Law Commons^™

Neurodiversity And The Legal Profession, Kala Mueller, Stefanie S. Pearlman

Nebraska College of Law: Faculty Publications

This article discusses ways to make the legal profession in Nebraska more accessible and inclusive for neurodivergent attorneys, beginning in law school and continuing through licensing, and hiring practices.

Why School Choice Is Necessary For Religious Liberty And Freedom Of Belief, Richard F. Duncan

Nebraska College of Law: Faculty Publications

The government school monopoly for funding K–12 education creates a coercive system that commandeers a captive audience of impressionable children for inculcation in secular ideas, beliefs, and values concerning matters of truth, moral character, culture, and the good life. The brutal bargain imposed on parents by this monopoly requires them to choose between the single largest benefit most families receive from state and local governments and educating their children in a curriculum that is consistent with the preferred educative speech of the parents. To choose the latter is to sacrifice hundreds of thousands of dollars of tax-funded support for K–12 …

Examination Of Eviction Filings In Lancaster County, Nebraska, 2019–2021, Ryan Sullivan

Nebraska College of Law: Faculty Publications

The study examined and analyzed eviction filings and proceedings in Nebraska, with a specific focus on Lancaster County—the home to the State’s capital, Lincoln. The primary objective of this study is to place eviction proceedings under a microscope to gain a better understanding of the volume of evictions in Nebraska, and whether the statutorily mandated processes are being followed. The study also attempts to capture the impact of certain external factors present during the period examined. Such factors include the COVID-19 pandemic and various eviction moratoria in place during 2020 and 2021, as well as the increased availability of legal …

Survey Of State Laws Governing Fees Associated With Late Payment Of Rent, Ryan Sullivan

Nebraska College of Law: Faculty Publications

The Survey contains both a cumulative and detailed account of the laws of each state governing late fees and penalties associated with late payment of rent involving residential tenancies. States that impose late fee maximums vary greatly on the amount and form of the limitation—some limit the late fee to a certain percentage of the rental amount, a few states impose a dollar amount maximum, and several states impose both. Some states, rather than limiting the late fee to a certain amount, only require that the late fee be “reasonable.” Additionally, a handful of states mandate that late fees can …

Viewpoint Compulsions, Richard F. Duncan

Nebraska College of Law: Faculty Publications

Under the Supreme Court's First Amendment jurisprudence, laws that abridge the freedom of speech on the basis of the content of the speech "are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." Laws abridging speech are content-based if they regulate speech based on "the topic discussed or the idea or message expressed." Thus, a law is content-based if it either restricts or compels speech based on its subject matter. In other words, content discrimination "is a spacious concept that embraces whole subjects of discourse regardless of the …

Transparency And Reliance In Antidiscrimination Law, Steven L. Willborn

Nebraska College of Law: Faculty Publications

All antidiscrimination laws have two structural features – transparency and reliance – that are important, even central, to their design, but have gone largely unnoticed. On transparency, some laws, like the recent salary-ban laws, attempt to prevent the employer from learning about the disfavored factor on the theory that an employer cannot rely on an unknown factor. Other laws require publication of the disfavored factor, such as salary, on the theory that it is harder to discriminate in the sunlight. Still other laws are somewhere between these two extremes. The Americans with Disabilities Act, for example, limits but does not …

Survey Of State Laws Governing Continuances And Stays In Eviction Proceedings, Ryan Sullivan

Nebraska College of Law: Faculty Publications

The Survey contains both a cumulative and detailed account of the laws and rules of each state governing continuances, adjournments, and stays in residential eviction proceedings. The Survey compares the laws of each state on several aspects, including the standard for obtaining a continuance, the allowable length of the continuance, whether a bond must be paid, and any other restriction or limitation placed on the party seeking to continue an eviction proceeding. The Survey also includes a listing of state statutes that provide a residential tenant a right to redeem the property upon payment of rent prior to the execution …

