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Manufacturers' Liability For Design Defects: Melia V. Ford Motor Co., 534 F.2d 795 (8th Cir. 1976), Terry R. Wittler

Nebraska Law Review

In Melia v. Ford Motor Co., the Court. of Appeals for the Eighth Circuit was called upon for the third time in less than one year to interpret and apply the Nebraska version of strict liability in tort as it relates to alleged design defects. The difficulty of its task was magnified by the fact that the Nebraska Supreme Court has not allowed recovery under strict liability principles in any appeal it has heard since its initial endorsement of section 402A of the Second Restatement of Torts, in Kohler v. Ford Motor Co. This Note demonstrates that the majority …

Libel And The First Amendment: Time, Inc. V. Firestone, 424 U.S. 448 (1976), Richard J. Butler

Nebraska Law Review

I. Introduction

II. History

III. The Issues … A. Public Figure … 1. Prominence or Participation in Controversy … 2. Selective Application of Gertz … 3. What Community? … 4. Divorce Proceedings … 5. Public Figure Rationale … B. Reports of Judicial Proceedings .. C. Actual Injury … D. Fault

IV. Conclusion

Rule 10b-5: Scienter Displaces The Flexible Duty Standard: Ernst & Ernst V. Hochfelder, 425 U.S. 185 (1976), Larry V. Albers

Nebraska Law Review

Judicial creation of a private cause of action under rule l0b-5, which was promulgated pursuant to section 10(b)3 of the Securities Exchange Act of 1934, gave rise to a number of perplexing issues. One of the most formidable was whether proof of scienter was a necessary element for recovery. Lacking congressional direction, courts were free to fashion the state of mind standard flexibly, by pursuing what is recognized as the broad policy of section 10(b)—the prevention of fraud on the public by persons connected with the purchase or sale of securities. Predictably, the standards adopted within the United States courts …

Expansion Of The Reservation Of Water Rights Doctrine: Cappaert V. United States, 426 U.S. 128 (1976), James Spitzenberger

Nebraska Law Review

Cappaert v. United States is the latest in a long line of cases dealing with the implied reservation of water rights doctrine. This doctrine, also known as the Winters doctrine because it originated in Winters v. United States, says that when the United States government reserves land, it also reserves enough water to accomplish its purposes. In substance, the doctrine means that when water is needed to accomplish the purpose of a reservation, the federal government can take without compensation whatever amount of unappropriated water existed on the date the reservation was established. Cappaert involved an attempt by the …

New Restrictions On Tax Shelter Limited Partnerships, Thomas N. Lawson

Nebraska Law Review

The Tax Reform Act of 1976 is the culmination of more than two years of work by both houses of Congress. The Act is the most extensive tax reform effort since the enactment of the 1954 Code. The changes made by the Act to the partnership provisions in subchapter K are the first substantive changes in this area since the subchapter's enactment as a part of the 1954 Code. It is clear from the Act and the accompanying committee reports that the changes to Subchapter K were motivated by the wide use of tax shelter limited partnerships, which led Congress …

Whatever's Fair—Adequacy, Equity, And The Underwriting Prerogative In Property Insurance Markets, Robert Works

Nebraska Law Review

I. Introduction

II. Availability Problems: A Preliminary Excursus … A. Price Controls … B. Selectivity and the Pragmatic Science … 1. The Limits of Classification … 2. Capacity: The Need for Spread … 3. Moral Hazard … 4. Implementing Selectivity: The "Organizational Filter" … C. Selectivity and Individual Perceptions

III. The Programs: Antecedants, Implementation, and Administration … A. Underwriting Discretion and the Instinct toward Voluntarism … 1. Intermediate Mechanisms and the Traditions of Voluntarism … 2. Riots, Responsibility, and the Role of Industry … B. "Creative Federalism" Insurance Style … C. Who Governs: Authority, Accountability, and Control … 1. The …

Federal Income Taxation And Real Estate Development: Death Knell For Shell Corporations?, Robert L. Nefsky

Nebraska Law Review

The term "shell corporation" typically refers to a corporation that is used only for a limited purpose, and which hopefully will not be recognized or respected for other purposes such as taxation. Historically, shell corporations have been used (1) to circumvent usury laws when adequate financing is not available at an interest rate permitted to individuals, (2) to facilitate estate planning, (3) to keep property out of the reach of creditors of its beneficial owners, (4) to satisfy certain state and local laws that require publicly financed projects to be held by corporations, (5) to avoid personal liability during liability-prone …

