Nebraska Law Review

State Power to Regulate Immigration: Searching for a Workable Standard in Light of United States v. Arizona and Keller v. City of Fremont

Christopher C. Cassiday — Fri, 08 Mar 2013 10:47:03 PST

In Nebraska, residents of the City of Fremont grew concerned about the influx of unlawful aliens into their community, many drawn by jobs at two nearby meat-packing plants. Concerned residents sought to pass an ordinance meant to deter unlawful aliens from living or working in the community. The Fremont City Council initially rejected the proposed ordinance in 2008, but voters continued to pursue the matter with a city initiative petition. The City challenged the validity of the initiative, but the Nebraska Supreme Court found the initiative procedurally proper and refused to render an advisory opinion on the substantive constitutionality of the proposed ordinance. On June 21, 2010, voters in the City of Fremont adopted the controversial Ordinance No. 5165 (the “Ordinance”) pursuant to a voter referendum. The stated purpose of the Ordinance was to “prohibit the harboring of illegal aliens or hiring of unauthorized aliens” in the City of Fremont. It sought to achieve these goals by implementing occupancy and business licensing schemes requiring inquiry into individuals’ immigration status and providing penalties for non-compliance. On July 6, 2010, the federal government made good on its promise to challenge S.B. 1070 and filed a lawsuit in the United States District Court for the District of Arizona, seeking “to declare invalid and preliminarily and permanently enjoin the enforcement of S.B. 1070.” The federal government claimed S.B. 1070 is “preempted by federal law and therefore violates the Supremacy Clause of the United States Constitution.” The United States specifically argued facial challenges to six of S.B. 1070’s provisions. District Court Judge Susan R. Bolton granted in part the United States’ motion for preliminary injunction and enjoined enforcement of S.B. 1070 sections 2(B), 3, 5(C), and 6. Arizona appealed the district court’s ruling, and the Ninth Circuit affirmed. The United States Supreme Court granted Arizona’s petition for certiorari on December 12, 2011, and heard oral arguments on April 25, 2012. Similarly, opponents of the Fremont, Nebraska Ordinance filed suit in the United States District Court for the District of Nebraska on July 21, 2010, challenging the Ordinance’s constitutionality and seeking to enjoin its enforcement. The City of Fremont then resolved to suspend implementation and enforcement of the ordinance pending the resolution of the litigation. On February 20, 2012, Chief Judge of the United States District Court for the District of Nebraska, Laurie Smith Camp, entered a Memorandum and Order on cross motions for summary judgment. The court granted in part the plaintiffs’ motions for summary judgment and permanently enjoined enforcement of section 1, Parts 2, 3.L, and 4.D of the Ordinance. The City of Fremont filed its notice to appeal on March 21, 2012. This Note analyzes the Ninth Circuit’s decision in United States v. Arizona, as well as the United States District Court for the District of Nebraska’s decision in Keller v. City of Fremont. It will first discuss the background of the cases, including an overview of the general preemption standards the applied by the Arizona court, an overview of Supreme Court preemption decisions in the immigration context, and a summary of the United States v. Arizona and Keller v. City of Fremont decisions. The Note will then analyze the Arizona decision, concluding the Arizona court correctly upheld the district court’s injunction of S.B. 1070. However, this Note will argue the Arizona court’s reasoning was flawed because general preemption standards are an inadequate analytical tool for determining the constitutionality of state laws attempting to regulate immigration. Rather, S.B. 1070 is unconstitutional because the Constitution gives the federal government exclusive authority to regulate immigration and the enjoined sections of S.B. 1070 exceed the authority Congress has delegated to states to regulate immigration. Next, the Note will analyze the Keller decision in light of the Note’s analysis of the Arizona decision, concluding the Keller court correctly enjoined portions of the Ordinance. Finally, this Note will conclude by offering insights into the implications of the Arizona and Keller decisions.

Civilians on the Battlefield: By Using U.S. Civilians in the War on Terror, Is the Pot Calling the Kettle Black?

Joshua P. Nauman — Fri, 08 Mar 2013 10:47:02 PST

Since 9/11, America has been engaged in the so-called War on Terror. While some in academia debate whether the conflict against al- Qaeda and associated groups is in fact a “war,” the fact remains that the United States has been and continues to be actively involved in combat or combat-like activities around the world aimed at stopping or minimizing the ability of terrorists to attack the United States or its allies. In many, if not most, instances of the United States’ application of combat power, civilians are present and actively involved in the process. At the same time, the United States continues to grapple with the question of the legal status of our enemy and the legal justification for our use of force, including questions about who applies the force, where, and under what circumstances. A full analysis of the legal bases for the use of force in the War on Terror is beyond the scope of this Article. Instead, this Article will describe the modern usage of civilians by the United States in its prosecution of the War on Terror and will seek to analyze the actors’ status in terms of the Law of Armed Conflict (LOAC), including the implications for U.S. policy regarding the targeting and capture and trial of members and supporters of al-Qaeda. Part II will describe the modern trend of using civilians to employ armed force, including the use of CIA operatives to employ UAV-launched missiles to engage terrorists. Part III will discuss and apply the various legal principles found in the LOAC to the facts as described. Part IV will then analyze and discuss the implications of U.S. policy and action and will describe various alternative proposals that may help clarify the legal issues at stake. By using civilians not only to support combat troops on the battlefield, but also to directly engage the enemy by way of covert activities, such as drone strikes, the United States runs the risk of weakening the firm LOAC barrier between combatant and civilian that seeks to protect civilians from harm. Such use of civilians also runs the risk of undermining the United States’ credibility when characterizing the illegality of the actions of our terrorist enemy. This Article will seek to address two key aspects of this problem: first, whether the use of civilians by the United States violates the LOAC, and second, whether such use undermines the legal theory upon which the United States bases its targeting and prosecution of al-Qaeda and associated terrorists. This Article will conclude that U.S. civilian actions are not per se LOAC violations (“war crimes”), but will further conclude that, based on the types of activities undertaken by civilians, and based on the current Military Commissions Act (MCA)-based prosecutions of terrorists, the use of some U.S. civilians on or in support of the battlefield undermines the U.S. position vis-` a-vis terrorists.

