Legal Studies Commons^™

Campus Safety: Assessing And Managing Threats, Mario Scalora, Andre Simons, Shawn Vanslyke

Mario Scalora Publications

Since the shootings at Virginia Tech, academic institutions and police departments have dedicated substantial resources to alleviating concerns regarding campus safety. The incident in Blacksburg and the similar tragedy at Northern Illinois University have brought renewed attention to the prevention of violence at colleges and universities.

Campus professionals must assess the risk posed by known individuals, as well as by anonymous writers of threatening communications. The authors offer threat assessment and management strategies to address the increased demands faced by campus law enforcement, mental health, and administration officials who assess and manage threats, perhaps several simultaneously.

Fair Practices In Hiring, Case Analyses, Susan Poser

Nebraska College of Law: Faculty Publications

Case analyses of fair practices in hiring in academia.

The Supreme Court's Anti-Retaliation Principle, Richard E. Moberly

Nebraska College of Law: Faculty Publications

In five cases issued during the last five years, the Supreme Court interpreted statutory anti-retaliation provisions broadly to protect employees who report illegal employer conduct. These decisions conflict with the typical understanding of this Court as pro-employer and judicially conservative. In a sixth retaliation decision during this time, however, the Court interpreted constitutional anti-retaliation protection narrowly, which fits with the Court’s pro-employer image but diverges from the anti-retaliation stance it appeared to take in the other five retaliation cases. This Article explains these seemingly anomalous results by examining the last fifty years of the Supreme Court’s retaliation jurisprudence. In doing …

In Search Of A Theory Of Deference: The Eighth Amendment, Democratic Pedigree, And Constitutional Decision Making, Eric Berger

Nebraska College of Law: Faculty Publications

The Supreme Court’s recent Eighth Amendment death penalty case law is in disarray, and the confusion is symptomatic of a larger problem in constitutional doctrine. In Baze v. Rees and Kennedy v. Louisiana, the Court approached the challenged state policies with vastly different levels of deference. Though the Court purported to apply longstanding Eighth Amendment tests in both cases, Baze was highly deferential to state policy, and Kennedy was not deferential at all. Remarkably, neither the Court nor legal scholars have acknowledged, let alone justified, these contrasting approaches.

This Article proposes a theory of deference to address this discrepancy. Courts …

Digital Statutory Supplements For Legal Education: A Cheaper, Better Way, C. Steven Bradford

Nebraska College of Law: Faculty Publications

Students should not have to pay so much for statutory supplements. Commercial casebook publishers add little value to the freely available, noncopyrighted material in statutory supplements, and commercial publishers have no real comparative advantage in producing them. With little effort, law professors could produce many statutory supplements required for their courses for free, just as they produce course syllabi and other handouts. And they could provide those materials in a more convenient digital form, not in the bulky print format offered by the commercial casebook publishers. With the example given in this paper of successful creation and distribution of a …

The Invisible Woman: Availability And Culpability In Reproductive Health Jurisprudence, Beth Burkstrand-Reid

Nebraska College of Law: Faculty Publications

Women's health is widely assumed to be a significant consideration in reproductive rights cases. Court decisions relating to contraception, abortion, and childbirth demonstrate that while this assumption may have historical validity, consideration of women's health is often truncated in recent reproductive rights jurisprudence. This occurs, in part, through the application of one or both of two recurring tools. First, judges regularly--and often inaccurately--cite the theoretical availability of alternative reproductive health services as proof that women's health will not suffer even if a law curtailing reproductive rights is upheld. I label this the "availability tool." Second, when alternatives are not available, …

Did The Arbitrator "Sneeze"?--Do Federal Courts Have Jurisdiction Over "Interlocutory" Awards In Class Action Arbitrations?, Kristen M. Blankley

Nebraska College of Law: Faculty Publications

Judge Posner once stated that the federal courts do not have the ability to conduct judicial review every time the arbitrator "sneezes."' Judge Posner further opined, however, that although the courts do not have jurisdiction to review every ruling made by an arbitrator, he could not articulate any more specific rule as to when the federal courts do have jurisdiction. Of course, this concept has caused some great difficulties for parties who would like to have the ability to have additional review, particularly as class action arbitration procedures have explicitly contemplated judicial review at times other than after the final …

The "Clearest Command" Of The Establishment Clause: Denominational Preferences, Religious Liberty, And Public Scholarships That Classify Religions, Richard F. Duncan

