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Covid-19 Control: Disrupting Doctor-Patient Relationships, Roy G. Spece Jr.

Nebraska Law Review

The full-armamentarium of public health countermeasures came into play when COVID-19 emerged; a few examples are quarantine, closures, and social distancing. These countermeasures are intended to protect population health but trench on many important rights protected by ethical precepts and tort, constitutional, or other law. The measures studied here, orders to delay “elective” medical procedures to preserve resources, have been virtually ignored. Yet, they are uniquely broad, risky, and disruptive of doctor-patient relationships. Delay also can be shoddily promulgated or implemented, thus creating tort liability. Although medicine (speaking for the few) and public health (speaking for the many) traditionally have …

Lethal Autonomous Robots: Are They Legal Under International Human Rights And Humanitarian Law?, Titus Hattan

Nebraska Law Review

I. The Rise of Lethal Autonomous Robots

II. Applicable International Humanitarian Law

III. Applicable International Human Rights Law

IV. LARs in Light of IHL and IHRL

V. Conclusion

A Lay Word For A Legal Term: How The Popular Definition Of Charity Has Muddled The Perception Of The Charitable Deduction, Paul Valentine

Nebraska Law Review

In the United States there is a deeply held conviction “that taxpayers who donate to charity should generally not be subject to the same income tax liability as similarly situated taxpayers.” This innate sense about the Internal Revenue Code’s § 170, otherwise known as the charitable deduction, resonates with Americans’ sense of fairness and creates strong barriers to curtailing its function.

This same sense of fairness is tied to the perceived effects of the charitable deduction. Yet, how “charitable” is the charitable deduction, and how charitable do we expect it to be? This Article argues that the discrepancy between the …

The Erosion Of Nebraska’S Free Exercise Protection: In Re Interest Of Anaya (Anaya Ii), 276 Neb. 825, 758 N.W.2d 10 (2008), Sara Lunsford Kohen

Nebraska Law Review

After the Nebraska Supreme Court’s holding in In re Interest of Anaya (“Anaya II”) in December of 2008, an individual whose religious liberty is burdened by a neutral, generally applicable law has no recourse under the Nebraska Constitution, no matter how extreme the burden is.

The plaintiffs in Anaya II challenged the state’s newborn screening statutes under the free exercise provision of article I, section four of the Nebraska Constitution (hereinafter “Section Four”), claiming that drawing blood from their infant under the newborn screening statutes violated their sincerely held religious beliefs. In so arguing, they cited Palmer v. …

School Regulation Of Exotic Body Piercing, Karen A. Haase

Nebraska Law Review

I. Introduction

II. Body Piercing: The Latest Craze (and You Thought Pet Rocks Were Weird)

III. First Amendment Protection of Body Piercing (or How Can You Exercise Free Speech with That Thing in Your Mouth?) … A. Student First Amendment Rights … B. Body Piercings as “Speech”

IV. Fourteenth Amendment Protection of Body Piercing (or How Can You Even Mention “Rational” and “Body Piercing” in the Same Breath?)

V. Crafting a Constitutionally Acceptable Regulation … A. Health and Hygiene … B. Disruption … C. Discipline

VI. Conclusion

Stretching The Limits Of The Ada: Asymptomatic Hiv-Positive Status As A Disability In Bragdon V. Abbott, 118 S. Ct. 2196 (1998), Teresa A. Schneider

Nebraska Law Review

This Note points out problems with the Bragdon v. Abbott Supreme Court decision and ultimately argues that an asymptomatic HIV-positive person is not disabled under the first definition of disability contained in the Americans with Disabilities Act (ADA); that is, “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” An asymptomatic HIV-positive individual is not disabled within that definition because, even though he or she suffers from a physical impairment, the impairment does not substantially limit any major life activity. Although this Note rejects the argument that reproduction is a …

An Uneasier Case For Copyright Than For Patent Protection Of Computer Programs, A. Samuel Oddi

Nebraska Law Review

I. Introduction

II. The Economic Case ... A. Benefits and Costs of Patent and Copyright Systems ... B. Induced- and Noninduced-Inventions/Works of Authorship ... C. Excessive Inducement ... D. Patent/Copyright Interface ... E. Summary

III. The General Case ... A. Anti-Patent Sentiment ... B. Laws of Nature and Definition of Process ... 1. Basic Issues ... 2. Infringement by Thinking: "Mechanomorphic" View of the Brain ... 3. Perceived Models of the Patent System ... 4. The Service Economy: Methods of Doing Business … C. Algorithms as Liberal Arts ... D. Post Hoc Ergo Propter Hoc ... E. The Industry Position …

"Testing" The Copyright Clause: Copyright Protection For Educational And Psychological Tests, Emily Campbell

Nebraska Law Review

I. Introduction

II. How Educational and Psychological Tests Are Constructed ... A. Overview ... B. Selection of Test Objectives ... C. Selection of Items ... D. Selection of Item Response Style ... E. Deciding Whether the Items Written Are "Good" ... F. Standardization of the Test ... G. Reliability and Validity ... H. Conclusions

III. The Basis for Granting Copyright Protection to Educational and Psychological Tests ... A. Tests as Writings ... B. Tests as Original Works of Authorship

IV. Infringement and the Scope of Copyright Protection ... A. Tests as Factual Works ... B. Tests as Discoveries ... C. …