Punishing Temporary Drug-Induced Insanity: An Analysis of State v. Hotz, 281 Neb. 260, 795 N.W.2d 645 (2011)

Mark A. Grimes — Fri, 08 Mar 2013 10:47:02 PST

On a cold December afternoon, two roommates—Joseph Hotz and Kenneth Pfeiffer—consumed psilocybin mushrooms. Two hours later, Pfeiffer was dead by Hotz’s hands. The intervening events were more bizarre and horrific than any after-school special. By stabbing his roommate to death in the midst of a drug-induced paranoia, Hotz did the unthinkable while he was unable to think. Defenses that palliate a defendant’s criminal liability because of intoxication are “[f]requently reviled” and “ever-controversial.” State v. Hotz raises the difficult question of whether a criminal intent formed in the midst of temporary drug-induced insanity is one deserving of punishment. The answer depends on whether the criminal law is viewed through the prism of retributivism or utilitarianism. An act committed in the midst of insanity, whatever its cause, is not as culpable as an act committed while sane. However, excusing an offender by reason of temporary drug-induced insanity fails to protect the public from a potentially dangerous individual. In extending to other drugs its prior case law denying the insanity defense to those temporarily insane due to the effects of alcohol, the Nebraska Supreme Court failed to relate its decision to the conflicting rationales of punishment. By treating Hotz’s criminal act the same as any other, the court perhaps worked an injustice on a less than fully culpable offender. Surprisingly, the court suggested that if only Hotz had severely abused drugs over a prolonged period of time—instead of experimenting with drugs recreationally—he may well have been excused of criminal liability under the settled-insanity doctrine. This Note begins by briefly outlining the defenses of insanity and voluntary intoxication, both in Nebraska and beyond. Next, this Note provides an outline of the status of both temporary and settled druginduced insanity, both in general and in Nebraska. Following the overview of the relevant criminal law, the facts and holdings of State v. Hotz will be recounted. This Note’s analysis starts by tracing the different strands of the settled-insanity doctrine and the justifications for its existence. Ultimately, this Note concludes that the settled-insanity doctrine, as contemplated by the Supreme Court of Nebraska and expounded elsewhere, is unsound on retributive grounds. Next, this Note discusses how the competing aims of retributivism and utilitarianism, particularly incapacitation, are set in conflict by temporary drug-induced insanity. Finally, this Note concludes that the best way for the law to address offenders like Hotz is through an offense of reckless or negligent intoxication. Culpability, and therefore criminal liability, should be based on the offender’s decision to become intoxicated and not the criminal act committed in the midst of temporary drug-induced insanity.

Clarity and Clarification: Grable Federal Questions in the Eyes of Their Beholders

Elizabeth Y. McCuskey — Fri, 08 Mar 2013 10:47:01 PST

In practice, the word “clarity” seems to work much like the word “classy”—if you have to say it, it probably is not true, at least for federal- question jurisdiction. The Supreme Court’s 2005 opinion in Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing stands as a recent example. In Grable, the unanimous Court endeavored to synthesize the numerous doctrines governing jurisdiction over state-law claims raising federal questions (or “embedded” federal questions), and to resolve a circuit split over whether a federal private right of action must accompany the alleged embedded federal questions. The Court decided that jurisdiction does not, in fact, require an underlying federal right of action, but that a right of action is relevant to determinations of “substantiality” and federalism. Grable thus represents the rejection of a bright-line jurisdictional rule in favor of a nuanced, discretionary one, making clear that the jurisdictional waters should remain murky. Grable’s rejection of a bright-line jurisdictional rule raises broader questions about clarity’s role in federal-question jurisdiction doctrine and whether clarity in theory translates into clarity in practice. How have district courts reacted to the Supreme Court’s clarification of doctrine and choice of a flexible rule? Has the clarification offered litigants a clearer picture for predicting jurisdiction? This Article takes an initial step toward answering those questions by first arguing the clarity debate should focus on how jurisdictional rules appear in the eyes of their beholders and by then examining what Grable federal-question jurisdiction looks like from that perspective— as applied in federal court precedents. Part II questions the rationales for jurisdictional clarity and traces the gradual distillation of rules for removal jurisdiction over embedded federal-questions, detailing how Grable purported to “clarify” the proper interpretation of Merrell Dow Pharmaceuticals Inc. v. Thompson and state a unified jurisdictional rule. Using Grable as an example, the Article then turns to an empirical study on the implementation of Grable’s “clarified” rule. The study captures a snapshot of how federal district and appellate courts have reacted to the Grable Court’s attempted clarification and choice of a nuanced rule over a bright-line one. Part III presents that study, examining a sample of decisions before and after Grable. The study identifies a mass of district court precedent “submerged” on court dockets, underscoring the possibility that conventional research offers an unrepresentative sample of precedent. Part III then uses those submerged precedents to trace trends in the rates of remand and reversal in the years before and after the Supreme Court announced Grable, illustrating the potential influence of clarifying opinions. Part IV builds on these theoretical discussions and empirical observations to describe obstacles currently diverting clarification and to suggest some modest steps that litigants, scholars, courts, and Congress might take to improve the availability of clarifying precedents and thereby enhance predictability.