Nebraska College of Law: Faculty Publications

The purpose of this article is to analyze the Supreme Court's doctrine prohibiting denominational preferences with a view toward mapping out the boundaries of the doctrine in light of its animating principle of free religious competition. I will then attempt to apply the "clearest command of the Establishment Clause" to the facts of a recent free exercise decision of the Court, Locke v. Davey. Although the Court in Davey rejected a free exercise challenge to a state scholarship program that denied funding to students pursuing college degrees in "devotional theology," I will suggest that this exclusion creates a denominational …

Multijurisdictional Adr Practice: Lessons For Litigators, Kristen M. Blankley, Emily E. Root, John Minter

Nebraska College of Law: Faculty Publications

As everything else in life has become more global, so has the practice of law. Lawyers commonly have clients and conduct work in states other than the ones in which they reside and are licensed. Transactional lawyers commonly work for clients in different states or put together deals that close in states other than the ones in which they are licensed. Litigators, too, often have clients in other states, participate in court proceedings in other states, and engage in both formal and informal discovery in other states. The work of the litigator poses even more questions if that litigator is …

Program And Proceedings: Nebraska Academy Of Sciences 1880–2010, 130th Anniversary Year, One Hundred-Twentieth Annual Meeting

Nebraska Academy of Sciences: Programs and Proceedings

Program

Aeronautics and Space Science

Chemistry and Physics

Collegiate Academy: Biology

Collegiate Academy: Chemistry and Physics

Biological and Medical Sciences

Chemistry and Physics

History and Philosophy of Science

Nebraska Wesleyan University Health and Sciences Graduate School Fair

Junior Academy, Senior High Competition/p>

Aeronautics and Space Science, Poster Session

Teaching of Science and Math

Maiben Memorial Lecture: Mark Greip, Department of Chemistry, University of Nebraska–Lincoln

Aeronautics

Anthropology

Junior Academy, Senior High Competition

Earth Science

Junior Academy, Junior High Competition

Nebraska Transcript (University Of Nebraska College Of Law), Volume 42, Number 1, Fall 2009

Nebraska Transcript

Client Counseling Team Wins National Championship, International Competition

College of Law Career Services Office: Class of 2008 Employment Statistics

Law Library Tales and Tables

Tom Hazen: from Husker to Tar Heel

Lenich receives praise, recognition for ‘nebraska Civil Procedure’ treatise

Shavers, Denicola will hold interim leadership posts until dean is selected

Lubken given 2008 award of appreciation by Nebraska state bar for volunteer work

Gless' 'History of Nebraska Law' combines his occupation, avocation

To Witt, it’s all about relationships

Ron Hunter: Changed Omaha through history

Daughter helps to preserve Perry Fuller legacy

Preemption By Stealth, Sandi Zellmer

Nebraska College of Law: Faculty Publications

One can hardly dispute that preemption issues are complex and highly nuanced, involving both federalism and separation of powers---congressional prerogatives, agency competence, and judicial deference--as well as efficiency, equity, victim compensation, and cost-shifting objectives. By focusing specifically on cases involving statutory savings clauses, this Article makes a modest attempt to identify preemption patterns and principles from a discrete set of opinions issued by the Rehnquist and Roberts Courts through 2008. It undertakes a comparative analysis of case law in four areas: (1) the environment; (2) labor and employment; (3) products liability; and (4) agricultural practices. These four were chosen both …

A Close Encounter: People To People International's Legal Research And Library Science Delegation Visits China, Richard Leiter

Marvin and Virginia Schmid Law Library: Faculty Publications

Last October, I had the privilege of leading a delegation of (mostly) law librarians on a 10-day professional visit to Beijing and ghai, China. The goal of the trip was to get acquainted with Chinese legal bibliography and China's legal system. The visit was arranged and facilitated by the People to People International Citizen Ambassadors Program headquartered in Spokane, Washington. (If you haven't heard of the organization, please check out its Web site at jwptpAi.so rsgta.)t ed on the Web site, "The purpose of People to People International is to enhance international understanding and friendship through educational, cultural, and humanitarian …

Umpires, Not Activists: The Recent Jurisprudence Of The Nebraska Supreme Court, Richard F. Duncan

Nebraska College of Law: Faculty Publications

Nebraska is the “Big Red” state, both in football and in politics. The people of Nebraska are conservative and they wish to rule themselves, either directly through the retained powers of initiative and referendum, or indirectly through the process of self-government and laws enacted by their democratically-elected representatives. Government by the judiciary is simply not the way we do things in Nebraska.

