Legal Studies Commons^™

United States V. Steinmetz: The Legal Legacy Of The Civil War, Revisited, Susan Poser, Elizabeth R. Varon

Nebraska College of Law: Faculty Publications

One of the enduring and yet unresolved issues concerning the Civil War is its legal nature: Was it an insurrection or an international war? During the war and since, the United States courts have repeatedly been called upon to determine the status of property which was under the control of the Confederacy and its agents during the Civil War. In the process of making such determinations, the courts have reopened questions about the war's legal status. United States v. Steinmetz is such a case.

Homosexual Rights And Citizen Initiatives: Is Constitutionalism Unconstitutional?, Richard F. Duncan, Gary L. Young

Nebraska College of Law: Faculty Publications

Grassroots initiatives like Amendment Two are the product of a populist revolt against restrictive homosexual rights laws. These initiatives are an attempt by the people to protect their basic civil liberties and to promote equal citizenship values. Homosexual rights legislation stigmatizes, marginalizes, and fences out groups and individuals who hold traditional beliefs about sexual morality. Citizen initiatives operate to remove this stigma and its harmful consequences by restoring government to a position of benign neutrality regarding competing visions of human sexuality.

When initiatives like Amendment Two are approved by vote of the people, they are likely to be challenged under …

As I Lay Writing: How To Write Law Review Articles For Fun And Profit: A Law-And-Economics, Critical, Hermeneutical, Policy Approach And Lots Of Other Stuff That Thousands Of Readers Will Find Really Interesting And Therefore You Ought To Publish In Your Prestigious, Top-Ten, Totally Excellent Law Review, C. Steven Bradford

Nebraska College of Law: Faculty Publications

You've made it onto a law faculty, and you're wondering what to do. Teaching obviously isn't going to occupy much of your time. You prepare your notes the first year, and you're home free. To fill the gap in your life, why not publish something in a law review?

Publishing an article in a law review is an honor and a privilege. "[L]aw reviews hold a special place of trust and importance in the legal system and in society"; they "play a vital role in the preservation of society." Most important, they make it much easier for a law professor …

Regulation A And The Integration Doctrine: The New Safe Harbor, C. Steven Bradford

Nebraska College of Law: Faculty Publications

Critics have long charged that the Securities Act of 1993 (Act) and the Securities and Exchange Commission (SEC), which administers the Act, are insensitive to the capital formation needs of small businesses. The Act's regulatory regime, it has been argued, is too rigid and expensive and discourages or precludes small businesses from selling securities. In 1992, in reaction to such criticism, the SEC proposed a variety of rule changes designed "to facilitate capital raising by small businesses and reduce the compliance burdens placed on these companies by the federal securities laws." Among these "small business initiatives," adopted in the summer …

Battered Woman Syndrome, Expert Testimony, And The Distinction Between Justification And Excuse, Robert F. Schopp, Barbara J. Sturgis, Megan Sullivan

Nebraska College of Law: Faculty Publications

Robert Schopp and his coauthors, Barbara Sturgis and Megan Sullivan, discuss the practical effects and the viability of the battered woman syndrome as a support for self-defense. The authors detail the conflict inherent in demonstrating the "reasonableness" of the defendants' actions through the premise that she was psychologically impaired. They argue that current research on battered women does not show key characteristics posited by the theory. The authors conclude that, use of the syndrome to support a legal defense is misleading and may harm the credibility of women in their claims of self-defense.

Who Wants To Stop The Church: Homosexual Rights Legislation, Public Policy, And Religious Freedom, Richard F. Duncan

Nebraska College of Law: Faculty Publications

Religions that make peace with the spirit of the age have little to fear from the rulers of the day. But believers who refuse to adapt their religious practices to the Zeitgeist are vulnerable under Smith, unless the Court decides to protect religious pluralism by giving full scope to Smith's exceptions.