The Decline of the Patent Registration Exam

Christi Guerrini — Fri, 08 Mar 2013 10:47:00 PST

This Article focuses on the PTO’s management of the patent registration exam instead of one of the agency’s other non-examining responsibilities for three reasons. First, as already mentioned, a critical analysis of the exam has not yet been conducted and is overdue. Second, because the PTO’s exam-related responsibilities are well defined and relatively narrow, the quality of the PTO’s execution of them can be examined in some detail. Finally, the subject presents a unique opportunity to gather and study a set of primary sources that to my knowledge has not yet been subjected to any kind of scholarly analysis: the exams themselves. Thus, in researching this Article, I collected eighty-one registration exams administered over the course of forty-nine non-consecutive years, with each full decade represented by at least five years’ worth of exams. Copies of many of these exams were obtained in response to Freedom of Information Act (FOIA) requests to the PTO. Because these documents are not otherwise easily accessed, they will be published in connection with this Article on a webpage hosted by the University of Houston Law Center’s Institute for Intellectual Property and Information Law. It should be noted that passage of a written exam is only one requirement that must be satisfied to become a registered patent prosecutor. The other major requirement is proof of technical competency in the form of education or training in a recognized scientific or engineering discipline. This Article is limited to a consideration of the exam requirement, the technical requirement having already been analyzed by other scholars. Nevertheless, the two requirements necessarily overlap since a patent’s validity and strength can be diminished by the drafter’s technical incompetence even where the drafter’s legal competence is not an issue. Part II of this Article describes the historical circumstances that led to the adoption of the exam requirement. Part III then describes the evolution of the exam from its first administration in 1934 and continuing to the present day. The story these exams tell is that the patent registration exam was the subject of continual tinkering by the Patent Office, with changes made at least every decade and sometimes every year. Notwithstanding these frequent adjustments, some patterns emerge. Specifically, for the first few decades of its history, the Patent Office endeavored to make the exam more rigorous and comprehensive. But as the twentieth century came to an end, practical considerations stemming from a shortage of funds and labor took precedence over quality when the PTO introduced changes to the exam that have had the effect of impairing its quality. I describe these failures in terms of modern psychometric standards that apply to professional licensure exams and conclude that the U.S. patent registration exam is today an invalid, unreliable, and unfair assessment of readiness to practice. Part IV describes the consequences of the exam’s failures, which include wasting the agency’s and examinees’ valuable time and resources and undermining confidence in the PTO’s institutional legitimacy. Finally, Part V concludes that the exam likely has continued relevance and so is worthy of efforts to improve it. Among other things, I propose that the PTO outsource most of its exam-related responsibilities to an independent testing expert and enforce copyrights that consequently would attach to test forms, questions, and answers. These suggestions for change should not be too difficult to implement and would almost certainly improve the quality of the exam.

Legislative Enactment of Standard Forms

John Gradwohl — Fri, 08 Mar 2013 10:46:59 PST

Consideration of legislative enactment of statutory forms requires a comparative analysis of current policies of consumerism with current policies underlying prohibitions on the unauthorized practice of law. In reality, that comparison is disproportionately in the hands of lawyers rather than neutrals or public consumers. Consumerism of individual lawyers and bar associations may be offset by the business side of lawyering, specious personal opinions about the unauthorized practice of law without reference to the actual rules regulating it, fears of uncontrollable practice of law by nonlawyers—especially nonlawyers armed with electronic legal information, influence of private clients of lawyers and lobbyists with competing interests, and lawyers serving as part-time legislators who instinctively prioritize the historical-traditional roles of lawyers. Statutory forms are important in implementing the provisions and policies of the basic statute. No other form, however professionally prepared, can bestow the same validation as a legislative statement that “a [document] in substantially the following form shall be sufficient [to invoke the provisions of this Act].” That form will produce the most extensive standardization of practice relating to the subject. A statutory form can serve as a guide to understanding the substantive provisions of the statutes as well as a means of insuring that the provisions are properly given effect. Statutory forms provide an opportunity for legislatures to enact reliable, “understandable and consumer friendly” forms. Otherwise, a variety of forms, some more complex, confusing, and costly, dealing with the same statutes, are likely to be used. The added costs will be borne by both consumers and by the legal system called upon to resolve unclear situations. Subsequent legislation affecting a statutory form can contemporaneously be amended into the statutory form and maintain the greatest currency for the form. The same professional focused attention of proponents and legislatures should be given to statutory form provisions in proposed enactments as to all major provisions at issue. A study of the travails of statutory form provisions of the Uniform Real Property Transfer on Death Act in the Nebraska (non-partisan Unicameral) Legislature illustrates how these competing policies can favor lawyers at the expense of public consumers. The Uniform Act is intended to be an “asset specific will substitute” for non-probate transfers of real property effective at death. It contains an “understandable and consumer friendly” optional statutory form quit claim deed which, unfortunately, is supported by relatively weak commentary in the official explanatory text. After consideration by groups within the Nebraska State Bar Association, the legislation, including the statutory form, was approved by the Bar Association, with a number of modifications of the official text of the Uniform Act. It was introduced in that form in the Nebraska Legislature by a lawyer-legislator at the request of the Bar Association. The statutory form provision was quietly stricken by the principal introducer on the morning of the public hearing before the Judiciary Committee at the request of a private client of the Bar Association’s lobbyists. It was stated that the Bar Association would provide a transfer of real property on death deed form, apparently without disclosure that Bar Association real estate conveyance forms are available to its members for a fee and are not directly available to the general public. It amounted to a stealth attack by lawyers during the legislative process. The Bar Association had previously studied and supported the statutory form provisions. There was no public discussion of the reasons for striking the statutory form. Subsequently, the official position of the Bar Association was changed from support to opposition of the statutory form. The interests of nonlawyer public consumers were not separately represented. The term “unauthorized practice of law” was not expressly relied upon or discussed openly but was always present in the background. Although the statutory form had been stripped from the bill by the time it reached the legislative floor, the legislation suffered further pro-lawyer, potentially anti-consumer amendments prior to enactment. Nebraska now has real property transfer on death legislation which was designed initially to be more simple and consumer-friendly than prior law. The statutes enacted turned out to be more complicated and unfriendly than the rules for other deeds of real property, self-proved wills, and even for executing an “ordinary” will. Nevertheless, despite substantial deviations from the official text of the Uniform Act, the policies and interests of consumerism would have been best served by a statutory form incorporating the legislation as enacted. This analysis examines why the objectives of the statutory transfer of real property on death deed form fared so poorly in the legislative arena. Each of the relevant groups involved bears some of the responsibility, from the initial preparation and presentation of the statutory form and commentary in the Uniform Act, to proponents of the legislation in Nebraska, to loosely drawn, ambiguous rules on the unauthorized practice of law, to the Judiciary Committee’s legislative study committee examining and reporting on each provision of the Act, to the lobbyists for the Bar Association and other private clients, and to individual members of the Legislature.

