Legislative Enactment of Standard Forms

Consideration of legislative enactment of statutory forms requires a comparative analysis of current policies of consumerism with current policies underlying prohibitions on the unauthorized practice of law. In reality, that comparison is disproportionately in the hands of lawyers rather than neutrals or public consumers. Consumerism of individual lawyers and bar associations may be offset by the business side of lawyering, specious personal opinions about the unauthorized practice of law without reference to the actual rules regulating it, fears of uncontrollable practice of law by nonlawyers—especially nonlawyers armed with electronic legal information, influence of private clients of lawyers and lobbyists with competing interests, and lawyers serving as part-time legislators who instinctively prioritize the historical-traditional roles of lawyers. Statutory forms are important in implementing the provisions and policies of the basic statute. No other form, however professionally prepared, can bestow the same validation as a legislative statement that “a [document] in substantially the following form shall be sufficient [to invoke the provisions of this Act].” That form will produce the most extensive standardization of practice relating to the subject. A statutory form can serve as a guide to understanding the substantive provisions of the statutes as well as a means of insuring that the provisions are properly given effect. Statutory forms provide an opportunity for legislatures to enact reliable, “understandable and consumer friendly” forms. Otherwise, a variety of forms, some more complex, confusing, and costly, dealing with the same statutes, are likely to be used. The added costs will be borne by both consumers and by the legal system called upon to resolve unclear situations. Subsequent legislation affecting a statutory form can contemporaneously be amended into the statutory form and maintain the greatest currency for the form. The same professional focused attention of proponents and legislatures should be given to statutory form provisions in proposed enactments as to all major provisions at issue. A study of the travails of statutory form provisions of the Uniform Real Property Transfer on Death Act in the Nebraska (non-partisan Unicameral) Legislature illustrates how these competing policies can favor lawyers at the expense of public consumers. The Uniform Act is intended to be an “asset specific will substitute” for non-probate transfers of real property effective at death. It contains an “understandable and consumer friendly” optional statutory form quit claim deed which, unfortunately, is supported by relatively weak commentary in the official explanatory text. After consideration by groups within the Nebraska State Bar Association, the legislation, including the statutory form, was approved by the Bar Association, with a number of modifications of the official text of the Uniform Act. It was introduced in that form in the Nebraska Legislature by a lawyer-legislator at the request of the Bar Association. The statutory form provision was quietly stricken by the principal introducer on the morning of the public hearing before the Judiciary Committee at the request of a private client of the Bar Association’s lobbyists. It was stated that the Bar Association would provide a transfer of real property on death deed form, apparently without disclosure that Bar Association real estate conveyance forms are available to its members for a fee and are not directly available to the general public. It amounted to a stealth attack by lawyers during the legislative process. The Bar Association had previously studied and supported the statutory form provisions. There was no public discussion of the reasons for striking the statutory form. Subsequently, the official position of the Bar Association was changed from support to opposition of the statutory form. The interests of nonlawyer public consumers were not separately represented. The term “unauthorized practice of law” was not expressly relied upon or discussed openly but was always present in the background. Although the statutory form had been stripped from the bill by the time it reached the legislative floor, the legislation suffered further pro-lawyer, potentially anti-consumer amendments prior to enactment. Nebraska now has real property transfer on death legislation which was designed initially to be more simple and consumer-friendly than prior law. The statutes enacted turned out to be more complicated and unfriendly than the rules for other deeds of real property, self-proved wills, and even for executing an “ordinary” will. Nevertheless, despite substantial deviations from the official text of the Uniform Act, the policies and interests of consumerism would have been best served by a statutory form incorporating the legislation as enacted. This analysis examines why the objectives of the statutory transfer of real property on death deed form fared so poorly in the legislative arena. Each of the relevant groups involved bears some of the responsibility, from the initial preparation and presentation of the statutory form and commentary in the Uniform Act, to proponents of the legislation in Nebraska, to loosely drawn, ambiguous rules on the unauthorized practice of law, to the Judiciary Committee’s legislative study committee examining and reporting on each provision of the Act, to the lobbyists for the Bar Association and other private clients, and to individual members of the Legislature

Current Issues in Probate Estate Income Tax Allocation

I. Introduction II. Allocation of Income Tax Burden under Present Law … A. Identity of Competing Interest Groups or Individuals … B. Probate Administration Tax Duties or Choices Affecting Competing Interests III. A Proposal for Revision … A. Scope for Legislative Revision … B. Some Suggested Approaches … C. Outline of a Proposal for Revision … D. Analysis of Proposal for Revision IV. Conclusio

Current Dimensions of the Federal Arbitration Act in Nebraska

The purpose of this Commentary is to describe the current dimensions of the Federal Arbitration Act in Nebraska. The Nebraska Supreme Court has held categorically that the provisions of the Nebraska Uniform Arbitration Act, and clauses in contracts providing for binding arbitration of future disputes violate the open courts provisions of the Nebraska Constitution. Regardless of the success or failure of a proposed amendment of the Nebraska Constitution, the Federal Arbitration Act will be an important part of Nebraska jurisprudence. The Federal Arbitration Act is federal substantive law, which supersedes Nebraska law with respect to arbitrability, and is enforceable in Nebraska courts. Indeed, the Federal Arbitration Act does not confer federal question jurisdiction for federal courts, so most of its enforcement will be in state courts. Recent decisions of the Supreme Court of the United States make clear that the Federal Arbitration Act has broad dimensions. The United States Supreme Court has determined that the Federal Arbitration Act embodies Congress\u27 intent to provide for the enforcement of arbitration agreements within the full reach of the Commerce Clause, defined the respective roles of arbitrators and courts, and set forth rules with respect to choice-of-state-law issues