Nebraska Standards On Search And Seizure, Jill Beckoff Nagy

Nebraska Law Review

I. Introduction

II. The Federal Underpinnings

III. The Nebraska View

IV. The Law in Nebraska … A. Search Warrants … 1. The Sufficiency of Affidavit … 2. The Extent of a Warrant’s Authorization … B. Warrantless Searches … 1. Searches Incident to Arrest … 2. Consent Searches … 3. Emergencies and Other Special Cases … C. “The Criminal Is to Go Free Because the Constable Has Blundered?” … 1. Standing … 2. Waiver, Timing, and State Action … 3. “Harmless Error”

[V]. Conclusion

Once You're In: Maintaining Competence In The Bar, Terry R. Wittler

Nebraska Law Review

Various mechanisms designed to ensure the continuing professional competence of the bar, are being considered, discussed, and adopted in the several states. These mechanisms involve five distinct, though often interrelated programs: (1) periodic reexamination, (2) mandatory continuing legal education, (3) specialization, (4) certification; and (5) peer review. This Commentary reviews these various programs and analyzes how each relates to the following goals: (1) to provide the public with better educated and more competent counsel, (2) to facilitate the selection of qualified counsel by clients with specific legal programs, (3) to decrease the cost and improve the efficiency of the legal …

Nebraska Well-Interference Problems—A Proposal, Paul D. Hietbrink

Nebraska Law Review

Use of Nebraska's ground water resources is multiplying at an ever-increasing pace. One of the most immediate results of the increase in the number of wells and the amount of withdrawals has been interference between the wells of adjoining users. This article delineates the scope of the problem, explains why current Nebraska law is ineffectual to resolve it, attempts to make some judgments as to whether and under what circumstances a remedy should be available, and proposes a method by which to implement whatever remedies are deemed advisable. No matter what the resolution is of broad-scale ground water management, a …

The Disqualification Dilemma: Dr 5-105(D) Of The Code Of Professional Responsibility, Marlene Miller Haskell

Nebraska Law Review

A controversy is brewing between the American Bar Association Committee on Ethics and Professional Responsibility and the Legal Ethics Committee of the District of Columbia Bar Association over the proper interpretation to be given to the new version of DR 5-105(D) of the Code of Professional Responsibility. The broad language of the amendment has potential application to lawyers all over the country. This article provides a brief background on the disqualification issues involved in DR 5-105(D), examines the two different opinions, and then offers some comments on the debate over the proper interpretation of the new rule.

Sec Intervention In Corporate Rehabilitation, Barry L. Ross

Nebraska Law Review

This comment analyzes the role of the Securities and Exchange Commission (SEC) in corporate rehabilitation under the present Bankruptcy Act and the proposed New Bankruptcy Act. First, a general understanding of the distinction between Chapter X and XI is necessary. Then Section II examines why the SEC prefers a Chapter X bankruptcy proceeding over a Chapter XI bankruptcy proceeding and how that preference is effectuated. Section III gives a historical review of the major cases in which the SEC forced companies to use Chapter X, and attempts to derive a standard which courts will apply when faced with a debtor …

Torts Prior To Conception: A New Theory Of Liability: Renslow V. Mennonite Hospital, 40 Ill. App. 3d 234, 351 N.E.2d 870 (1976); Park V. Chessin, 88 Misc. 2d 222, 387 N.Y.S.2d 204 (Sup. Ct. 1976), Dawn R. Duven

Nebraska Law Review

Historically, an unborn child was deemed to have no inherent rights in the field of torts, although such rights were granted in areas such as property or criminal law when it proved beneficial to the child. Case law relating to tort liability for the benefit of infants, however, has expanded rapidly in recent years. This Note summarizes the law of torts that harm infants, with special focus on an area just beginning to emerge—that of liability for torts committed prior to an infant's conception. It examines two recent cases in the area of preconceptional torts: Renslow v. Mennonite Hospital, …

Prisoners Have No Right To Procedural Due Process In Interinstitution Transfers: Meachumn V. Fano, 427 U.S. 215 (1976), Tim Sindelar

Nebraska Law Review

The past decade marked an evolution in the development and definition of rights retained by individuals after conviction and incarceration. In a cautious, step-by-step approach, a number of Supreme Court cases rejected the traditional "hands-off" attitude toward conflicts between prisoners and prison administrators. These decisions delineated specific constitutional rights that were not to be limited by the mere fact of incarceration. The general precept of these decisions was that incarceration should not deprive one of constitutionally protected rights, when the exercise of such rights could be reconciled with confinement. A corresponding line of cases was dedicated to protecting individuals from …

Extension Of The No Subrogation Against Insured Rule: Stetina V. State Farm Mutual Automobile Ins. Co., 196 Neb. 441, 243 N.W.2d 341 (1976), John A. Selzer

Nebraska Law Review

Subrogation is an important concept in insurance law. There are several reasons why an insurer that has paid for a loss should be allowed to recover from those legally responsible. First, the insured is prevented from recovering twice for the same loss, preserving the principle of indemnity. Second, the insurer is reimbursed for the payment it has made. Third, the tort-feasor, who is legally responsible, is prevented from receiving a windfall by being absolved of liability. "Stated simply, subrogation is a creature of equity having for its purpose the working out of an equitable adjustment between the parties by securing …

Table Of Contents, Vol. 56, No. 4

Nebraska Law Review

No abstract provided.