Volume 91, Issue 2 (2012) Masthead & Table of Contents

Fri, 08 Mar 2013 10:46:58 PST

NEBRASKA LAW REVIEW EXECUTIVE BOARD, MEMBERS, CANDIDATE MEMBERS, ASSISTANT, & FACULTY ADVISOR

UNIVERSITY OF NEBRASKA COLLEGE OF LAW FACULTY

TABLE OF CONTENTS

Grounding the Short Circuit: The Need for Supreme Court Intervention in Scienter Pleading Requirements for Private Securities Fraud Cases After the Second Circuit’s Decision in ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87 (2d Cir. 2007)

Joe Ehrich — Fri, 08 Mar 2013 10:17:16 PST

The Second Circuit, in ATSI, disregarded the pleading and review instructions the Supreme Court established in Tellabs by stating that plaintiffs may plead a strong inference of scienter using only allegations of motive and opportunity or conscious misbehavior or recklessness. This decision has allowed plaintiffs to plead scienter using only such individual allegations; encouraged courts within the Second Circuit to conduct abbreviated reviews of complaints at the dismissal stage; undermined the Court’s intent for a heightened, uniform scienter pleading standard capable of reducing frivolous litigation and allowing the advancement of meritorious claims; and contributed to the renewal of a wide circuit split over whether motive and opportunity allegations are sufficient to plead scienter. In sharp contrast to the divergent policies and practices of the Second Circuit, the Third Circuit adopted the full Tellabs provisions. It therefore utilizes the scienter pleading standard that the Supreme Court intended. Given the serious consequences of this split, the Second Circuit standard merits further discussion. This Note begins by discussing the Private Securities Litigation Reform Act (PSLRA), which established the pleading requirements for private securities fraud claims. Part II details the post-PSLRA circuit split over motive and opportunity allegations, and the pleading provisions the Supreme Court established in Tellabs. Part III describes the pleading prescriptions created by the Second Circuit in ATSI. Part IV discusses how the ATSI standard diverges from Tellabs by allowing plaintiffs to plead scienter through individual allegations, which has led to only partial application of the Tellabs dismissal review process in the Second Circuit and has undermined the Supreme Court’s intent for a heightened, uniform scienter pleading standard capable of reducing frivolous claims. This Part also details how ATSI contributed to the post-Tellabs circuit split over motive and opportunity allegations, and argues that the Supreme Court must rectify this untenable situation by fortifying the Tellabs review test. If the Court does not, plaintiffs who sue in the Second Circuit, as the Doe shareholders may, will continue to receive more favorable treatment at the pleading stage and have a greater opportunity to receive undeserved settlements from innocent defendants such as the Doe CFO than those who sue in the Third Circuit.

Federal Tax Liens and the Unrecorded Divorce Decree

J. David Beasley — Fri, 08 Mar 2013 10:17:13 PST

The following cases demonstrate the need for standardized treatment of the IRS in relation to a state’s recording requirements, especially when dealing with an unrecorded divorce decree. While state law defines what interest a taxpayer retains after such conveyance, this Note suggests that future courts should adopt the majority approach when determining what interest the IRS acquires after issuance of a § 6321 tax lien on a taxpayer’s real property. This Note begins, in Part II, by discussing the major cases in the circuit courts that have led to this dispute, along with the recent IRS General Counsel Memorandum which has reignited the conflict. Then in section III.A, this Note demonstrates that a § 6321 tax lien should only attach to the interests of the taxpayer and not to the interests of the taxpayer’s creditors. In section III.B, this Note analyzes the application and purpose of state recording acts when integrated with a federal tax lien. Next, in section III.C, this Note argues against a court’s treatment of the IRS as a creditor without notice. That section further discusses a possible undeveloped argument that a docketed divorce decree dividing interest in property should qualify as constructive or inquiry notice upon the IRS when a tax lien arises. The Note concludes, in section III.D, with suggestions of judicial and legislative solutions to standardize the treatment of the IRS in tax lien proceedings with regards to conveyances contained in unrecorded divorce decrees.