I have tried to show that homosexual rights legislation imposes heavy costs on the right of employers and landlords to take character into account when making business decisions. These costs are particularly heavy when borne by religiously-motivated persons, who are declared outlaws merely for trying to obey God …

Ten Reasons To Attend Law School, C. Steven Bradford

Nebraska College of Law: Faculty Publications

Each year, approximately 1.5 billion otherwise sane college graduates enter law school. (This figure includes at least 350 students a year in countries other than the United States. ) These new law students come from all walks of life-laid-off brokers, laid-off autoworkers, unemployed M.B.A.s, disillusioned public school teachers, political science majors, political science majors, and more political science majors. Three years later, they emerge-the best and brightest nonproductive professionals that any struggling debtor nation has ever produced, the core of America's hopes for the twenty-first century.

Why do they do it? What is it about law school that attracts so …

What Happens If Roe Is Overruled? Extraterritorial Regulation Of Abortion By The States, C. Steven Bradford

Nebraska College of Law: Faculty Publications

Since 1973, states have effectively been prohibited from regulating most abortions. As every lawyer, law student, and almost every other American adult knows, the United States Supreme Court held in Roe v. Wade that a woman has a constitutional right to have an abortion. It is also common knowledge that in recent years the Supreme Court has been slowly restricting, or refusing to extend, that right.

The future of Roe v. Wade is uncertain, particularly after the Supreme Court's most recent abortion decision, Planned Parenthood v. Casey. The actual restrictions on abortion upheld in Casey are less important than the …

Justification Defenses And Just Convictions, Robert F. Schopp

Nebraska College of Law: Faculty Publications

The fully competent, culpable, and malevolent Spike azttacks Mother Beneficence with a tire iron in order to steal the alms she has collected for the poor. Mother Beneficence defends herself by kicking Spike in the shins, and Dudley Doright rushes to her rescue, punching Spike in the nose, knocking him to the ground, and holding him until the police arrive. Dudley acts solely for the purposes of preventing harm to Mother Beneficence and bringing Spike to justice.

Both Mother Beneficence and Dudley fulfill the offense elements for assault in that they purposely cause bodily injury to another human being. Most …

International Human Rights, Morality In War, And The Structure Of Rights, Edward C. O'Dowd, Robert F. Schopp

Nebraska College of Law: Faculty Publications

A careful analysis of certain issues of morality in war demonstrates important differences in the duties recognized by Western and Chinese military) officers toward their soldiers. These differences reflect fundamentally different theories of social morality in the societies these officers represent. Although Western countries and China have endorsed a common set of internationally recognized human rights, a meaningful consensus regarding human rights must remain consistent across three levels of analysis. The putative contemporary) consensus among Chinese and liberal societies fails because the fundamental differences in underlying principles of social morality that give rise to divergent principles of morality in war …

Transforming The Role Of The Social Security Administration, Colleen E. Medill

Nebraska College of Law: Faculty Publications

Social Security benefits were never designed to be one’s sole source of retirement income. Due to fiscal constraints, it is likely that Social Security benefits in the future will be less generous when the young workers of today retire. In the future, retirement income security will depend heavily on wealth accumulated during one’s working years. The role of the Social Security Administration must be transformed to one of motivating, informing, and educating the young workers of today about retirement financial planning so that they can adequately plan and prepare for a financially secure retirement tomorrow.

The Gettysburg Address As Written By Law Students Taking An Exam, C. Steven Bradford

Nebraska College of Law: Faculty Publications

A Cameroonian proverb states that "[h]e who asks questions cannot avoid the answers,"' and, unfortunately, that proverb applies to law professors. At the end of each semester, law professors must endure the agony of creation that Mary Shelley's Dr. Frankenstein had to experience only once in his life. We are horrified to see the monsters we have created, so different from what we intended. The joy of teaching is the constant challenge and interaction with students in the classroom; the agony of teaching is reading what some of those same students have written on their examinations.