Revitalizing Fourth Amendment Protections: A True Totality Of The Circumstances Test In § 1983 Probable Cause Determinations, Ryan Sullivan

Nebraska College of Law: Faculty Publications

The Article analyzes claims of police misconduct and false arrest, specifically addressing the issue of whether a police officer may ignore evidence of an affirmative defense, such as self-defense, when determining probable cause for an arrest. The inquiry most often arises in § 1983 civil claims for false arrest where the officer was aware of some evidence a crime had been committed, but was also aware of facts indicating the suspect had an affirmative defense to the crime observed. In extreme cases, the affirmative defense at issue is actually self-defense in response to the officer’s own unlawful conduct. As police …

Courts, Culture, And The Lethal Injection Stalemate, Eric Berger

Nebraska College of Law: Faculty Publications

The Supreme Court's 2019 decision in Bucklew v. Precythe reiterated the Court's great deference to states in Eighth Amendment lethal injection cases. The takeaway is that when it comes to execution protocols, states can do what they want. Events on the ground tell a very different story. Notwithstanding courts' deference, executions have ground to a halt in numerous states, often due to lethal injection problems. State officials and the Court's conservative Justices have blamed this development on "anti-death penalty activists" waging ''guerilla war" on capital punishment. In reality, though, a variety of mostly uncoordinated actors motivated by a range of …

Defense Against The Dark Arts: Justice Jackson, Justice Kennedy And The No-Compelled-Speech Doctrine, Richard F. Duncan

Nebraska College of Law: Faculty Publications

According to Justice Anthony M. Kennedy, "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought. " If this is so, and I believe it is, then the greatest threat to freedom, the darkest of the dark arts of government, occurs when the law compels persons to speak and thus commandeers their intellectual autonomy. Only a vibrant First Amendment is an adequate defense against this darkest of the dark arts.

This Article traces the Supreme Court's First Amendment jurisprudence protecting speaker autonomy and the "right not …

Comparative Capacity And Competence, Eric Berger

Nebraska College of Law: Faculty Publications

Andrew Coan’s excellent book, Rationing the Constitution, sheds important new light on an important facet of Supreme Court decision-making: judicial capacity. Professor Coan argues persuasively that courts’ capacity—and, in particular, the U.S. Supreme Court’s capacity—plays an important role in shaping various constitutional doctrines. By “capacity,” Coan means the number of cases that courts can realistically decide while preserving the judiciary’s own professional commitments to careful deliberation and reasoned decision-making.3 Because judges realize that their resources are limited, they shape various constitutional doctrines to deter potential litigants, lest a flood of constitutional plaintiffs inundate them with more cases than they …

A Piece Of Cake Or Religious Expression: Masterpiece Cakeshop And The First Amendment, Richard F. Duncan

Nebraska College of Law: Faculty Publications

Sadly, religious liberty has become a matter of great controversy and division in our society. Although not so many years ago there was a nearly unanimous, bi-partisan consensus supporting the legal protection of religious liberty from laws substantially burdening the free exercise of religion, irreconcilable differences among us over contraception, abortion, sexuality, and the nature of marriage have made religious liberty a divisive partisan issue. Although most religious liberty cases concern religious minorities whose religiously-motivated conduct has been disregarded “by an insensitive majority,” a handful of cases involving Christian-owned businesses and ministries claiming a religious liberty right to refuse to …

Persuasive Authority And The Nebraska Supreme Court: Are Certain Jurisdictions Or Secondary Resources More Persuasive Than Others?, Stefanie S. Pearlman

Nebraska College of Law: Faculty Publications

In this article, the author analyzes whether the Nebraska Supreme Court—as currently composed—favors particular jurisdictions or certain types of secondary resources as authority when there is a lack of precedent on a given legal issue. For this study, the author reviewed the advance opinions in Volume 295 of the Nebraska Reports to address two hypotheses: (1) When there is an absence of binding authority, it is typically better to cite to a state similar to your state—one that borders your state or that shares the same circuit; and (2) When using secondary resources, it is better to use resources authored …