Disposable Personal Goodwill, Frosty the Snowman, and Martin Ice Cream All Melt Away in the Bright Sunlight of Analysis

Bret Wells et al. — Fri, 08 Mar 2013 10:17:11 PST

The current rage in dispositional tax planning for closely-held C corporations is to bifurcate the sale transaction into two components comprising: (a) a sale by (i) the target C corporation’s shareholders of their target C corporation stock or (ii) the target C corporation of its assets; and (b) a sale by some or all of the target C corporation’s shareholders of “personal goodwill” associated with the business conducted by the target C corporation. The documented purchase price paid for the first component of the transaction (either the stock of the C corporation or the assets of the C corporation) is based on a fair market value determination that excludes consideration of the personal goodwill component of the transaction. If successful, this tax planning technique allows the selling shareholders to report only shareholderlevel capital gain on the personal goodwill component of the transaction and allows the buyer to claim that this portion of the purchase price is allocable to an acquired intangible, i.e., goodwill, that is amortizable over fifteen years under § 197. More specifically, from the selling shareholders’ perspective, if the first component of the transaction involves a sale of the target C corporation’s assets, the portion of the purchase price attributable to the personal goodwill component of the transaction does not bear the burden of a corporate level of taxation. From the buyer’s perspective, if the first component of the transaction involves a purchase of the target C corporation’s stock, the portion of the purchase price attributable to the personal goodwill component of the transaction is not capitalized into the stock. This planning is premised on the position that certain goodwill associated with the target C corporation’s business can be, and is in fact, owned for tax purposes, by one or more shareholders. If all goodwill associated with the target C corporation’s business activities were in fact owned for tax purposes by the target C corporation, then the personal goodwill component of the transaction is properly viewed as a sale by the target C corporation of such goodwill creating a corporatelevel gain, followed by a distribution from the target C corporation to the shareholders, which in turn creates a shareholder-level gain. If, however, the personal goodwill can be, and in fact is, owned by the selling shareholders and can be, and in fact is, sold by the selling shareholders to the buyer for tax purposes, then its disposition is not subject to corporate-level taxation. Although this planning has garnered much attention recently and could provide significant tax benefits if effective, we believe it deserves further scrutiny before being accepted as an appropriate component of dispositional tax planning for closely-held businesses. This planning technique also highlights the continuing horizontal equity problems associated with the current tax law’s treatment of closely-held businesses. In Part II of this article, we discuss the place that this tax planning technique occupies within a historical context. In Part III, we set forth a substantive discussion of the issues raised by the technique. In Part IV, we discuss the tax policy implications that are raised by the existing application of the corporate income tax regime. Finally, in Part V, we discuss some final thoughts about the implications of the analysis contained in this paper.

Preserving Preservation Easements?: Preservation Easements in an Uncertain Regulatory Future

Jess R. Phelps — Fri, 08 Mar 2013 10:17:10 PST

Preservation easements as currently constituted are under severe threat. Given these challenges, this Article has two objectives. First, this Article will explore ways that easement-holding organizations can increase the public benefit they provide through their efforts to both raise public awareness of these benefits and to reinforce the value provided by the federal tax incentives. Second, this Article will move beyond the tax incentives and detail ways that easement-holding organizations can reduce their reliance on this mechanism—with an eye to further expansion of the role that easements can play within the preservation movement. To this end, this Article is organized into three primary parts. Part II will provide background information on easements, including the development of easements as a preservation tool, how easements are negotiated with individual donors, as well as a discussion of the role tax incentives play in facilitating easement donations. Part III will provide an overview of the recent legal developments in this area, discussing both IRS enforcement initiatives and their impact on the utilization of this tool. Finally, Part IV of this Article will discuss a variety of ways in which easement-holding organizations can refocus their efforts to maximize the level of public benefit obtained through easement donations, and also ways to move beyond such heavy reliance on these tax incentives. Ultimately, if easement-holding organizations are able to move beyond their current limitations, these groups can ensure not only the future viability of this mechanism but also significantly expand the already important role that easements play in protecting our nation’s architectural heritage and historical memory.

Watching the Hen House: Judicial Rulemaking and Judicial Review

Carrie Leonetti — Fri, 08 Mar 2013 10:17:07 PST

The thesis of this Article is a simple one: Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction. Although this Article focuses on the concerns arising from judicial review of judicial rulemaking, it includes some observations as to why, as a matter of policy, expansive judicial rulemaking authority itself is concerning. It, therefore, joins the extensive scholarly debate surrounding the relative fairness, competency, and efficiency of the respective branches of government to promulgate procedural rules. Part II describes the increasing prevalence of quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the rules of procedure between and among local districts. Part III outlines the rulemaking authority of the federal courts, which emanates from the REA, the Federal Rules of Criminal and Civil Procedure, the U.S. Constitution, and the “inherent-authority” doctrine. It also traces the major limitations on this power: the prohibition against courts making rules affecting “substantive” matters, the Case and Controversy Clause of Article III, and the notice and comment requirements of the REA and the Due Process Clause. Part IV describes a case study in local judicial rulemaking: courtroom- security rules, which are generally promulgated without an opportunity for public notice and comment. Part V describes the problem(s) that this Article seeks to address: the frequent promulgation of local rules governing subject matters that are arguably beyond the scope of judicial rulemaking authority, which are then reviewed by the very courts that issued them in the first instance, and the claims of actual bias, the appearance of partiality, or both that can result. It argues that it is improper for a judge who participated in promulgating a local rule to sit in judgment over the validity of that rule when it is challenged in a specific case after adoption because the process by which many of these local court rules are issued gives rise to a structural conflict of interest in having any judge of the promulgating district review a challenge to the promulgation and enforcement thereof. It also notes that there is little case law governing who has standing to challenge court rules or the scope or standard of a court’s review of a court-created rule. Part VI concludes that, in enacting arguably substantive local rules, federal courts are exercising powers constitutionally committed to Congress and, in doing so, impeding sufficient independent review of such exercises and creating a diffusion of rulemaking responsibility.

