Social and Behavioral Sciences Commons^™

Why Sarbanes-Oxley Whistleblowers Don’T Win, Richard E. Moberly

Nebraska College of Law: Faculty Publications

Whistleblowers played a significant role in revealing and disrupting corporate malfeasance at the beginning of the 21st century, as scandals at corporations such as Enron and WorldCom came to public light through the efforts of whistleblowing employees. Subsequently, Congress recognized the importance of whistleblowing and included strong and unprecedented anti-retaliation protection for corporate employees as part of the Sarbanes-Oxley Act of 2002 (the Act), the mammoth congressional reaction to these corporate scandals.

Despite Sarbanes-Oxley’s pro-whistleblower provisions and a few early employee victories, however, administrative decisions over the first three years of the Act’s life failed to fulfill these expectations that …

Ensuring That Regional Trade Agreements Complement The Wto System: Us Unilateralism A Supplement To Wto Initiatives?, Matthew Schaefer

Nebraska College of Law: Faculty Publications

In the mid-1990s, the policy debate within the WTO focused on whether regional trade agreements (RTAs) were building blocks or stumbling blocks for the WTO system, essentially questioning whether regionalism was appropriate at all from an economic policy perspective. Given the proliferation of RTAs since that time and the inability to roll back the clock, that policy debate has been replaced by a search for strengthened constraints on RTA activity that might ensure it complements the WTO system. Three major controversies within many existing RTAs are the exclusion of agriculture from coverage, complex and restrictive rules of origin, and varied …

Private Sector Whistleblowers: Are There Sufficient Protections?, Richard E. Moberly

Nebraska College of Law: Faculty Publications

In response to the question this hearing presents, my research indicates that whistleblowers have some legal protection, but the protection is likely insufficient. Over 30 Federal statutes protect whistleblowers and relate to a variety of topics, including workplace safety, the environment, public health, and corporate fraud. However, these statutes provide only a relatively limited amount of protection because of their ad hoc and narrow approaches. Rather than protect any employee who reports any illegal activity, Federal statutes only protect whistleblowing related to a specific topic or statute, and then only if the whistleblower works for an employer covered by the …

Sox And Whistleblowing: The Concerns, Richard E. Moberly

Nebraska College of Law: Faculty Publications

Yesterday, I reviewed the Whistleblowing provisions in SOX. Whether these provisions actually will reduce corporate fraud remains to be seen. Despite the Act’s strong anti-retaliation protections, during the first three years of SOX few whistleblowers actually won retaliation claims. In a recent study I completed of whistleblower claims (a draft can be found here ), only 3.6% of employees won relief through the initial administrative process that adjudicates SOX claims, and only 6.5% of whistleblowers won appeals through the process.

Sox And Whistleblowing, Richard E. Moberly

Nebraska College of Law: Faculty Publications

Whistleblowers famously helped publicize the corporate scandals that gave rise to Sarbanes- Oxley: think Sherron Watkins at Enron and Cynthia Cooper at WorldCom—two of Time Magazine’s “Persons of the Year” for 2002. Given the importance of these employee disclosures, Congress considered it necessary to break the “corporate code of silence” that discouraged potential whistleblowers from coming forward. Indeed, SOX utilizes a unique holistic approach aimed at encouraging employees to disclose information about corporate wrongdoing.

Passing The Buck To Rogers: International Liability Issues In Private Spaceflight, Frans Von Der Dunk

Nebraska College of Law: Faculty Publications

One of the most exciting recent developments in outer space, especially from a legal standpoint, is the advent of space tourism. Within the legal issues surrounding that development, liability is of prime importance.

Liability is, of course, always about "passing the buck," or, more precisely, about who should pay compensation for damage caused by the activities concerned. At both the international level and in the field of space law, however, a large measure of confusion has often arisen as to the scope, meaning, and consequences of liability. This confusion is partly the consequence of liability's intricate relationship to the concept …

Perceptions Of Procedural And Distributive Justice In The September 11th Victim Compensation Fund, Brian H. Bornstein, Susan Poser

Nebraska College of Law: Faculty Publications

The September l1th Victim Compensation Fund (the Fund) was created in response to the terrorist attacks of September 11, 2001. Much has been written about the Fund, both pro and con, in both popular media and scholarly literature. Perhaps the most widely used term in referring to the Fund is "unprecedented." The Fund is intriguing for many reasons, particularly for its public policy implications and its impact on the claimants themselves.