When Facts Don’T Matter, Eric Berger

Nebraska College of Law: Faculty Publications

We are used to thinking that facts shape legal outcomes, but sometimes the Supreme Court wants nothing to do with facts. In some high-profile constitutional decisions, the Roberts Court has ignored important congressional findings, deeming irrelevant facts that document the very mischief Congress sought to remedy. Similarly, in these same cases the Court exploits the muddy line between facial and as-applied challenges to avoid confronting particular facts. The Justices in these cases do not question the veracity of seemingly relevant facts. Rather, they write their opinions as though these facts don’t matter. This Article examines the Court’s penchant for brushing …

Confidentiality And Whistleblowing, Richard Moberly

Nebraska College of Law: Faculty Publications

I. A (BRIEF) HISTORY OF WHISTLEBLOWING IN THE LAST FIFTEEN YEARS: A. Antiretaliation Protections, B. Bounty Provisions. C. Structural Disclosure Channels

II. THE CORPORATE RESPONSE. : A. Using Confidentiality Provisions, B. Results from Broad Study of Settlement Agreements—1. Brief Background on the Study, 2. The Prevalence of Confidentiality Provisions.

III. GOVERNMENT COUNTERMOVES: A. SEC Rule 21F-17, B. OSHA Guidance, C. Government Contractors

Companies often require confidentiality from their employees. Maintaining corporate secrets helps protect intellectual property and gives a company an edge in a competitive marketplace. The law generally supports this corporate desire for secrecy through statutes that prohibit …

Of Law And Legacies, Eric Berger

Nebraska College of Law: Faculty Publications

This contribution to the symposium on President Obama’s constitutional legacy examines the relationship between constitutional law and presidential legacies. Americans respect or even revere many presidents despite their apparent constitutional violations. Some unconstitutional actions, though, appear more forgivable than others. The effect constitutional transgressions may have on a president’s more general legacy turns on a variety of contextual factors, including, among others, the president’s values and vision, the administration’s political successes and failures, political opponents’ principles and behavior, the challenges confronting the country, and the nature of the constitutional norms at issue. Constitutional law, as articulated by lawyers and judges, …

Law Professors Want Hearing, Vote On Garland, Eric Berger, Kristen M. Blankley, Brian H. Bornstein, Eve M. Brank, Robert C. Denicola, Alan H. Frank, Stephen S. Gealy, Justin Hurwitz, David Landis, Craig M. Lawson, Richard Leiter, William H. Lyons, Richard H. Lawson, Matt Novak, Allen Overcash, Stefanie S. Pearlman, Ross Pesek, Kevin Ruser, Robert F. Schopp, Anthony Schutz, Anna Williams Shavers, Brett C. Stohs, Ryan Sullivan, Richard L. Weiner, Steven L. Willborn, Sandra Zellmer

Nebraska College of Law: Faculty Publications

Dear Senator Fischer and Senator Sasse,

We write this as citizens, but we all teach at the University of Nebraska College of Law. We hold different political viewpoints and disagree frequentIy with each other on political and legal issues. As law professors, however, we share a deep commitment to the rule of law and an impartial judiciary. We therefore urge you to hold confirmation hearings and a vote on President Obama's Supreme Court nominee, Chief Judge Merrick B. Garland.

Youthful Offenders And The Eighth Amendment Right To Rehabilitation: Limitations On The Punishment Of Juveniles, Martin R. Gardner

Nebraska College of Law: Faculty Publications

To understand the potential scope of the Court's implicit conclusion that the punishment of adolescents is unconstitutional unless a meaningful opportunity for rehabilitation is afforded, it is necessary to carefully distinguish and clarify the distinction between the conflicting concepts of punishment and rehabilitation. I therefore begin Part I by analyzing this distinction. Since the logic of the Court's decisions impacts the punishment of adolescents in both the juvenile and criminal justice contexts, I contrast the two systems in Part II by tracing the development of the juvenile court movement from its original rehabilitative origins towards an increasingly punitive model, dispensing …

