296
III. Political Process Failures and the Need for Judicial Intervention.....................................................................................................301
IV. The Modesty of Lethal Injection Remedies..............................................314
A. Remedial Options .......................................................................................... 315

Thoughts On Lb 36: Problems With The Proposed Bill To Institute Lethal Injection In Nebraska, Eric Berger

Nebraska College of Law: Faculty Publications

In February 2008, the Nebraska Supreme Court held in State v. Mata that Nebraska’s electrocution procedure violated the Nebraska constitution’s prohibition against cruel and unusual punishment. Mata left Nebraska in the curious position of having the death penalty on the books without a constitutional method of executing death sentences. In December 2008, Nebraska Attorney General Jon Bruning submitted a report to the Governor recommending that Nebraska adopt lethal injection as a new means to carry out a sentence of death. General Bruning’s report included LB 36, a proposed statute that would institute lethal injection in Nebraska.

On January 29, 2009, …

Empirical Research On Consumer Arbitration: What The Data Reveals, Sarah R. Cole, Kristen M. Blankley

Nebraska College of Law: Faculty Publications

In 2007, Public Citizen, a “national, non-profit public interest organization,” issued a report entitled “The Arbitration Trap: How Credit Card Companies Ensnare Consumers,” concluding that the arbitration process routinely exploits consumers. Public Citizen drew this sweeping conclusion after analyzing approximately 34,000 points of data the National Arbitration Foundation (“NAF”) collected about its California arbitrations.

Unfortunately, Public Citizen’s analysis of the NAF data does not support its conclusions primarily because its conclusions cannot be extended beyond the set of cases the data contains, i.e., collection cases filed by creditors, including credit card companies, against consumers with outstanding balances on their accounts. …