The federal government has never before provided compensation to victims of terrorism through a special master who had virtually unlimited discretion in determining awards. Consequently, this formal allocation of …

Unbundling Property In Water, Sandi Zellmer, Jessica Harder

Nebraska College of Law: Faculty Publications

The United Nations Intergovernmental Panel on Climate Change predicts that, in the foreseeable future, climate change will exacerbate water problems worldwide. In the United States, we are likely to see more severe flooding, more frequent droughts, and a rush to secure legal rights to water supplies. Sustainable management of water resources for present and future generations will become all the more imperative as we face increasing pressure on limited supplies.

The quest for sustainable management has stimulated a movement for greater recognition of private property rights to attain efficient use and allocation of water. The World Bank and the International …

Mississippi River Stories: Lessons From A Century Of Unnatural Disasters, Sandi Zellmer, Christine Klein

Nebraska College of Law: Faculty Publications

In the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a “man-made” disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood …

A Tale Of Two Imperiled Rivers: Reflections From A Post-Katrina World, Sandra Zellmer

Nebraska College of Law: Faculty Publications

Hurricanes are a natural, predictable phenomenon, yet the Gulf Coast communities were devastated by the hurricanes of 2005. One year after Hurricane Katrina struck, the U.S. Army Corps of Engineers responded to a congressional request for an accounting by admitting culpability for the destruction of New Orleans. Its structural defenses failed not because Congress had authorized only moderate Category 3 protection, which in turn let floodwaters overtop the city's levees, but because levees and floodwalls simply collapsed. The so-called network of federal and local structures was a haphazard system in name only, where floodwalls and levees of varying heights utilized …

Unfulfilled Expectations: An Empirical Analysis Of Why Sarbanes-Oxley Whistleblowers Rarely Win, Richard E. Moberly

Nebraska College of Law: Faculty Publications

Scholars praise the whistleblower protections of the Sarbanes- Oxley Act of 2002 as one of the most protective anti-retaliation provisions in the world. Yet, during its first three years, only 3.6% of Sarbanes-Oxley whistleblowers won relief through the initial administrative process that adjudicates such claims, and only 6.5% of whistleblowers won appeals through the process. This Article reports the results of an empirical study of all Department of Labor Sarbanes-Oxley determinations during this time, consisting of over 700 separate decisions from administrative investigations and hearings. The results of this detailed analysis demonstrate that administrative decision makers strictly construed, and in …

Unlabeled Drug Samples And The Learned Intermediary: The Case For Drug Company Liability Without Preemption, Susan Poser

Nebraska College of Law: Faculty Publications

Discusses unlabeled drug samples and the learned intermediary. Presents the case for drug company liability without preemption.

Is Water Property?, Sandra Zellmer, Jessica Harder

Nebraska College of Law: Faculty Publications

One of the most controversial issues in natural resources law is whether interests in water are property. In the western United States, water is typically viewed by appropriators as a form of private property, while in the East it is not. In either case, the law is surprisingly unsettled, notwithstanding the important consequences that follow, particularly under constitutional takings jurisprudence.

Treating water as property has significant implications for investment, conservation and environmental protection as well. Establishing secure property rights can foster stewardship and wise investment of labor and capital. By the same token, the absence of property ownership can result …

Justice Thomas And Partial Incorporation Of The Establishment Clause: Herein Of Structural Limitations, Liberty Interests, And Taking Incorporation Seriously, Richard F. Duncan

Nebraska College of Law: Faculty Publications

Equal religious liberty will be secure--and indeed will flourish--under partial incorporation. Our Nation is not a strictly-secular one, and our public culture may and should reflect the rich, religious diversity of our people. No one should be compelled to affirm any belief or participate in any religious practice, but no one has the right to silence others, to control which lessons public schools may teach and willing pupils may learn, or to censor the public culture. As Justice Thomas has put it so well,"[when rights are incorporated against the States through the Fourteenth Amendment they should advance, not constrain, individual …

Development And Confirmatory Factor Analysis Of The Community Norms Of Child Neglect Scale, Rebecca Goodvin, David R. Johnson, Sam A. Hardy, Michelle Graef, Jeff M. Chambers

Center on Children, Families, and the Law: Faculty Publications

This article describes the development of the Community Norms of Child Neglect Scale (CNCNS), a new measure of perceptions of child neglect, for use in community samples. The CNCNS differentiates among four subtypes of neglect (failure to provide for basic needs, lack of supervision, emotional neglect, and educational neglect). Scenarios ranging in seriousness for each subtype were presented to a large community sample (N = 3,809). Confirmatory factor analyses indicated that a four-factor model provided a better fit to the data than did a model specifying only one overall neglect factor, suggesting this sample distinguished among the four subtypes of …