Of course, not all …

Following Dead Precedent: The Supreme Court's Ill-Advised Rejection Of Anticipatory Overruling, C. Steven Bradford

Nebraska College of Law: Faculty Publications

Stare decisis is an integral, accepted principle of American and common-law jurisprudence. The idea that courts should follow past decisions, whether of the same or a higher court, was accepted before this nation was born and continues to be generally accepted today. Criticism of stare decisis is equally ancient, however. A countervailing tradition allows a court to overrule precedent to correct its errors and develop the law. "The life of the law has not been logic," Holmes wrote; "it has been experience." Stare decisis has never been an inexorable command in the American system; courts have always been willing to …

The Possible Future Of Private Rights Of Action For Proxy Fraud: The Parallel Between Borak And Wilko, C. Steven Bradford

Nebraska College of Law: Faculty Publications

This is a story of parallels-two cases decided by the United States Supreme Court eleven years apart, one now overruled, the other unchallenged for over twenty-five years. Both cases are important federal securities law decisions, but substantively they are quite different. In Wilko v. Swan, a 1953 decision, the Supreme Court held that predispute agreements to arbitrate claims arising under the Securities Act of 1933 (1933 Act) were unenforceable because arbitration would not adequately protect the rights the 1933 Act gave injured investors. In J.I. Case Co. v. Borak, decided in 1964, the Court held that persons injured …

Conflict Of Laws And The Attorney-Client Privilege: A Territorial Solution, Steven Bradford

Nebraska College of Law: Faculty Publications

Choice-of-law issues have always been among the most difficult legal issues. Legal questions that are difficult when only one state is involved become herculean when a choice must be made from among the different laws of several jurisdictions. The difficulty of conflicts law is increased by the theoretical quarrels among courts and scholars. Scholars and judges are unable to agree on an underlying theory of choice of law, much less the result in particular cases. A number of different approaches compete for attention, producing an eclectic body of case law.

Originally, "vested rights" territorialism dominated choice of law. Courts applied …

Wake Up And Die Right: The Rationale, Standard, And Jurisprudential Significance Of The Competency To Face Execution Requirement, Robert F. Schopp

Nebraska College of Law: Faculty Publications

Contemporary American criminal law prohibits the execution of those who are not competent to face execution. The state cannot execute convicted offenders, including those who have been sentenced to death for capital crimes under valid law and through acceptable procedures, unless those offenders are competent at the time of execution. Although this requirement applies in all states that practice the death penalty and traces its heritage deep into the common law, its exact formulation remains controversial as does the appropriate rationale and the corresponding procedure.'

Five identifiable questions have troubled courts and commentators. First, what rationale justifies this requirement? Second, …

The Psychotherapist's Duty To Protect The Public: The Appropriate Standard And The Foundation In Legal Theory And Empirical Premises, Robert F. Schopp

Nebraska College of Law: Faculty Publications

Several states have established a duty on the part of psychotherapists to protect the public from harm caused by their dangerous patients. The Supreme Court of California initially articulated this duty in the widely discussed Tarasoff case where the court stated:

When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. This discharge of this duty may require the therapist ... to warn the intended victim or others... to …

Stampeding Shareholders And Other Myths: Target Shareholders And Hostile Tender Offers, C. Steven Bradford

Nebraska College of Law: Faculty Publications

Hostile tender offers have captured broad public attention. Almost every businessman, business lawyer, and student of corporate law knows the basic script. A bidder, often described pejoratively as a raider, makes a public tender offer to purchase a controlling block of the stock of another corporation, known as the target. Target management opposes the offer, but because board approval is not necessary to complete a tender offer, the decision rests in the hands of the target shareholders. If enough of the target shareholders tender, the bidder gains control, and any remaining shareholders are cashed out in a merger between the …

Education And Contraception Make Strange Bedfellows: Brown, Griswold, Lochner, And The Putative Dilemma Of Liberalism, Robert F. Schopp

