Nebraska law review最新文献

{"title":"Veto! The Jacksonian Revolution in Constitutional Law","authors":"Gerard N. Magliocca","doi":"10.31228/osf.io/uhwzf","DOIUrl":"https://doi.org/10.31228/osf.io/uhwzf","url":null,"abstract":"78 Nebraska Law Review 205 (1999)","PeriodicalId":82091,"journal":{"name":"Nebraska law review","volume":"78 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2019-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45110012","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The New Negative Rights: Abortion Funding and Constitutional Law after Whole Woman's Health","authors":"M. Ziegler","doi":"10.2139/SSRN.2930054","DOIUrl":"https://doi.org/10.2139/SSRN.2930054","url":null,"abstract":"The Hyde Amendment, a ban on the Medicaid funding of abortion, is once again at the center of the abortion wars. For the most part, critics of the Hyde Amendment argue that it authorizes discrimination against poor women. Using original archival research, this Article show that the amendment has had a far greater impact. \u0000In popular debate, proponents of the Hyde Amendment helped to forge an idea of complicity-based conscience that has recently transformed fights about everything from same-sex marriage to contraceptive access. Constitutionally, the fight for the Hyde Amendment also revolutionized the rights-privilege distinction in constitutional law. In abortion-funding cases, the Court held that there was no constitutional problem with laws that created practical obstacles to abortion access so long as the obstacles themselves were not controlled or created by the state. This approach has resonated outside the context of abortion law. \u0000The Court’s recent decision in Whole Woman’s Health v. Hellerstedt makes a challenge to the Hyde Amendment realistic and compelling. The cases upholding the Hyde Amendment regard as constitutional any burden on a woman’s right to choose that is neither created nor controlled by the government. Whole Woman’s Health explicitly rejected this approach, looking instead at how the formal terms of law interact with forces beyond the government’s control. For this reason, the Article shows that Whole Woman’s Health undermines the core premises of the Hyde Amendment and creates an opening for those seeking to revisit the distinction between negative and positive rights.","PeriodicalId":82091,"journal":{"name":"Nebraska law review","volume":"96 1","pages":"577"},"PeriodicalIF":0.0,"publicationDate":"2017-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44345540","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Insurance Risk Classification in an Era of Genomics: Is a Rational Discrimination Policy Rational?","authors":"Anya E R Prince","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82091,"journal":{"name":"Nebraska law review","volume":"96 3","pages":"624-687"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6934377/pdf/nihms-964690.pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"37499429","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Al Maqaleh and the Diminishing Reach of Habeas Corpus","authors":"R. Abeyratne","doi":"10.2139/SSRN.2715116","DOIUrl":"https://doi.org/10.2139/SSRN.2715116","url":null,"abstract":"In 2008, the U.S. Supreme Court issued a landmark judgment in Boumediene v. Bush that extended the writ of habeas corpus to detainees at Guantanamo Bay. Boumediene set forth a three-factor test to determine if writ jurisdiction extends to detainees abroad: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites of where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. Following Boumediene, the D.C. Circuit has declined to extend the writ to detainees at other U.S.-controlled facilities, including Bagram Air Base in Afghanistan. Al Maqaleh was the most prominent Bagram-related litigation. At issue was whether three non-Afghan detainees, who alleged they were captured outside Afghanistan and extraordinarily rendered to face indefinite detention at Bagram, could avail of writ jurisdiction. Al Maqaleh turned on Boumediene’s three-factor test, which the D.C. Circuit misconstrued in three significant ways. First, it neglected the site of apprehension and construed the site of detention too formalistically, requiring de facto U.S. sovereignty as a precondition for writ jurisdiction. Second, it misread the practical obstacles factor as a limit on justiciability, which improperly imports the Political Question Doctrine into this jurisdictional analysis. Third, it mistakenly dismissed petitioners’ claim that the Executive manipulated the site of detention – by choosing to hold petitioners at Bagram rather than at Guantanamo Bay – to avoid writ jurisdiction. For these reasons, I argue that Al Maqaleh should be overturned. It has unconstitutionally altered Boumediene’s test for the extraterritorial application of habeas corpus by empowering the Executive, not the courts, to determine how far and to whom the writ will reach.","PeriodicalId":82091,"journal":{"name":"Nebraska law