Land Accretion And Avulsion: The Battle Of Blackbird Bend, Laurie Smith Camp

Nebraska Law Review

In 1854, a United States government treaty established a reservation for the Omaha Indian Tribe. The reservation included a peninsula on the Nebraska side of the Missouri River. As surveyed in 1867, the peninsula consisted of 3,000 acres and constituted only a small percentage of the total land reserved for the tribe north of Decatur, Nebraska. Today, there is no peninsula. The Missouri has pushed west, shortening its long meander line. In 1975, the United States government and the Omaha Indian Tribe filed separate suits against the record title holders of 11,000 acres of land in Monona County, Iowa, which …

Indexes To Volume 56

Nebraska Law Review

No abstract provided.

Federalism, The Tenth Amendment, And The Legal Profession: The Power Of A Federal Judge To Restrain A Convicted Attorney, As A Condition Of Probation, From Practicing In The State Courts, Marc I. Steinberg, John M. Koneck

Nebraska Law Review

This article examines the power of a federal judge, when sentencing an attorney who has been convicted of a federal felony to a term of probation, to order that the attorney refrain from engaging in the practice of law in the state courts. The article’s purpose is to analyze the resulting problems and controversy and to reach a conclusion that is consistent with both the tenth amendment and the concept of federalism.

I. Introduction

II. Social Policy Analysis

III. Constitutional Analysis … A. Displacement of State Authority … B. Tenth Amendment Analysis … C. Federalism Analysis … D. Federal Regulation …

The Securities Act Of Nebraska: An Overview, Larry V. Albers

Nebraska Law Review

I. Introduction

II. “Securities” and “Offer for Sale” under the Act … A. Security … B. Offer or Sale

III. Fraud

IV. Registration of Broker-Dealers, Investment Advisers, and Agents under the Act

V. Securities and Transactions Exempt from Registration … A. Exempt Securities … B. Exempt Transactions

VI. Registration … A. Notification … B. Qualification … C. Coordination

VII. Sanctions and Relief under the Act

VIII. Conclusion

Use Of An Informant's Tip In Establishing Probable Cause: State V. Bernth, 196 Neb. 813, 246 N.W.2d 600 (1976), James Holman

Nebraska Law Review

In State v. Bernth, the requirements for use of an informant's tip in establishing probable cause under the fourth amendment were again considered in Nebraska. Under the fourth amendment, as applied to the states through the fourteenth amendment, a warrant is required to search private property, and a search warrant may be issued only upon a showing of probable cause. In order to understand the significance of the Bernth decision, it is necessary to examine it against the background of the guidelines laid down by the United States Supreme Court on issuance of a search warrant based on an …

The Right To Confrontation: One Step Beyond Bruton: United States V. Rogers, 549 F.2d 490 (8th Cir. 1976), Robert L. Bals

Nebraska Law Review

Despite the simplicity and apparent straightforward language of the confrontation clause in the United States Constitution, its constitutional dimensions are not easily discernible. An aura of conflict and confusion surrounds this doctrine. The impetus for the framers of the Constitution to include the right of confrontation for the protection of criminal defendants purportedly was rooted in defects noted at the trial of Sir Walter Raleigh, but even this has not gone without dispute. It was over 100 years after the adoption of the sixth amendment that the United States Supreme Court was faced with the opportunity to comment on the …

Pain And Suffering Damages: A Move Toward More Precision And Accuracy: Abbott V. Northwestern Bell Telephone Co., 197 Neb. 11, 246 N.W.2d 647 (1976), John W. Pharris

Nebraska Law Review

It has long been held that an award of damages for loss or impairment of future earning capacity should be reduced to its present value. There has, however, been a split of authority as to whether damages for future pain and suffering should also be discounted to present value. In Nebraska, it has been recognized that although there is no mathematical formula for translating pain and suffering into terms of dollars and cents, damages are nonetheless allowable. However, there has been considerable controversy in Nebraska as to whether these damages should be discounted to present value. Originally, cases dealing with …

