Jerome Frank’s Attack on the “Myth” of Legal Certainty
Julius Paul
One of the significant contributions of contemporary American legal realism has been the discussion of the origins, purpose, and efficacy of legal rules. Some writers have been extremely critical of the worship of legal rules and of the feeling by the lay public that rules can provide exactness and certainty in the law. Jerome Frank has been the most noteworthy exponent of this view, particularly in his pioneer book, Law and the Modern Mind, published in 1930.
Frank would be the last person to deny the existence and the utility of legal rules. Yet, his attack on those writers who see only the legal rules and nothing else as law (especially the late Professor Joseph Beale) has led some writers to believe that Frank wanted a legal system that operated on a purely pragmatic basis. Frank fervently denies this accusation and says that men like Gray, Wigmore, and Judge Cuthbert Pound expressed similar doubts about the prediction value of legal rules and precedents.
Full Faith and Credit—Fraud in Procurement of Personal Service—Divorce—Domicile
Floyd A. Sterns
If some future savant should perchance decipher the remains of any law review, he is almost certain to discover an article on full faith and credit, migratory divorce, and sundry allied problems of jurisdiction, domicile, service of process, and res judicata.
This inquiry is but another attempt to state what part of the law in this area may be at the present time with particular reference to a recent Nebraska case, zenker v. zenker, which raises some interesting questions regarding the never, never land of full faith and credit.
If married persons always had a common domicile there would be far less difficulty in determining which court has the power to grant a divorce entitled to recognition in sister states. But since husbands and wives in the United States may secure separate domiciles quite freely, the jurisdictional problem becomes one of great complexity.
Muddying the Water, Clearing the Way . . . for Judicial Review of Clean Water Act Jurisdictional Determinations: Hawkes Co. v. U.S. Army Corps of Engineers, 782 F.3d 994 (8th Cir. 2015)
Taylor Fritsch
I. Introduction
II. Background ... A. The Clean Water Act’s Jurisdictional Uncertainty … B. Recent Regulatory Action ... C. Issues ... D. “Final Agency Action” ... 1. The Bennett Test of Final Agency Action ... 2. Sackett v. EPA Opens the Door ... E. Ripeness
III. Hawkes Co. v. U.S. Army Corps of Engineers ... A. Facts and Administrative History ... B. District Court Decision ... C. Eighth Circuit’s Opinion and Holding ... D. Judge Kelly’s Concurring Opinion
IV. Analysis ... A. Supreme Court Review of Hawkes Co. ... B. Revisiting Hawkes Co. in the Supreme Court ... 1. Sackett Controls ... a. Applying the First Prong of the Bennett Test ... b. Applying the Second Prong of the Bennett Test ... c. Sackett Contemplates Jurisdictional Determinations ... 2. The Supreme Court’s Finality Jurisprudence Has Always Embraced a Pragmatic Approach … 3. Allowing Judicial Review Is Consistent with the Legislative History of the APA
V. Conclusion
The Final Judgment Rule and Appellate Review of Discovery Orders in Nebraska
William H. Sherwood et al.
In Lund v. Holbrook the Nebraska Supreme Court held that no appeal could be taken until after final judgment from an order requiring a party to turn over documents to his opponent for inspection and copying. The basis for the decision was a statute limiting the appellate jurisdiction of the supreme court to the review of a “judgment rendered or final order.” “Final order” is defined by statute as one which “ . . . in effect determines the action and prevents a judgment.” The same rule would undoubtedly by applied to any other discovery order in Nebraska.
This “final judgment” rule exists in some form in almost every state. The application of the rule in Lund v. Holbrook is in line with the rulings of the majority of states as to discovery orders. The purpose of the rule is to reduce the volume of appeals which would, in the absence of the rule, clog the calendars of appellate courts and cause interminable delay in litigation.
Many states have modified the final judgment rule by statute to allow immediate appeal from specified orders which are not reviewable under the majority rule until after final judgment. The reason for these modifications may be either that the final judgment rule does not fulfill its purposes, or that the assumption underlying the rule (i.e., that the effect of any error on the part of the trial court can be remedied by a new trial) has proved to be untrue.
The decision in Lund v. Holbrook illustrates another type of order, the discovery order, which may be worthy of consideration as justifying a departure from the final judgment rule. We propose to examine:
(a) the effect of the final judgment rule in cases involving discovery orders, to determine whether departure from the final judgment rule is justified,
(b) the means presently existing in Nebraska for avoiding the effect of the final judgment rule as to discovery orders, and
(c) the desirability of, and possibilities for statutory modification of the final judgment rule as to discovery orders in Nebraska.
Bussing v. COR Clearing, LLC, 20 F. Supp. 3d 719 (D. Neb. 2014): Preserving the Right to Tell Your Employers What They Do Not Want to Hear
Kelsey E. B. Knoer
Should internal whistle-blowers be awarded the anti-retaliation protections under Dodd-Frank? This Note analyzes how the Federal District Court for the District of Nebraska's interpretation of anti-retaliation provision will preserve the integrity of whistle-blowing programs and protect those employees most in need of protection from retaliation.