Drug Manufacturers' Recommendations And The Common Knowledge Rule To Establish Medical Malpractice, Vicki E. Lawrence

Nebraska Law Review

I. Introduction

II. The Importance of the Drug Manufacturers' Recommendation

III. The Package Insert and the Hearsay Rule

IV. Use of the Package Insert to Establish the Standard of Care

V. Arguments Pro and Con

VI. Conclusion

Why Not Beyond A Reasonable Doubt? Santosky V. Kramer, 102 S. Ct. 1388 (1982), Patricia J. Falk

Nebraska Law Review

In the past two decades, the area of family law has become increasingly infused with federal constitutional principles. Prior to this period, two factors—the fact that "family rights" are not explicitly mentioned in the Constitution and the tenth amendment's residuary power clause—combined to leave the area of family law under the exclusive jurisdiction of the states, with constitutional protections thought to be inappropriate if not inapplicable. Today, the clear trend has been in the direction of an increasing recognition and protection of family rights under the Constitution. This protection has taken two distinct but at times related forms: equal protection …

Scientific Evidence: The Nebraska Game And Parks Commission Explores New Blood And Tissue Identification Techniques For Game Law Enforcement, John W. Pharris

Nebraska Law Review

I. Introduction

II. Historical Background of Scientific Principles and Mechanical Processes … A. Immunodiffusion … B. Immunoelectrophoresis

III. Standards for the Admissibility of Scientific Evidence … A. General Propositions of Science … B. Specific Propositions Obtained by Scientific Techniques … C. Laying a Proper Foundation

IV. Conclusion

Financial Inability To Obtain An Adequate Defense, Taylor Mattis

Nebraska Law Review

I. Introduction

II. The Broad Criteria … A. The Criminal Justice Act of 1964 … B. American Bar Association Project on Minimum Standards for Criminal Justice. Standards Relating to Providing Defense Services … C. Uniform Defense of Needy Persons Act (Model) 1966

III. Indigency … A. Strictly Construed … B. Liberally Construed … C. Indigency Rejected

IV. Are Guidelines Necessary?

V. Specific Factors to Be Considered … A. Crime Charged and Usual Fees in Locality … B. Income, Cash, and Dependents … C. Real and Personal Property … D. Resources of Accused’s Friends or Family … E. Bail … F. …

An Academic Lawyer Plays Armchair Analyst: Some Speculations On The Relevance Of Psychoanalysis To The Law, Leonard V. Kaplan

Nebraska Law Review

The purpose of this paper is to briefly analyze two levels of potential and actual interrelationship between psychoanalytic insights and legal working. The first is psychoanalysis as a total philosophy of man, descriptive of man and all his institutions including legal ones; the second is psychoanalysis as a tool for the law where legal institutions seek for value reasons to intervene in a particular situation where the psychology of an individual(s) is at issue. The latter use of psychological theorems and methods covers the legal spectrum from cases of "undue influence" in wills to questions of "mens rea" in criminal, …

Mr. Justice Black, Chief Justice Marshall, And The Commerce Clause, Paul Tillett

Nebraska Law Review

Throughout his twenty-six years on the United States Supreme Court, Mr. Justice Black has shown himself to be an able advocate of Chief Justice Marshall's interpretation of the critical clause which empowers Congress to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The commerce clause does not explain what power over commerce, if any, is left to the states. Since Chief Justice Marshall's first attempt to clarify this relationship in Gibbons v. Ogden, the Court has adopted a series of constitutional doctrines, none of which can be regarded as having finally resolved …

The Fourth Amendment And Evidence Obtained By A Government Agent's Trespass, Charles H. Rogers

Nebraska Law Review

The fourth amendment to the United States Constitution states that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The United States Supreme Court has held that in order to protect this right, evidence obtained by an unreasonable search and seizure conducted by agents of any governmental body in the United States may be suppressed in any criminal proceeding by a defendant whose rights were invaded by the search. In each case the crucial issue becomes one of defining and determining what constitutes an unreasonable …

Workmen's Compensation: Half Century Of Judicial Developments, Samuel B. Horovitz

Nebraska Law Review

I. Changes in Legal Concepts

II. Growth

III. Personal Injury by Accident Arising Out of and in the Course of the Employment … A. Personal Injury … (1) Property Damage … (2) Disease … (3) Neurosis … (4) Single Event and Wear and Tear … (5) Aggravation of Pre-existing Disease or Defect … B. By Accident … (1) Definitions … (2) Assault by Design … (3) Unexpected Result versus Unexpected Cause … (C) Arising Out of … (1) Definitions … (2) Street Risks … (3) Acts of God, Positional and Local Risks … (4) Work-assaults and Aggressors … (5) Horseplay …

The Lag Between Scientific Discoveries And Legal Procedures, Frederick K. Beutel

Nebraska Law Review

It is a generally recognized fact that law and legal procedures lag far behind any type of social change. This is true even in matters of change in social custom, religion, and habits of the people. But it seems to be far more marked when one approaches the problem of picking up scientific developments and transposing them to be used as tools in legal and governmental procedures. The reasons for the failure of the legal system immediately to adopt scientific innovations are numerous. Many of them are found in the nature of the legal system itself. Its ancient origins, written …