Punitive Juvenile Justice and Public Trials by Jury: Sixth Amendment Applications in a Post-McKeiver World

Martin R. Gardner — Fri, 08 Mar 2013 10:17:05 PST

This Article argues that the continued homage to McKeiver in an era of punitive juvenile justice is the misguided result of judicial inattention to the distinction between punitive and rehabilitative dispositions. In Part II, I clarify this distinction and demonstrate why understanding it is essential to a sound analysis of whether jury determinations and public proceedings are constitutionally required in delinquency adjudications. I show that the concepts of rehabilitation and punishment are distinct and, for purposes of constitutional analysis, mutually exclusive. From this discussion I derive a conceptual framework, which I apply in Part IV to analyze several cases. These conceptual considerations are framed by a sketch of the movement within juvenile justice from a rehabilitative to a punitive model. In Part III, I examine the Supreme Court’s delinquency cases, paying particular attention to McKeiver. I then consider the Court’s public trial and jury trial case law and argue that proceedings must be open to the public when alleged offenders face punishment, and jury trials must be afforded when they face substantial punitive incarceration. I show that, contrary to McKeiver, requiring open jury determinations in delinquency adjudications will not detract from the goals of such proceedings but will actually effectuate them. I conclude Part III by arguing that alleged delinquents, unlike adult defendants in the criminal system, are constitutionally entitled to choose a jury or bench trial and an open or closed proceeding in which their identities are kept confidential. In Part IV, I examine a sample of lower court cases considering whether jury trials are required in the new punitive juvenile justice. I demonstrate that the courts, with very few exceptions, make three kinds of mistakes in assessing jury trial rights in juvenile cases. Some courts simply beg the constitutional question by assuming without analysis that a given disposition is nonpunitive. Others apply overly broad definitions of rehabilitation, thereby conflating the concept of punishment into that of rehabilitation. A third group makes the opposite mistake by applying the “impact theory,” an overly broad definition of punishment, which conflates the concept of rehabilitation and other coercive sanctions into that of punishment. After illustrating these mistakes with examples from the case law, I contrast the faulty decisions with a rare example of a soundly analyzed case as a recommended model for clarification of the muddled situation created by the lower courts. Finally, in Part V, I briefly address the argument of some leading commentators that the complete criminalization of juvenile courts— by the recognition of public trial and jury trial rights—makes the existence of a juvenile court system separate from the criminal justice system unnecessary and unwise. Rather than merging it into the criminal system, I argue to the contrary that the emergence of punitive juvenile justice with full procedural protections actually provides a new rationale for retaining a separate juvenile court system. I take no position on whether juvenile courts should punish delinquents, but focus only on the Sixth Amendment implications that follow when punishment occurs.

In Memoriam: Professor Richard S. Harnsberger

Susan Poser et al. — Fri, 08 Mar 2013 10:17:01 PST

This volume of the NEBRASKA LAW REVIEW is dedicated to the memory of Professor Richard S. Harnsberger, who passed away on March 29, 2012. Professor Harnsberger was a native of Ashland, Nebraska and a 1949 graduate of the College of Law. A decorated officer in World War II who fought in the European theater, including Normandy, he attained the rank of Captain and earned five bronze stars. Professor Harnsberger joined the faculty of the College of Law in 1956 and took emeritus status in 1992. While at the Law College, he held the Cline Williams–Flavel A. Wright Professorship. He taught Constitutional Law, Water Law, Legal Profession, Oil and Gas, and Civil Procedure. He was a prolific scholar whose work gained national attention. In 1999, he was honored with the Groundwater Foundation’s 1999 Maurice Kremer Groundwater Achievement Award. The Nebraska State Bar Foundation presented him with its 2001 Outstanding Legal Educator Award. The Lawrence Berger and Richard S. Harnsberger Faculty Wing of the College of Law was dedicated in 2003. After taking emeritus status in 1992, he continued to teach or co-teach classes and seminars. Professor Harnsberger personified what we all hoped and wished the law school could be, and what we on the faculty could be as teachers and scholars. Dick was incredibly smart and incredibly kind. He had a wicked sense of humor, and was admired, nay, adored, by generations of students, and by generations of colleagues.

Volume 91, Issue 1: Masthead and Table of Contents

Fri, 08 Mar 2013 10:16:57 PST

NEBRASKA LAW REVIEW EXECUTIVE BOARD
MEMBERS, CANDIDATE MEMBERS, ASSISTANT, & FACULTY ADVISOR
UNIVERSITY OF NEBRASKA COLLEGE OF LAW FACULTY
TABLE OF CONTENTS

Clarity and Clarification: Grable Federal Questions in the Eyes of Their Beholders