review","volume":"95 1","pages":"146"},"PeriodicalIF":0.0,"publicationDate":"2016-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68268830","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rethinking Counterterrorism in the Age of ISIS: Lessons from Sinai","authors":"Sahar F. Aziz","doi":"10.2139/SSRN.2734341","DOIUrl":"https://doi.org/10.2139/SSRN.2734341","url":null,"abstract":"Failing states are havens for terrorism. A toxic combination of social, economic, and political crises attract violent extremist groups to establish bases in these lawless areas. As the groups grow in strength, the violence spreads from the immediate vicinity to the nation, region, and sometimes even other continents. One need only look to the terrorist attacks in New York, London, Madrid, and Paris as proof that terrorists operating out of failing states eventually set their sights on attacking Western capitals. Although the underlying causes of terrorism are often local, the violence is no longer constrained within a particular country or region. Whether originating in Afghanistan, the Northwest Frontier of Pakistan, Somalia, Iraq or Syria, the rise of terrorist groups has become a worldwide problem that threatens the safety of citizens in both the Eastern and Western Hemispheres, albeit in differing degrees. Yet, global counterterrorism strategies focus more on symptoms rather than the underlying social, political, and economic conditions that produce politically-motivated violence. In particular, counterterrorism policies are driven by military and security interests of authoritarian states whose state violence breeds more violence by non-state actors. Western nations often limit their counterterrorism practices to merely preventing violence on their soil. With the advancement of technology, fluidity of borders, and ubiquity of international travel, countries can no longer afford to ignore the deteriorating conditions in failing states where terrorists set up bases. Nor can they limit their interest in failed states to bombing terrorist training camps or pushing terrorists underground. Only when the underlying political, social, and economic local hardships that produce fertile grounds for terrorists to operate are addressed can security improve for all people. Simply put, citizens in the West can no longer wall themselves off from violence inflicted on citizens in the East.Accordingly, this Article argues for a paradigm shift in the preventive goals of global counterterrorism policies that prioritizes human development based on the local needs of failing states. Furthermore, human development should go beyond meeting fundamental needs such as food, shelter, and water to address political reforms demanded by the local population. By failing to confront authoritarianism and its offspring of political repression, the international community misguidedly relies on counterproductive military and security-driven policies. With the rise of violent transnational actors and fluid borders, the international community loses more than it gains by supporting dictators under the auspices of preserving stability. To the contrary, dictatorships breed terrorism as they inculcate a culture of violence and instill fear, suspicion, and aggression among the citizens. In turn, violence becomes the only means to effectuate change in a zero-sum game, winner takes al","PeriodicalId":82091,"journal":{"name":"Nebraska law review","volume":"95 1","pages":"307"},"PeriodicalIF":0.0,"publicationDate":"2016-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2734341","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68279406","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Everything Old Is New Again: Enforcing Tribal Treaty Provisions to Protect Climate Change-Threatened Resources","authors":"Kronk Warner, E. Ann","doi":"10.2139/SSRN.2652954","DOIUrl":"https://doi.org/10.2139/SSRN.2652954","url":null,"abstract":"In an age when vulnerable tribes and Native communities around the country are threatened by the impacts of climate change, advocates seek new and innovative legal tools to provide protection for endangered resources. To date, legal tools such as litigation and adaptation plans have been used with varying levels of success. For the first time, this article considers whether tribal treaties with the United States may prove helpful in protecting threatened resources. Treaties historically played an important role for many tribes, as they have a profound cultural connection and are a powerful expression of tribal sovereignty. Also, when courts find treaties applicable, tribes have generally been successful in protecting the resources at issue. In considering whether such historical documents may be applied in the climate change context, this article begins by looking at the treaty language of specific tribes, which have expressed interest in shielding treaty-protected resources, and also methodologies of interpreting treaties. The article then goes on to consider how such treaty