Nebraska College of Law: Faculty Publications

Future historians may contend that the Supreme Court decisions in Brown v. Board of Education and Griswold v. Connecticut represent the apex of liberal legal and political thought. Thirty-five years after Brown, however, the attempt to clarify and implement the jurisprudence of equal protection represented by that case remains incomplete. Programs designed to effectuate the equal protection mandate of Brown through methods such as busing, hiring quotas or goals, preferential treatment, and affirmative action continue to incite controversy. The Supreme Court's recent ruling in City of Richmond v. Croson Co. demonstrates that the justices remain deeply divided regarding the …

Religious Civil Rights In Public High Schools: The Supreme Court Speaks On Equal Access, Richard F. Duncan

Nebraska College of Law: Faculty Publications

The Supreme Court's recent decision in Board of Education v. Mergens, which upheld the constitutionality of the Equal Access Act and decided that the Act was violated on the facts before the Court, must be viewed against the background of governmental discrimination and the struggle for religious civil rights. Mergens is truly a civil rights case, and we must heed its lessons if we are serious about our claim to be a fair, open, and pluralistic society.

Shooting Yourself In The Foot With Due Care: Psychotherapists And Crystallized Standards Of Tort Liability, Robert F. Schopp, David B. Wexler

Nebraska College of Law: Faculty Publications

Professional organizations sometimes promulgate guidelines intended to inform their members' practice. These standards may be designed to guide practitioners under ordinary conditions, or they may define an ideal toward which to strive. If courts adopt idealized standards as criteria of responsible practice for the purpose of establishing tort liability, professional organizations might respond by refraining from developing such guidelines or by framing them with an eye toward preventing liability rather than strictly for the purpose of enhancing patient care. In either case, the courts' actions and the organizations' responses might hinder, rather than enhance, the therapeutic project of the mental …

Title Vii And The Age Discrimination In Employment Act: Should Partners Be Protected As Employees?, Colleen E. Medill

Nebraska College of Law: Faculty Publications

In deciding whether a state law partner is an "employee" under Title VII or the ADEA, the test proposed by this Comment is as follows: (1) Did the partnership agreement create an "expulsion power" in favor of the partnership? If so, a rebuttable presumption exists that the partner is an "employee." (2) Assuming the partner cannot be expelled without cause, is this an "expendable partner?" Could the partnership afford to pay the partner the value of his partnership interest if he decides to leave? If so, a rebuttable presumption arises that the partner is an employee.

This test has several …

Protecting Shareholders From Themselves? A Policy And Constitutional Review Of A State Takeover Statute, C. Steven Bradford

Nebraska College of Law: Faculty Publications

American business in the last twenty-five years has experienced an explosion in the number of hostile corporate takeovers. Attempts to acquire billion-dollar companies are becoming commonplace. Smaller takeovers barely attract the attention of the financial press. The likelihood of a tender offer has become another everyday concern of management, as much a part of the business landscape as sales figures and profit margins.

Proponents of hostile corporate takeovers argue that such takeovers generally benefit society and corporate shareholders. They provide a way to discipline the management of companies which are operating inefficiently or not returning the full value of their …

Returning To M'Naghten To Avoid Moral Mistakes: One Step Forward, Or Two Steps Backward For The Insanity Defense, Robert F. Schopp

Nebraska College of Law: Faculty Publications

The history of the not guilty by reason of insanity (NGRI) defense has been characterized by an extended search for a satisfactory standard. For many years, the M'Naghten test was the standard applied by the majority of courts in the United States. The M'Naghten test has been widely criticized, however, as being too narrow, over-emphasizing the cognitive aspect of personality, and artificially restricting the scope of expert testimony. In 1955, the American Law Institute (ALI) proposed an alternative standard as part of its Model Penal Code. Since that time, there has been a marked trend in many jurisdictions from the …

Loan Payments To Secured Creditors As Preferences Under The 1984 Bankruptcy Amendments, Richard F. Duncan