Elizabeth Y. McCuskey — Wed, 06 Mar 2013 14:11:45 PST

Jurists and commentators have repeated for centuries the refrain that jurisdictional rules should be clear. Behind this mantra is the idea that clearly designed jurisdictional rules should enable trial courts to more easily apply the law and therefore allow litigants to more accurately predict how trial courts will rule. The mantra’s ultimate goal is efficiency—that trial courts not labor too long on jurisdiction and most importantly, that litigants can accurately predict the correct forum and choose to spend their money litigating the merits of their claim, rather than where it will be heard. Jurisdictional clarity largely is devoted to sharpening litigants’ vision of the proper jurisdiction. But clarity is not costless. Bright-line jurisdictional rules have the potential to remand the desirable cases with the undesirable ones. In federal-question jurisdiction rules, for example, clarity is somewhat overvalued in theory and unachieved in practice. In theory, the constitutional and statutory bases for federal-question jurisdiction prescribe simply and broadly that jurisdiction exists over “all” actions “arising under” federal law. There exist compelling reasons to have federal courts adjudicate essential federal questions, even if those questions happen to arise through state-law claims. Therefore, many theoretically “clear” rules, like Justice Holmes’s proposal that only federal claims “arise under” federal law, would improperly trim the intent of “arising under” jurisdiction and contravene the supposed benefits of the federal forum. In theory, then, important substance and systemic benefits may be unnecessarily sacrificed on the altar of clarity. In practice, the word “clarity” seems to work much like the word “classy”—if you have to say it, it probably is not true, at least for federal- question jurisdiction. The Supreme Court’s 2005 opinion in Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing stands as a recent example. In Grable, the unanimous Court endeavored to synthesize the numerous doctrines governing jurisdiction over state-law claims raising federal questions (or “embedded” federal questions), and to resolve a circuit split over whether a federal private right of action must accompany the alleged embedded federal questions. The Court decided that jurisdiction did not, in fact, require an underlying federal right of action, but that a right of action was relevant to determinations of “substantiality” and federalism. Grable thus represents the rejection of a bright-line jurisdictional rule in favor of a nuanced, discretionary one, making clear that the jurisdictional waters should remain murky. Grable’s rejection of a bright-line jurisdictional rule raises broader questions about clarity’s role on federal-question jurisdiction doctrine and whether clarity in theory translates into practice. How have district courts reacted to the Supreme Court’s clarification of doctrine and choice of a flexible rule? Has the clarification offered litigants a clearer picture for predicting jurisdiction? This Article takes an initial step toward answering those questions by first arguing that the clarity debate should focus on how jurisdictional rules appear in the eyes of their beholders and by then examining what Grable federal-question jurisdiction looks like from that perspective—as applied in federal court precedents. Part II questions the rationales for jurisdictional clarity and traces the gradual distillation of rules for removal jurisdiction over embedded federal-questions, detailing how Grable purported to “clarify” the proper interpretation of Merrell Dow Pharmaceuticals Inc. v. Thompson and state a unified jurisdictional rule. Using Grable as an example, the Article then turns in Part II to an empirical study on the implementation of Grable’s new “clarified” rule. The study captures a snapshot of how federal district and appellate courts have reacted to Grable’s attempted clarification and choice of a nuanced rule over a bright-line one. Part III presents that study examining a sample of decisions before and after Grable. The study identifies a mass of district court precedent “submerged” on court dockets and uses those submerged precedents to trace trends in the rates of remand and reversal in the years before and after the Supreme Court announced Grable. Part IV builds on these theoretical discussions and empirical observations to describe obstacles currently diverting clarification and to suggest some modest steps that litigants, scholars, courts, and Congress might take to improve the availability of clarifying precedents, and thereby enhance predictability.

The New Definition of “Because of ”: The Supreme Court Distinguishes Identical Causation Language in Title VII and the ADEA in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009)

Nicholas J. Thielen — Wed, 06 Mar 2013 14:11:44 PST

Both Title VII of the Civil Rights Act (CRA) of 1964 and the Age Discrimination in Employment Act of 1967 (ADEA) prohibit employers from making an adverse employment decision “because of” certain improper criteria. The Supreme Court’s opinion in Gross v. FBL Financial Services, Inc. explored the plain meaning of “because of” to determine the threshold for causation required under the ADEA. Curiously, the Gross Court came to a different conclusion than the Justices who engaged in the same exploration of “because of” under Title VII in Price Waterhouse v. Hopkins. The Court’s underdeveloped plain meaning argument and failure to elevate its choice of statutory interpretation over the obvious and compelling alternatives call into question whether these portions of the opinion were determinative of the holding. The Gross Court’s skepticism of the motivating factor standard and mixed-motive burden-shifting scheme that developed under the Title VII analysis, though not as thoroughly explored in the Court’s opinion, provides a more intelligible rationale for the outcome in Gross. In maintaining that this was an exercise in scrutinizing the language of the statute instead of explaining the persuasive force of the practical considerations, the Court created confusion over whether the Price Waterhouse analysis might still apply to other statutes with “because of” or other similar causation language. Some of the confusion in the Court’s opinion also stems from the conflation of causation standards with burden schemes. While it makes sense that Gross addressed both causation and burdens, given that Price Waterhouse created the burden-shifting scheme in part to balance the plaintiff’s lower, motivating-factor causation burden, this Note will attempt to separate the ideas in an effort to show how the respective opinions grappled with the proper allocation of the burden of persuasion in discrimination cases, the difficult problem of dissecting the motivations for an employment decision, and the heightened evidentiary requirement, if any, under a burden-shifting scheme. After detailing the complex history of mixed-motive burden-shifting in discrimination cases that led to this particular brand of ambiguity over congressional intent and sampling the variety produced when lower courts have applied Gross to other statutes, this Note will make the case that the majority’s decision was driven by an understanding of the practical difficulties that mixed-motive burden-shifting has created, a skepticism about how well the doctrine accomplishes justice, and a legal conservatism that favors traditional causation and burden schemes. Further, the Note will argue that Gross is not, as the Court’s reasoning would suggest, about the level of causation burden that must be satisfied but rather about who bears that burden. Though Congress has codified the mixed-motive burden-shifting scheme in the language of Title VII through post-Price Waterhouse amendments, Gross reverts to the allocation that speaks to simplicity and judicial restraint by applying the traditional default causation standard: that the plaintiff bears the burden of persuasion by a preponderance of the evidence. Finally, the Note will make the case that while Gross appears to cast doubt on all Title VII burden-shifting precedents, the Court’s attention to practical applications and inclination toward traditional burden structures might be compatible with the shifting burden of production under McDonnell Douglas Corp. v. Green, which provides a sufficient guard against the inequities of asymmetric information, maintains the least restrictive burden on employers, provides for the most intuitive jury instructions, and maintains the traditional burden of persuasion.