language might be used in a legal claim against the United States, speculating as to uses under both domestic and international law. Ultimately, the article concludes that it may be possible to use treaty language to protect resources threatened by climate change under certain circumstances.","PeriodicalId":82091,"journal":{"name":"Nebraska law review","volume":"94 1","pages":"916"},"PeriodicalIF":0.0,"publicationDate":"2015-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2652954","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68240311","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Proposed Timing Requirements for the Common-Law Motion to Withdraw a Plea: The Creation of a New Procedure in State v. Gonzalez, 285 Neb. 940, 830 N.W. 2d 504 (2013).","authors":"M. A. Wailes","doi":"10.2139/SSRN.2555049","DOIUrl":"https://doi.org/10.2139/SSRN.2555049","url":null,"abstract":"This Note traces the Nebraska Supreme Court’s creation and development of the common law motion to withdraw a plea. In 2013, the court recognized this new procedure which allows defendants to withdraw their guilty or no contest pleas after their conviction has become final. The procedure is available only in extremely limited circumstances and only when (1) the Nebraska Postconviction Act is not, and never was, available to the defendant as a means of asserting the grounds justifying withdrawing the plea, and (2) a constitutional right is at issue. The court has only addressed this procedure three times since it initially created the common-law procedure in State v. Gonzalez, 285 Neb. 940, 830 N.W. 2d 504 (2013) and has not yet clarified when defendants can raise this motion. Because the common-law procedure is intended to be a substitute when the Postconviction Act is not available to the defendant, this author argues that the timing requirements of the Nebraska Postconviction Act should apply to common law motions to withdraw a plea. Specifically, the author argues that defendants should be required to file their motion within one year of: 1) The date the judgment or conviction became final by the conclusion of a direct appeal or the expiration of the time for filing a direct appeal;2) The date on which the factual predicate of the constitutional claim or claims alleged could have been discovered through the exercise of due diligence; or3) The date on which a constitutional claim asserted was initially recognized by the Supreme Court of the United States or the Nebraska Supreme Court, if the newly recognized right has been made applicable retroactively to cases on postconviction collateral review.","PeriodicalId":82091,"journal":{"name":"Nebraska law review","volume":"94 1","pages":"220"},"PeriodicalIF":0.0,"publicationDate":"2015-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68201257","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A First Amendment-Inspired Approach to Heller's 'Schools' and 'Government Buildings'","authors":"J. Pratt","doi":"10.2139/SSRN.2240555","DOIUrl":"https://doi.org/10.2139/SSRN.2240555","url":null,"abstract":"Although the Supreme Court in Heller strongly suggested that the Second Amendment protects a right to armed self-defense outside the home, it carved out an enigmatic exception to this right: the government may prohibit weapons in \"sensitive places such as schools and government buildings.\" This Article focuses on Heller’s enumerated sensitive places — schools and government buildings — and begins with the premise that these terms allow some room for interpretation. By its mention of \"schools,\" did the Supreme Court mean to leave undisturbed gun bans in primary and secondary schools only, or also on university campuses? In its reference to \"government buildings,\" did the Court mean to suggest that the government may act with impunity whenever it bans armed self-defense on its property, or are there some types of public property — particularly national parks and remote lands home to dangerous wildlife — where a combination of low security risks and historical practices limits the government’s authority as property owner? Building on a growing body of scholarship that has looked to the First Amendment as a guidepost for mapping out the boundaries of the post-Heller Second Amendment, this Article demonstrates how the Court's public-forum and student-speech doctrines caution against an expansive reading of Heller’s enumerated sensitive places. The Supreme Court has held that students do not forfeit the First Amendment's core protections when they step onto campus, and it has also suggested that adult college students enjoy broader free speech rights than do students in primary and secondary schools. The Supreme Court also has held that the government's ownership of property does not automatically entail the power to prohibit free speech activities, and on certain types of public property historically open for speech and expression, the public enjoys broad First Amendment rights. Moreover, even in nonpublic forums where