The analytic thesis of this article is that the functional analysis suggested in State v. Turner, in which the court insisted on its authority to establish more than the minimum bar admission standards established by the legislature, is the correct way to frame the separation of powers issue—that is, whether the legislature or the judiciary has the ultimate authority to regulate the legal profession. Part I of this article demonstrates that, as a historical matter, Nebraska jurisprudence, until 1936, understood the judiciary's power over the legal profession and the practice of law in the functional sense. Part II focuses on State v. Barlow, In re Integration of the Bar, and Turner. This section demonstrates that the court asserted its ultimate constitutional authority in Barlow and In re Integration to promote its vision of the public interest. In Turner it continued its expansive language but suggested a more functional analysis. Part III recommends a functional method for the future.
Stephen E. Kalish,
The Nebraska Supreme Court, the Practice of Law, and the Regulation of Attorneys,
59 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol59/iss3/2