Digital Commons Network^™

Locked Out: Locke V. Davey And The Broken Promise Of Equal Access, Richard F. Duncan

Nebraska College of Law: Faculty Publications

This Article analyzed Chief Justice Rehnquist's Footnote Three dictum, and concluded that the Promise Scholarship Program in Davey was clearly designed to encourage Promise Scholars to choose from an infinitely broad array of subjects, viewpoints, and courses of study that make up the marketplace of ideas of higher education in the State of Washington. Since the exclusion of devotional theology majors from the Program was clearly based on the viewpoint from which theology is taught and studied, and since it is clear that government may not discriminate on the basis of viewpoint--even in the context of a funding program--if the …

• The Collision Of The Takings And State Sovereign Immunity Doctrines, Eric Berger

Nebraska College of Law: Faculty Publications

I. Introduction 494
II. Framing the Problem 501
III. The Doctrinal Collision Course 504
A. Takings Doctrine and Tax Refund Cases. 504
1. Takings Cases 504
2. Due Process Tax Refund Cases 507
B. State Sovereign Immunity Doctrine 509
C. The Unanswered Questions . 516
IV. TheTextual Argument 518
V. The Structural Arguments 524
A. Which Reading Does Less Damage? 525
B. The Marbury Principle and the Problem of Constitutional Remedies 528
1. Just Compensation and the Remedial Promise 528
2. Alden and the Symmetry of State Sovereign Immunity 550
3. The Availability of Alternative Remedies 555
C. The Fourteenth …

Sarbanes-Oxley’S Structural Model To Encourage Corporate Whistleblowers, Richard Moberly

Nebraska College of Law: Faculty Publications

Recent corporate scandals demonstrate that rank-and-file employees often remain silent in the face of significant fraud. This silence is unfortunate because corporate employees have inside knowledge of misconduct that gives them an information advantage over more traditional corporate monitors, such as independent directors and government regulators. To address this problem, the Sarbanes-Oxley Act utilized a new approach that encourages employee whistleblowers to disclose information about corporate wrongdoing. This approach, which Professor Richard Moberly labels the “Structural Model,” requires that corporations provide a standardized channel for employees to report organizational misconduct to official monitors within the corporation. This Article offers an …

How Readable Are Summary Plan Descriptions For Health Care Plans?, Colleen E. Medill, Richard L. Weiner, Brian H. Bornstein, E. Kiernan Mcgorty

Nebraska College of Law: Faculty Publications

How Readable Are Summary Plan Descriptions For Health Care Plans?

• SPDs are the primary source of health plan information: The summary plan description (SPD) is the primary source of information for workers who participate in an employment-based health care plan. This study investigates whether private-sector employers’ SPDs are written so that an average plan participant can identify and read important information contained in the document, as required by federal law. The study collected and tested SPDs for 40 health care plans from a diverse national sample and subjected them to content and readability analyses.

• Important information contained in …

Resolving The Judicial Paradox Of "Equitable" Relief Under Erisa Section 502(A)(3), Colleen E. Medill

Nebraska College of Law: Faculty Publications

A "judicial paradox" exists today concerning the state of equitable remedies available under the Employee Retirement Income Security Act of 1974 ("ERISA"). This paradox exists not as a result of implementation of the statute by a federal regulatory agency, but rather as the result of numerous Supreme Court decisions interpreting the meaning of "appropriate equitable relief" for claims brought under Section 502(a)(3) of ERISA.

An adequate theory of "appropriate equitable relief" under Section 502(a)(3) of ERISA has yet to be developed. Ultimately, the law- equity paradigm has led to judicial decisions under Section 502(a)(3) that contravene Congress's intent to provide …

Two-Edged Swords, Dangerousness, And Expert Testimony In Capital Sentencing, Robert F. Schopp

Nebraska College of Law: Faculty Publications

A series of court opinions and a related line of commentary draw attention to the need for further inquiry regarding the defensible interpretation and application of dangerousness as a consideration in capital sentencing. The court opinions raise questions regarding the manner in which sentencers should interpret and weigh dangerousness as a factor in capital sentencing. In Penry v. Lynaugh, the Supreme Court overturned the capital sentence of a mentally retarded offender under the special issue sentencing standard in force in Texas at that time. This procedure required that the sentencing jury answer two sentencing questions regarding deliberateness and dangerousness. …