the government enjoys broad discretion to curtail speech, it cannot engage in viewpoint discrimination. These First Amendment principles suggest that the Second Amendment's core right to armed self-defense, in some form, might be available to adult students at public universities and to the general public on certain types of public property where armed self-defense historically has been permitted, such as national parks and remote lands that are home to dangerous wildlife.","PeriodicalId":82091,"journal":{"name":"Nebraska law review","volume":"92 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2013-11-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2240555","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68021947","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Private Memorials on Public Space: Roadside Crosses at the Intersection of the Free Speech Clause and the Establishment Clause","authors":"Amanda Reid","doi":"10.2139/SSRN.2278611","DOIUrl":"https://doi.org/10.2139/SSRN.2278611","url":null,"abstract":"The Supreme Court has yet to clarify the consequences for governments that allow private memorial crosses to remain and proliferate along the public roadways. Government speech endorsing religion is prohibited by the Establishment Clause whereas private speech endorsing religion is protected by the Free Speech and Free Exercise Clauses. This Article examines three options available to state policymakers. First, policymakers can prohibit all roadside memorials. While memorial makers have an interesting and cognizable Free Speech argument on the lack of alternative channels for ventilating their message, the Free Speech interests are likely outweighed by traffic safety and aesthetic interests. Thus, in theory a government that decides to ban all roadside memorials likely can do so without Free Speech concerns. But in practice, enforcement of such bans is often lax. Policymakers are coming to recognize that enforcing a complete ban is neither politically expedient nor practical. Second, policymakers can continue to ignore and turn a blind eye to the activity. However, permitting religious icons and symbols to remain and proliferate on public property risks violating the Establishment Clause, since governments do not generally allow messages to remain on public property if the government objects to the message. The tacit approval of the message risks appearing to endorse the message. Third, policymakers can create a limited public forum for the bereaved to express the two-fold message of remembrance of the deceased and caution to other drivers. Such a forum may satisfy the Free Speech interests of the memorial makers, as well as forestall the Establishment Clause concerns about government endorsement of religion. In such instances, the government could allow the bereaved to select a religious symbol, akin to selecting a religious symbol in national cemeteries, and customize the message on the memorial. When the editorial control over the message rests with the bereaved, and the government includes an appropriate disclaimer, it is unlikely a reasonable observer would conclude that the presence of religious symbols and messages on public property would amount to government endorsement of religion. Moreover, allowing a wide range of religious messages and symbols would support an inference of viewpoint and religious neutrality.","PeriodicalId":82091,"journal":{"name":"Nebraska law review","volume":"92 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2013-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68057472","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Bullshit!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause","authors":"Colin Miller","doi":"10.2139/SSRN.2137045","DOIUrl":"https://doi.org/10.2139/SSRN.2137045","url":null,"abstract":"In Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with the Ex Post Facto Clause, including “[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” But, in its opinion in Carmell v. Texas, the Court determined that ordinary rules of evidence do not violate the Clause because they (1) are “evenhanded, in the sense that they may benefit either the State or the defendant in a given case;” and (2) “do not at all subvert the presumption of innocence….” Federal Rules of Evidence 413 and 414 as well as state counterparts, however, are neither evenhanded nor consistent with the presumption of innocence. Instead, these rules can only be used to benefit the prosecution, and they subvert the traditional presumption of innocence maintained by the propensity character evidence proscription. Accordingly, courts across the country have erred in finding that the retroactive application of these rules does not violate the Ex Post Facto Clause.","PeriodicalId":82091,"journal":{"name":"Nebraska law review","volume":"4 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-08-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67938700","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}