General Problems of Life Insurance in Estate Planning
Howard E. Tracy
I. The Application of Section 2042 … A. Preliminary Problems … B. The Incidents of Ownership Rule … C. The Reversionary Interest Rule
II. The Application of Other Sections … A. Section 2035: Transfers in Contemplation of Death … B. Section 2036: Transfers with Retained Life Estates … C. Section 2037: Transfers Effective at Death
III. Summary
The Winning National Moot Court Brief
Patrick W. Healey et al.
The Nebraska Law Review is proud to reproduce here the winning brief of the Seventh Annual National Moot Court Competition submitted by a three-member team representing the University of Nebraska College of Law. To retain that value which may be gained from the brief as a style guide for other collegiate teams in moot court competitions and for the practicing lawyer, the brief is published as it appeared in the final round of competition, rather than in the newly adopted format and typographical style of the Nebraska Law Review. More important, the substance of the brief deals with a perplexing problem of the criminal law-the defense of insanity. The brief is of course a document advocating one side of the issue. The following brief summary of the legal issue raised is included to place the brief in its proper context.
Corporate Distributions of Appreciated Property—A Comment on Policy
John E. North
I. The Basic Change
II. Policy Considerations … A. Minimizing the “Double Tax” … B. Preventing Conversion of Ordinary Income to Capital Gain
III. Distribution of Inventory
IV. Distributions of Depreciable Property
V. Conclusion
Duty of Farm Tractor Operators to Infant Passengers
Duane L. Nelson
I. Operator’s Status as Occupier of Land
II. Applicability of the Guest Statute
III. Conclusion
Stolen Profits: Civil Shoplifting Demands and the Misuse of Neb. Rev. Stat. § 25–21,194
Ryan P. Sullivan et al.
I. Introduction
II. Background ... A. Civil Shoplifting Statutes Generally ... 1. General Authority and Amount Recoverable ... 2. Civil Demand Letters ... 3. Collection of Damages and Penalties Under Civil Shoplifting Statutes ... B. An Overview of Nebraska’s Civil Shoplifting Statute ... 1. The Origins of Nebraska’s Civil Shoplifting Statute ... 2. The Statute as Amended ... 3. Limits on Pre-Litigation Demands Under Neb. Rev. Stat. § 25–21,194 ... a. General Loss-Prevention Costs ... b. Anticipated Litigation Expenses
III. Advising the Client ... A. Pay the Demand ... B. Ignore the Demand ... 1. Defending a Claim ... 2. Liability for Attorney’s Fees ... 3. Impact on Credit Rating ... C. Affirmative Legal Challenges ... 1. Federal Challenges ... a. Fair Debt Collections Practices Act … b. Racketeering Influenced and Corrupt Organization Act ... 2. Nebraska Consumer Protection Act ... a. Standing to Sue Under the NCPA ... b. Unfair or Deceptive Business Practice ... c. Trade or Commerce ... d. Affecting Public Interest ... 3. Declaratory Judgment
IV. A Call to Action ... A. Legislative Repeal ... B. Legislative Amendment ... C. Education and Enforcement
V. Conclusion
Generally Applicable Law and the Free Exercise of Religion
Douglas Laycock et al.
I. Introduction
II. Free Exercise of Religion in the Age of Smith
III. Two Requirements with Distinct Content ... A. Neutrality ... B. General Applicability
IV. Elaborating General Applicability ... A. Arguments for Minimizing the Requirement of General Applicability: Stormans v. Wiesman ... B. Reasonable Exceptions ... C. Circular Categories and Circular Government Interests ... D. Secular Exceptions Not Stated in the Law’s Text ... E. Rules That Apply to Most but Not All Analogous Secular Conduct ... F. Laws with a Single Secular Exception That Undermines the State’s Interests
V. Underlying Reasons ... A. Value Judgments about Religion ... B. Vicarious Political Protection for Religious Minorities ... C. The Level of Protection
VI. Conclusion
Evidence—The Uniform Business Records as Evidence Act Applied to Medical Records
Howard E. Tracy
In Fries v. Goldsby, decided in December 1956, the Nebraska Supreme Court held, inter alia, that a chiropractor’s permanent record of plaintiff’s history, examination, diagnosis, care, and treatment were not admissible into evidence under the Uniform Business Records as Evidence Act. Because the court treated the chiropractor as an expert in his field, this holding probably applies to other medical witnesses who testify as experts in their fields of knowledge. Thus, the court has seemingly held that the permanent records of physicians, surgeons, and dentists do not fall within the purview of the Uniform Act. This note is a discussion of that holding.
The Right to Change Defense or Claim by Amendments to the Pleadings
John C. McElhaney
I. Amendments Generally
II. Change in Defense Pleaded from That Used in Pre-Trial Negotiations
III. Amendments after Appeal—General
IV. Amendments after Remand—Specific Examples
V. Conclusion
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.