Kinetics Of The Alkaline Tetramer Dimer Dissociation In Liganded Human Hemoglobin: A Laser Light-Scattering Stopped-Flow Study, D. P. Flamig, L. J. Parkhurst

Department of Chemistry: Faculty Publications

The first-order dissociation of tetrameric HbCO to the dimer has been studied over the pH range 10.30-11.57 in a light-scattering stopped-flow apparatus using argon-ion laser excitation. The first-order dissociation rate constant varies from 0.25 sec^-1 to 24.0 sec^-1 over this pH interval. A semilogarithmic plot of k versus pH has a slope of 2.56 at pH 11.07, the midpoint. The pH dependence of the dissociation of the tetramer is consistent with progressive titration of α₁-α₂ and β₁-β₂ salt bridges. At pH 10.66, the dissociation rates of HbO₂, HbCO, methemoglobin, and …

Pintail Reproduction Hampered By Snowfall And Agriculture, Gary Krapu

United States Geological Survey, Northern Prairie Wildlife Research Center: Publications

The reproductive strategy of the Pintail (Anas acuta) shows several adaptations to the semi-arid variable climate of the prairie pothole region of north central North America where the species is a common breeder. By nesting early and using temporary and seasonal water areas replenished by snow melt waters or early spring rains, the species has successfully occupied broad areas containing limited permanent and semi-permanent water. The Pintail is prone to select new breeding grounds during periods of drought. Smith (J. Wildl. Manage. 34:9@-946, 19701 has shown that part of the population moves northward from the prairies and parklands …

Review Report For Water Resources Development Missouri River South Dakota, Nebraska, North Dakota, Montana, Volume 2 Of 3

United States Army Corps of Engineers, Omaha District

The purpose of this study is to investigate a wide range of water resources problems and opportunities all having in common some link with the Missouri River. A number of outstanding, interrelated Congressional actions affecting the river reach upstream from Sioux City have been consolidated under this investigation. Authority to combine five outstanding surveys is contained in Office, Chief of Engineers' (DCE's) first indorsement to Missouri River Division letter of 3 July 1972, subject: "Consolidation of Survey Investigations of the Metropolitan Region of Kansas City, the Platte River in Nebraska, and the Missouri River from Sioux City to Fort Peck …

Wildlife Habitat Evaluation Of The Unchannelized Missouri River In South Dakota, James R. Clapp

United States Army Corps of Engineers, Omaha District

Areas of eight habitats were identified, delineated, and measured along the unchannelized Missouri River in South Dakota. Agricultural and urban developments existed on 60 percent of the land within 1 km of the river. Six habitat types made up the non-developed land in the study area: cottonwood-dogwood (16 percent), cottonwood-willow (9 percent), elm-oak (7 percent), cattail marsh (3 percent), sand dune (3 percent), and sand bar (1 percent). All non-developed habitats except sand bar were sampled to obtain vegetative composition and to determine their value to wildlife. The value of each habitat to nine faunal groups of wildlife was subjectively …

Pictorial Interference With Geometric Shapes And Achromatic Shades, Richard P. Compton, John H. Flowers

Department of Psychology: Faculty Publications

In two experiments, subjects were required to match printed names with subsequently displayed achromatic shades or geometric shapes. The presence of incongruent shades or shapes at the time of word display substantially slowed the RT for performing the match.

Some Questions About Anthropological Linguistics: The Role Of The Native (A Review Of A Critical Analysis By Michael L. Blake), Kenneth Hale

Nebraska Anthropologist

The author seems to be greatly concerned about current trends within his profession of Anthropological Linguistics. He has made some extremely valid observations and some equally valid suggestions to reconstruct the field of Linguistics in order to deal with pertinent problems of today.

Hale views Anthropology as a product of its origin. He believes that it is constrained by the limitations of a white Anglo-Saxon denomination in the field, in academic endeavors, and more precisely in its most important aspect, it's application. In particular he attacks the idea that non-native speakers, as objective observers, are more successful. The probable cause …

A 'Hedge' Against Cultural Dominance (A Review Of Counter Culture And Cultural Hegemony: Some Notes On The Youth Rebellion Of The 1960'S By A. Norman Klein), Patrick F. Mccarty

Nebraska Anthropologist

During the 1960's, student unrest became an issue of international proportions. College-age protesters participated in various forms of dissent (peaceful and violent) for various reasons. Because of their break with conventional beliefs and customs, the youth of the 60's were identified as a subculture or "counter culture". This counter culture was established to protest critical issues ignored by the dominant culture. In his article on counter culture and cultural hegemony, A. Norman Klein addresses the nature of cultural dominance in America. He argues that a study of the youth movement of the 60's reveals the true character of hegemonic culture.