Of Form and Function: Lockean Political Philosophy and Mass Tort

Jeffrey C. Sindelar Jr. — Wed, 06 Mar 2013 14:11:43 PST

The efficacy of tort law in the United States has been widely criticized by academics and judges. In the mass tort context, a great deal of criticism has focused on the inefficiencies created by individual claim autonomy—the notion that every person is entitled to his or her own day in court. Attempts to individually adjudicate mass tort cases, such as asbestos and other mass-exposure cases, have clogged court dockets and substantially burdened the civil justice system. Some scholars argue that the process of individually litigating mass tort claims and allowance of opt-out rights in class actions lead to suboptimal investment by plaintiffs. Further, the concentrated interests of mass tort defendants—who may expect numerous similar suits—endow them with an “asymmetric scale advantage” to invest in litigation. On the other hand, defendants are forced to re-litigate issues across multiple jurisdictions, risking inconsistent judgments, facing prolonged uncertainty, and incurring ever-growing legal expenses. Similar and overlapping issues, such as design defect and failure to warn, have motivated courts to attempt aggregation of mass tort cases into class actions. Yet these attempts have been frustrated by the strong presumption in American jurisprudence that every individual has a right to a day in court. In the face of academic criticism and judicial pleas for help, others support individual claim autonomy as a means to preserve the notion of corrective justice. Rather than focus on the efficacy of tort law at serving societal functions, corrective justice proponents often argue tort law is inherently self-justifying, which, of course, begs the question: “Why does tort law exist?” In addressing that question, this Article examines the political philosophy of John Locke and argues that legal formalism is necessary for restraining government and instilling the rule of law but that the particular form of law adopted by a jurisdiction should reflect society’s substantive policy goals. The law’s form should reflect its function. Part II of this Article provides an overview of America’s mass tort debate. Part III proceeds to defend rule-of-law formalism in so far as it serves society’s needs but rejects arguments for retaining certain legal formalities merely for tradition’s sake. Part IV discuses the political philosophy of John Locke and reveals Lockean political philosophy’s implications for the relationship between form and function in the law in general and the mass tort problem in particular.

Health Cover(age)ing

Rebecca L. Rausch — Wed, 06 Mar 2013 14:11:42 PST

Though uneven costs based on an arbitrarily selected physical feature might seem discriminatory, health insurance fat taxes are perfectly legal under federal law. The Americans with Disabilities Act of 1990 (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII) generally do not protect people because of their fatness. The recently enacted Patient Protection and Affordable Care Act of 2010 (ACA) also allows, and encourages, this new regime to continue, under the guise of wellness programs. Ironically, despite the name, these programs do not necessarily measure wellness, nor are they required to do so. The legality of health insurance fat taxes generates another set of questions, namely, why the law functions in this particular way and whether it should function differently. This Article posits that the current functionality reflects a different type of covering, by which society forces itself to make certain of its underlying identities—in this case, anti-fat bias—a little less obvious. While this is not the individualized covering Professor Yoshino originally discussed, this Article attempts to expand upon that conception. As a whole, society avoids admitting that its shortcomings, such as anti-fat bias, exist. Collective society pushes to cover its collective flaws. Specifically, systemic fear of fatness and losing the currency ascribed to thinness allows the law to permit and promote the existence and expansion of this new regime. Health insurance fat taxes exemplify the concept of what will be termed herein collective cover-up. Part II explores fatness and health insurance, focusing on the contrast between the traditional communitarian health care model and health insurance fat taxes. This Part also details various health insurance fat tax programs either implemented or proposed across the country. Part III critiques the science of fatness, manifested through BMI, and the construction of fatness as a disease. Part IV discusses the systemic implications of fatness and draws certain parallels between social treatments of fatness and queerness. These parallels provide a useful basis for applying Professor Yoshino’s covering theory to fatness. Part V examines legal regimes that generally seem as if they might prohibit the anti-fat discrimination of health insurance fat taxes, but do not. Using these legal regimes as a lens, Part V then explores the expansion of covering to the whole of society and the ways in which fatness begets collective cover-up. Finally, Part VI offers some concluding thoughts and questions about how the law might push social norms such that anti-fat discrimination could become less pervasive and public health goals might be better achieved.

When Rummaging Goes Digital: Fourth Amendment Particularity and Stored E-Mail Surveillance

Nicole Friess — Wed, 06 Mar 2013 14:11:41 PST

To date, most of the discussion regarding how the Constitution protects privacy interests in stored e-mail has focused on whether a warrant is required to conduct stored e-mail surveillance and whether probable cause is the appropriate justification standard . Little to no attention has been directed toward how the particularity requirement of the Fourth Amendment applies to searches and seizures of stored e-mail communications. Only Susan Freiwald has argued that procedural particularity should be required in order for government acquisitions of stored e-mails to pass constitutional muster, yet she did not enumerate specific standards of particularity. This Article addresses how the particularity requirement applies to stored email surveillance and sets forth standards to evaluate the particularity of search warrants for stored e-mail communications. This Article proceeds in four parts. Part II explains why and how procedural protections derived from the particularity requirement have been codified by Congress and imposed by the courts in order to limit certain electronic-surveillance techniques. Part III describes how probable cause defines which stored e-mails the government may search and seize and the reason why scholarship has overemphasized probable cause in the context of stored e-mail surveillance. Then described is how current statutory law governing stored e-mail surveillance is in disharmony with the Fourth Amendment, and therefore how it must be amended to require search warrants for stored e-mail surveillance. Part IV proposes concrete standards for determining whether a warrant authorizing a search and seizure of stored e-mail communications adheres to the particularity requirement of the Fourth Amendment. Finally, Part V addresses the practicalities of the proposed particularity standards and responds to several potential objections concerning the implementation of these standards.