Current Issues in Probate Estate Income Tax Allocation

I. Introduction II. Allocation of Income Tax Burden under Present Law … A. Identity of Competing Interest Groups or Individuals … B. Probate Administration Tax Duties or Choices Affecting Competing Interests III. A Proposal for Revision … A. Scope for Legislative Revision … B. Some Suggested Approaches … C. Outline of a Proposal for Revision … D. Analysis of Proposal for Revision IV. Conclusio

Arbitrability in Nebraska

I. Introduction II. Coverage of the Nebraska Act ... A. Section 25-2602 in General ... B. Existing Controversies ... C. Future Disputes ... 1. Effect of an Award ... 2. Constitutionality ... 3. Voluntariness/Contract of Adhesion ... 4. Personal Injury Claims ... D. Employment Agreements ... E. Statutory Claims III. Coverage of the Federal Arbitration Act ... A. Preemptive Substantive Law ... B. Grounds for Revocation ... C. Evidencing a Transaction Involving Commerce ... D. Choice of Laws ... E. Relationship to Other Federal Statutes ... F. State Claims Other Than Breach of Contract ... G. Business of Insurance ... H. Seamen, Railroad Employees, or Any Other Class of Workers Engaged In Commerce IV. Conclusion V. Epilogu

Comparative Negligence of an Automobile Guest Apportionment of Damages under the Comparative Negligence Statute

The purpose of this article is twofold: first, to analyze and consider those situations in which the contributory fault of an automobile guest may present either a total or partial bar to his recovery for his damages and injuries; and second, to analyze and consider the methods of apportionment of the guest\u27s damages and injuries under Nebraska law in situations where he has been guilty of some form of contributory negligence

Nebraska\u27s Workmen\u27s Compensation for Aggravation of Pre-existing Infirmities by Exertion or Strain

The recent United States National Health Survey indicates that almost one out of six workers has some sort of known chronic or permanent physical impairment. On any given work day, an undetermined number of additional workers would have various sorts of lesser physical infirmities ranging from minor ailments, such as small cuts or common colds, to really serious physical limitations. Many more workers would have undetected and unknown physical infirmities. This article examines the extent to which these workers may be entitled to compensation under the Nebraska Workmen\u27s Compensation Law for work-connected aggravation of their pre-existing infirmities by exertion or strain

Nebraska\u27s Workmen\u27s Compensation for Aggravation of Pre-existing Infirmities by Exertion or Strain

The recent United States National Health Survey indicates that almost one out of six workers has some sort of known chronic or permanent physical impairment. On any given work day, an undetermined number of additional workers would have various sorts of lesser physical infirmities ranging from minor ailments, such as small cuts or common colds, to really serious physical limitations. Many more workers would have undetected and unknown physical infirmities. This article examines the extent to which these workers may be entitled to compensation under the Nebraska Workmen\u27s Compensation Law for work-connected aggravation of their pre-existing infirmities by exertion or strain

Constitutional and Other Issues in the Application of the Nebraska Uniform Trust Code to Preexisting Trusts

I. Introduction . . . . . 313 II. General Applicability to Trusts Created before January 1, 2005 . . . . . 317 A. Scope of Retroactive Application . . . . . 317 B. Constitutional Limitations . . . . . 318 C. Evolution of UTC Section 1106 and Its Comment . . . . . 324 D. Administrative Provisions . . . . . 327 III. Judicial Proceedings . . . . . 329 IV. Rules of Construction and Presumptions . . . . . 330 A. Clear Indication of a Contrary Intent . . . . . 330 B. Rules of Construction . . . . . 334 1. Scope of “Rules of Construction” . . . . . 334 2. Constitutional Limitations . . . . . 337 C. Presumptions . . . . . 338 1. Scope of Presumptions . . . . . 338 2. Constitutional Limitations . . . . . 340 V. Act Done Before the Effective Date . . . . . 340 VI. Statutes of Limitations . . . . . 341 VII. Substantive Trust Rules Warranting Special Consideration . . . . . 343 A. Claims of Certain Judgment Creditors Against Spendthrift and Discretionary Trusts . . . . . 343 B. Nonjudicial Settlements . . . . . 345 C. Modification or Termination of a Noncharitable Irrevocable Trust by Consent . . . . . 349 D. Modification or Termination Because of Unanticipated Circumstances . . . . . 352 E . Cy Pres . . . . . 355 F. Discretionary Distributions of a Trustee-Beneficiary . . . . . 356 VIII. Nebraska Constitutional Equity Jurisdiction . . . . . 359 IX. Nebraska Supreme Court Jurisdiction of Constitutional Issues . . . . . 361 X . Conclusion . . . . . 36

Employment-Precipitated Heart Attacks: A Few Legal Issues in Establishing Compensability

I. [Introduction] II. Compensability … A. In General … B. Usual versus Unusual Exertion in Heart Attack Cases … 1. Legislative Development … 2. Judicial Analogy III. Rules of Evidence … A. In General … B. Spontaneous Declarations and Res Gestae … C. The “State of Mind” Exception … D. “Habit” … E. The “Dead Man’s Statute” … F. Uniform Business Records as Evidence Ac