The Animal Welfare Act at Fifty: Problems and Possibilities in Animal Testing Regulation
Courtney G. Lee
I. Introduction
II. Background of the Animal Welfare Act ... A. Enactment and Evolution ... B. Early Amendments ... C. Improved Standards for Laboratory Animals Act of 1985 ... D. Institutional Animal Care and Use Committees ... E. IACUC Effectiveness
III. Coverage of the AWA ... A. What Is an “Animal” under the AWA? ... B. Legislative Background of the Definition ... C. Sentience of Unprotected Species
IV. The Effectiveness and Necessity of Animal Testing ... A. Is Animal Experimentation Effective? ... B. Alternatives to Animal Testing ... 1. In Vitro Testing ... 2. In Silico Testing ... 3. Alternative Testing Advancements in Toxicology
V. Laboratory Testing in Other Countries ... A. The European Union ... B. Other Countries ... C. Cosmetics Testing in the United States
VI. “Spent” Animals
VII. Recommendations ... A. Expand the Definition of “Animal” ... B. Increase the Diversity and Power of IACUCs … C. Strengthen Commitment to the Three Rs ... D. Include a Provision Encouraging Adoption for Spent Animals
VIII. Conclusion
Al Maqaleh and the Diminishing Reach of Habeas Corpus
Rehan Abeyratne
I. Introduction
II. Al Maqaleh: Background and Procedural History … A. Facts of the Case ... B. The Four Major Opinions ... 1. Al Maqaleh I ... 2. Al Maqaleh II ... 3. Al Maqaleh III ... 4. Al Maqaleh IV
III. Revisiting the Site of Apprehension and Site of Detention Factors ... A. Site of Apprehension ... B. Site of Detention ... 1. Is Sovereignty a Necessary Condition for Writ Jurisdiction? ... a. De Facto Sovereignty ... b. Eistentrager’s Holding ... 2. Conflating Degree and Duration of Control ... 3. A “Permanent” U.S. Presence at Bagram
IV. When Practical Obstacles Become Practically Insurmountable ... A. Overstated Obstacles in Al Maqaleh: A Closer Inspection of the Facts ... B. Practical Obstacles as Separation of Powers Concerns
V. Executive Manipulation of Writ Jurisdiction ... A. Evidence of Manipulation ... B. The Senate Select Committee on Intelligence Report
VI. Conclusion: The Diminishing Reach of the Writ of Habeas Corpus
Regulating the Sharing Economy: New and Old Insights into an Oversight Regime for the Peer-to-Peer Economy
Raymond H. Brescia
I. Introduction
II. Regulation, the Legal Profession, and the Sharing Economy ... A. Latent Resources and an Independent Workforce ... B. Regulation, Independence, and Consumer Protection in a Relationship of Trust ... 1. Attorney-Client Relationships, Trust, and Regulation ... 2. Sharing Economy Relationships, Trust, and Regulation ... C. Consumer Protection in a Relationship Designed to Encourage Creativity and Innovation, While Generating Profit
III. The Evolution of Regulation of the Legal Profession … A. Brief History of Regulation of the Legal Profession, from the Colonial to the Contemporary Eras ... B. Key Questions and Themes Underlying the Evolution of the Regulation of the Legal Profession ... 1. Self-Regulation to Secure Professional Independence and Uphold the Rule of Law ... 2. Self-Regulation to Fend Off Regulation by Outside Entities ... 3. Barriers to Entry … 4. The Right to a Livelihood ... C. The Legal Profession’s Regulatory Regime ... 1. Barriers to Entry ... 2. Unauthorized Practice of Law ... 3. Codes of Conduct and Self-Regulation ... 4. Disciplinary Machinery ... 5. An Insurance Regime ... 6. Recourse through the Courts and Tort Liability ... D. New Governance and Regulation of the Legal Profession: Flexibility, Adaptability, and Local Experimentation
IV. What the Evolution of the Regulation of the Legal Profession and New Governance Theory Can Tell Us about the Need for and the Contours of Regulation of the Sharing Economy ... A. Self-Regulation, Barriers to Entry, and Codes of Conduct ... B. Disciplinary Machinery ... C. Ongoing Judicial Oversight to Ensure Consumer Protection with “Supervisor” Liability ... D. Insurance Mechanisms ... E. Flexibility, Adaptability, and Local Experimentation
V. Conclusion
Civil Defense and Law, Part II
Val Peterson
American lawyers dare not ignore the legal dislocations that would result from an attack upon this country. A new dimension to the responsibilities of the legal expert is the protection of the legal structure around which is built the nation’s economy. The threat to the national legal machinery is a real one. This danger probably cannot be eliminated; however, intelligent planning can very definitely lessen the impact of severe destruction. Careful, skillful planning, reduced to practical terms and applied judiciously to the daily problems with which we are most familiar, can do much toward reducing the effects of devastating disaster.
Professional Liability
Earl Cline
The subject of this article, “Professional Liability,” is very broad and could include not only malpractice liability but also other liabilities of the physician and surgeon. Instead of attempting to discuss so broad a field, it will be confined to the subject of liability for malpractice and trespass and particularly recent trends in court decisions relating to the liability of the physician and surgeon therefor.