Nebraska College of Law: Faculty Publications

The recent bankruptcy amendments made significant revisions in the law of preferences. At least one of these changes, the elimination of the forty-five day rule from section 547(c)(2), has the potential of rendering the trustee impotent against creditors who receive preferential loan payments while other creditors go unpaid. If this possibility materializes, the primary policy of bankruptcy preference law, equality of distribution among similarly situated creditors, will be severely undercut. The bankruptcy courts should respond by construing the ordinary course requirement strictly so as to avoid extending its protection to preferential payments of long-term loans and other atypical financings. If …

Tarasoff, The Doctrine Of Special Relationships, And The Psychotherapist's Duty To Warn, Robert F. Schopp, Michael R. Quattrocchi

Nebraska College of Law: Faculty Publications

The California Supreme Court, in its controversial Tarasoff decision, ruled that a psychotherapist may be found negligent when he fails to prevent his patient from harming someone.

When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending on the nature of the case. Thus it may call for him to warn …

Section 547(C)(1) And Delayed Perfection Of Security Interests In The Ninth Circuit: In Re Vance, 721 F.2d 259 (9th Cir. 1983), Richard F. Duncan

Nebraska College of Law: Faculty Publications

The Bankruptcy Reform Act's treatment of belatedly perfected security interests in personal property is enigmatic, because it attempts to employ preference law to avoid a class of transfers, so-called "secret liens," that are not true preferences. When a security interest is granted in exchange for contemporaneous value, preference policy in bankruptcy is not offended, because the transaction does not cause a depletion of the debtor's estate for the benefit of a particular creditor. However, the effect of the timing rules of section 547(e) of the Bankruptcy Reform Act is to treat most security interests perfected during the preference period and …

Delayed Perfection Of Security Interests In Personal Property And The Substantially Contemporaneous Exchange Exception To Preference Attack, Richard F. Duncan

Nebraska College of Law: Faculty Publications

The Bankruptcy Reform Act's treatment of belatedly perfected security interests in personal property is enigmatic, because it attempts to employ preference law to avoid a class of transfers, socalled "secret liens," that are not true preferences. When a security interest is granted in exchange for contemporaneous value, preference policy in bankruptcy is not offended, because the transaction does not cause a depletion of the debtor's estate for the benefit of a particular creditor. However, the effect the timing rules of section 547(e) of the New Act is to treat most security interests perfected during the preference period and more than …

Preferential Transfers, The Floating Lien, And Section 547(C)(5) Of The Bankruptcy Reform Act Of 1978, Richard F. Duncan

Nebraska College of Law: Faculty Publications

Case law under the Former Act provided nearly absolute protection to perfected security interests attaching to collateral during the preference period pursuant to after-acquired property clauses in valid pre-existing security agreements. The Bankruptcy Reform Act replaced this case law with a legislative compromise that first treats most, if not all, security interests attaching to after-acquired collateral within ninety days of bankruptcy as preferences, and then exempts from preference attack security interests in inventory and receivables collateral to the extent that the floating lien financer has not improved its secured position at the end of the ninety-day period.

Although section 547(c)(5) …

Through The Trap Door Darkly: Nebraska Exemption Policy And The Bankruptcy Reform Act Of 1978, Richard F. Duncan

Nebraska College of Law: Faculty Publications

The Bankruptcy Reform Act establishes a somewhat disingenuous exemption policy that first creates, and then allows the individual states to nullify, uniform federal bankruptcy exemptions. The State of Nebraska has chosen to opt out of the federal exemption scheme thereupon assuming a continuing moral obligation to ensure that its exemption policy does not deny Nebraska debtors the fresh start following bankruptcy to which they are entitled. The Unicameral should undertake an immediate reconsideration of Nebraska exemption law with a view to possible elimination of the homestead exemption in favor of an expanded exemption in lieu of homestead to be available …