Justice Scalia And The Rule Of Law: Originalism Vs. The Living Constitution, Richard F. Duncan

Nebraska College of Law: Faculty Publications

Justice Antonin Scalia's sudden death in February, 2016, was a great loss for his family, a great loss for his friends, and a great loss for the "Written Constitution" of the United States of America. We will have no more of his brilliant, witty, and pugnacious judicial opinions. Instead, we will have to settle for the body of work he left behind as his legacy. But, as one commentator has said, his opinions are "so consistent, so powerful, and so penetrating in their devotion to the rule of law"—the real rule of law, not the political decrees of judges creating …

Oh What A Tangled Web We Weave: Mind Mapping As Creative Spark To Optimize Transactional Clinic Assignments, Brett C. Stohs

Nebraska College of Law: Faculty Publications

Client assignments are among the most important factors that affect a student's experience in a live-client transactional law clinic. Student "attorneys" are presented with meaningful opportunities to engage with and learn from clients by applying their still-developing professional bona fides to real people with legal challenges. As a result, decisions regarding allocation and distribution of client matters are among the most important pedagogical decisions transactional clinical faculty make. By taking into account the unique and sometimes complex individual characteristics of each client and student, clinical faculty can optimize these allocations and maximize achievement of important objectives. Mind mapping can help …

Gross Error, Eric Berger

Nebraska College of Law: Faculty Publications

Glossip v. Gross epitomizes judicial deference gone berserk. In rejecting an Eighth Amendment challenge to Oklahoma’s lethal injection protocol, the United States Supreme Court rested its holding on several forms of deference. Closer examination demonstrates that each of these unsupported deference determinations was, at best, contestable and, at worst, simply wrong. Far from being anomalous, such under-theorized deference reflects more generally the Court’s willingness to utilize various stealth determinations to manipulate outcomes in constitutional cases. The understandable concern that frivolous lethal injection challenges will clog courts and delay executions likely motivated the Court’s approach. Remarkably, though, the Court did not …

Kermit Gosnell’S Babies: Abortion, Infanticide And Looking Beyond The Masks Of The Law, Richard F. Duncan

Nebraska College of Law: Faculty Publications

If, as Laurence Tribe has observed, “all law tells a story,” this Article tells two stories occurring forty years apart—the story of Justice Harry Blackmun and the unborn human beings he covered with the legal mask of “potential” lives in Roe v. Wade in 1973, and the story of Doctor Kermit Gosnell and the unmasked babies he was convicted of murdering in his Philadelphia abortion clinic in 2013. As Professor Tribe also observes, these stories amount to “a clash of absolutes, of life against liberty,” and therefore they are stories that must be told time and again, until we get …

Taxing Honesty, Adam Thimmesch

Nebraska College of Law: Faculty Publications

It is commonly accepted that state use taxes, most notably those that are due on Internet purchases, are largely unenforceable against individual consumers. Consistent with that view, states have focused their enforcement efforts on forcing retailers to collect those taxes at the point of sale, and taxpayers have maintained nearly complete indifference toward remitting the tax of their own accord. This combination of factors has transformed the state use tax into a de facto tax on honesty—a tax with which only our most principled, risk-averse, or perhaps foolish even attempt to comply. The current structure of these taxes is further …

Civil Shoplifting Statutes By State, Ryan Sullivan

Nebraska College of Law: Faculty Publications

What follows is a collection of state statutes that provide merchants a civil remedy against individuals accused of shoplifting.

For additional information on civil shoplifting statutes see: National Survey of State Laws, http://heinonline.org/HOL/Index?collection=nssl, search: Civil Shoplifting Statutes

Ryan P. Sullivan, et al., Stolen Profits: Civil Shoplifting Demands and the Misuse of NEB. REV. STAT. § 25-21,194, Neb. L. Rev. (forthcoming August 2016)

This collection of state shoplifting statutes was last updated February 8, 2016.

