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See You in Court: An Analysis of Nebraska’s Newest Abortion Legislation (LB 1103 – Pain-Capable Unborn Child Protection Act)

By Tom Venzor[0]

Introduction

The bill formerly known as the Fetal Pain Prevention Act was passed by the 101st Legislature and approved by Governor Dave Heineman as the Pain-Capable Unborn Child Protection Act ( “LB 1103”) on April 13, 2010. LB 1103 marks yet another milestone in Nebraska’s recent pro-life legislative activities. In the wake of the State’s ban on partial-birth abortions[1] and passage of an informed consent law concerning ultrasound availability (LB 675), [2] LB 1103 is one more reason why the National Abortion Rights Action League (NARAL) Pro-Choice America grades Nebraska with an “F” on the issue of abortion.[3]

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A Matter of Interpretation

By Daniel J. Hassing[0]

Statutory interpretation is a matter that courts wrestle with on a daily basis.  In some cases, it is easy and the text of the statute leads to a clear answer when applied to the facts of a case.  In other cases, courts are left wondering what legislatures intended when they drafted the law.  Over the years, appellate courts have developed rules to aid in their determination of legislative intent.  Like other rules of law, these rules bind lower courts.  But like the legislature, appellate courts are not always clear about the rules they are creating, and lower courts are sometimes left struggling with the application of the court’s ruling.

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Preservation of Error for Appellate Review

By William B. Cassel and Anneliese Wright[0]

Introduction

At the appellate level, there are numerous instances where the court is unable to reach the substantive merits of an issue because the assigned error is not preserved in the record.  The purpose of this article is to highlight the situations in which this commonly occurs and set forth the applicable procedure to preserve the error.  This article is by no means intended as an exhaustive guide, but is merely designed to illustrate some of the more common issues that have appeared in reported Nebraska decisions.  First, the article sets forth proper method of preserving the record, which is essential to preserving any error.  Second, it explains how to preserve particular errors–evidentiary, jury instruction, and other errors–for appellate review.  The third and final section sets forth the proper method of requesting the preparation of the record for appellate review.

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You’ve Got Mail: Harassing Emails and the First Amendment in State v. Drahota

By Daniel J. Hassing[0]

Currently pending before the Nebraska Supreme Court is a case that seeks to balance two very important rights–the right to be left alone and the right to free speech.  This indeed requires a delicate balance.  On one hand, an error in one direction will force Nebraskans to endure demeaning, harassing, and offensive speech, even in their own home.  But on the other hand, an error in the other direction will impede on free speech, one of our society’s most cherished rights.

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Nebraska MCLE Rules Leave Some Lawyers Behind

by John Wiltse[0]

On November 26, 2008, the Nebraska Supreme Court adopted rules[1] requiring most active[2] members of the Nebraska State Bar Association to continue their legal education throughout their careers.  The goal of the rules is to enhance attorney competence so that they may better serve their clients.[3]  Attorney compliance with the continuing legal education (CLE) requirements becomes operative on January 1, 2010.[4]

Beginning October 1, 2009, attendance at any accredited and approved CLE program may apply toward CLE requirements for the first reporting period.  To receive credit, the attorney must first apply to and receive approval from the Nebraska Director of Judicial Branch Education (Director).[5]  Attorneys admitted to engage in the active practice of law in Nebraska are required to complete a minimum of ten hours of approved CLE in each annual reporting period.[6]

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White Robes and Black Robes: The Nebraska Supreme Court’s Vacatur in State v. Henderson

By Daniel J. Hassing[0]

Oftentimes in the law, the outcome in a case is determined by what has previously happened procedurally.  Sometimes, the simple, common sense result is precluded because of the procedural posture of a dispute.  But this bizarre result stands because the procedural requirements are part of the rule of law upon which our society is based.  The Nebraska Supreme Court’s review of an arbitration award in State v. Henderson[1] presented just such a case in which the procedural background should have foreclosed the common sense outcome.  However, the court, by vastly expanding a narrow exception, was able to achieve the necessary outcome.

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FORE! A Heads-Up to Nebraska Real Estate Attorneys After the Skyline Woods Golf Course Case

By Daniel J. Hassing[0]

This past December, the Nebraska Supreme Court made a landmark decision in Nebraska real estate law in Skyline Woods Homeowners Ass’n v. Broekemeier.[1] In this decision, for the first time, Nebraska recognized implied restrictive covenants[2] inferred from a common scheme of development. Such covenants are not recorded expressly in the chain of title, but rather are inferred from a common plan affecting the property and its surroundings. This decision has the potential to set some costly traps for the unwary homebuyer and real estate attorney.

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Preventing and Suppressing Gang Crimes through Comprehensive Anti-Gang Legislation: A Solution to Nebraska’s Gang Problem

[EDITOR’S NOTE: From time to time, the Bulletin will publish “white papers.”  These papers come from a number of student sources; they could be seminar papers, class papers, or case notes that have not yet been selected for publication.  The Bulletin‘s goal in publishing these materials is to provide practitioners with the background research that was done for the paper.  In other words, we hope to create a depository of research that was done for different purposes.  We hope that readers of the Bulletin will find these papers useful and interesting.

These papers have not undergone any substantial editing by the staff prior to publication.

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There’s No Escape: The Plaintiff’s Right to Dismiss After the Submission of a Motion for Summary Judgment or a Motion to Dismiss in Nebraska

By John P. Lenich[0]

Section 25-601(1) provides that the plaintiff can voluntarily dismiss an action without prejudice anytime before final submission.[1]  “Final submission contemplates submission on both the law and the facts when nothing remains to be done in order to render the submission complete.”[2]  A final submission occurs in a bench trial when the parties finish their closing arguments.   A final submission occurs in a jury trial after the parties finish their closing arguments and the jury has been instructed.[3]  At that point, the action has been put in the hands of the trier of fact for a decision on the merits.

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SORNA in the Eighth Circuit

By Daniel Hassing[0]

Child exploitation and other sexual crimes are some of the most perverse and pervasive crimes in the United States.  Cases such as those involving Elizabeth Smart and Jessica Lunsford grab headlines and demonstrate the depravity of some criminals.[1]   In an effort to combat such offenders, Congress enacted the Adam Walsh Child Protection and Safety Act of 2006.[2]   Title I of the Act is called the Sex Offender Registration and Notification Act (SORNA).[3]

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