Survey Of State Civil Shoplifting Statutes, Ryan Sullivan

Nebraska College of Law: Faculty Publications

Acts of shoplifting cost retailers billions of dollars each year. In an effort to reduce the frequency and economic impact of this type of theft, all 50 states and the District of Columbia have enacted civil shoplifting statutes. These statutes, which operate independently of and in addition to the respective state’s criminal statutes, provide retailers a special civil remedy against individuals who shoplift from their stores. Most civil shoplifting statutes permit a retailer to recover from the shoplifter not only the actual damages suffered as a result of the incident of shoplifting, but also a substantial civil penalty. In Mississippi, …

The Rhetoric Of Constitutional Absolutism, Eric Berger

Nebraska College of Law: Faculty Publications

Though constitutional doctrine is famously unpredictable, Supreme Court Justices often imbue their constitutional opinions with a sense of inevitability. Rather than concede that evidence is sometimes equivocal, Justices insist with great certainty that they have divined the correct answer. This Article examines this rhetoric of constitutional absolutism and its place in our broader popular constitutional discourse. After considering examples of the Justices’ rhetorical performances, this Article explores strategic, institutional, and psychological explanations for the phenomenon. It then turns to the rhetoric’s implications, weighing its costs and benefits. This Article ultimately argues that the costs outweigh the benefits and proposes a …

The Executioners‘ Dilemmas, Eric Berger

Nebraska College of Law: Faculty Publications

When people learn that I study lethal injection, they are usual-ly curious to know more (or at least they are polite enough to ask questions). Interestingly, the question that arises most often—from lawyers, law students, and laypeople—is why states behave as they do. In the wake of botched executions and ample evidence of lethal injection‘s dangers, why do states fail to address their execution procedures‘ systemic risks? Similarly, why do states so vigorously resist requests to disclose their execution procedures‘ details? This symposium essay takes a stab at answering these ques-tions. In the interest of full disclosure, I should admit …

Lying, Stealing, And Cheating: The Role Of Arbitrators As Ethics Enforcers, Kristen M. Blankley

Nebraska College of Law: Faculty Publications

This Article will begin in Part II with a short description of the expansion of judicial immunity, which is one of the biggest motivating reasons for concern for arbitral ethics. If judicial immunity were not extended to the arbitral forum, parties who fall victim to unethical practices in the arbitral forum might have recourse. Immunity for arbitration participants, then, creates a pressing need for other reform. Reform, as noted in Part III, could be achieved through changes to the law—particularly by expanding the criminal laws dealing with crimes against the administration of justice to the arbitral forum or ever so …

Wilderness Imperatives And Untrammeled Nature, Sandra Zellmer

Nebraska College of Law: Faculty Publications

Wilderness is often considered the epitome of naturalness – what nature ought to be. Indeed, in many ways, society, through its environmental laws, has prioritized the protection of wilderness over other areas of nature and other aspects of naturalness. We give our wilderness areas iconic names, like Delirium, Desolation, Devil’s Backbone, River of No Return, and Superstition, and we idealize themand treat them as something utterly unique and apart from our technology-ridden daily lives.

The nation’s preeminent wilderness statute, the Wilderness Act of 1964, is credited with significant preservation achievements. Over the years, the Act has remained remarkably robust, with …

Wilderness Preserves: Still Relevant And Resilient After All These Years, Sandra Zellmer, John M. Anderies

Nebraska College of Law: Faculty Publications

This chapter explores the continuing relevance of preserving wilderness by preventing active human intervention. It concludes that the symbolic and ecological benefits of wilderness are as significant today as they were fifty years ago. Indeed, the importance of preserving wilderness areas will only increase as the climate changes. Land managers face complex challenges, however, when they are managing wilderness resources that are already degraded due to climate change or other human impacts and that may require intervention to prevent further degradation. Deciding whether and how to intervene with active management tools while maintaining the overarching “wild” values of wilderness is …