The people of Nebraska are fortunate to have a state Supreme Court so much in tune with the will of the people. As this Report has shown, recent decisions of the Nebraska Supreme Court demonstrate that the court, …

A Decade Of Change In Sixth Amendment Confrontation Doctrine, Roger Kirst

Nebraska College of Law: Faculty Publications

The United States Supreme Court brought new prominence to Sixth Amendment confrontation doctrine in 2004 when it announced its testimonial interpretation in Crawford v. Washington. This essay describes how confrontation doctrine was changed in the last decade by Crawford and the Court’s subsequent decisions in Davis v. Washington and Giles v. California. It examines what the disagreements among the five opinions in Giles suggest about whether the Court will continue to rely so strongly on historical hearsay doctrine to interpret the Confrontation Clause. It discusses other confrontation issues the Supreme Court will face in future cases.

United States: The Emergence Of Environmental Considerations, Sandra Zellmer

Nebraska College of Law: Faculty Publications

This essay traces the emergence of environmental considerations in U.S. water law, beginning with colonial America and proceeding through the Gilded Age of industrialization, the Progressive Era of wise use, the New Deal and the rise of the federal administrative state, and the modern environmental era. Early on, environmental challenges were addressed haphazardly. The federal government influenced water policy through navigational enhancements, reclamation works, and flood control, while state and local law governed water rights and public health issues. The 1970s brought uniform federal effluent limitations and protections for endangered species. The dawn of the twenty-first century increasingly sees collaborative …

Empirical Research On Consumer Arbitration: What The Data Reveals, Sarah R. Cole, Kristen M. Blankley

Nebraska College of Law: Faculty Publications

In 2007, Public Citizen, a “national, non-profit public interest organization,” issued a report entitled “The Arbitration Trap: How Credit Card Companies Ensnare Consumers,” concluding that the arbitration process routinely exploits consumers. Public Citizen drew this sweeping conclusion after analyzing approximately 34,000 points of data the National Arbitration Foundation (“NAF”) collected about its California arbitrations.

Unfortunately, Public Citizen’s analysis of the NAF data does not support its conclusions primarily because its conclusions cannot be extended beyond the set of cases the data contains, i.e., collection cases filed by creditors, including credit card companies, against consumers with outstanding balances on their accounts. …

Who Gets To Be The Expert?: Legal Research Skills Certification In Legal Education, Richard Leiter

Marvin and Virginia Schmid Law Library: Faculty Publications

This article considers the question of whether there is a need for law schools to offer certification for specialization in legal research skills and discusses various approaches to legal research skills cer­tification. The author argues that it is unnecessary to offer legal research certification as it is presupposed that a basic legal educa­tion should include instruction in how to find and read the law. Anything less is a failed legal education.

Exactly how special are legal research skills? Are they special enough to warrant certification? As a matter of fact, the act of legal researching is so intimately connected with …

Lethal Injection And The Problem Of Constitutional Remedies, Eric Berger

Nebraska College of Law: Faculty Publications

I. An Overview of Lethal Injection............................................................... 263
A. The Three-Drug Protocol.............................................................................. 263
B. The Supreme Court’s Fractured Decision in Baze v. Rees ............................273
II. Remedial Anxieties and Lethal Injection ................................................ 280
A. How Remedy Constrains the Right............................................................... 280
1. Remedial Concerns in Baze................................................................. 283
2. Remedial Concerns in Other Lethal Injection Cases ......................... 286
3. Concerns About Delay......................................................................... 293
B. The Structural Injunction’s Shadow over Lethal Injection........................... 296
III. Political Process Failures and the Need for Judicial Intervention.....................................................................................................301
IV. The Modesty of Lethal Injection Remedies..............................................314
A. Remedial Options .......................................................................................... 315

Thoughts On Lb 36: Problems With The Proposed Bill To Institute Lethal Injection In Nebraska, Eric Berger

Nebraska College of Law: Faculty Publications

In February 2008, the Nebraska Supreme Court held in State v. Mata that Nebraska’s electrocution procedure violated the Nebraska constitution’s prohibition against cruel and unusual punishment. Mata left Nebraska in the curious position of having the death penalty on the books without a constitutional method of executing death sentences. In December 2008, Nebraska Attorney General Jon Bruning submitted a report to the Governor recommending that Nebraska adopt lethal injection as a new means to carry out a sentence of death. General Bruning’s report included LB 36, a proposed statute that would institute lethal injection in Nebraska.

On January 29, 2009, …

Recruiting And Selecting Child Welfare Staff, Michelle Graef, Megan Paul, Tara L. Myers

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

In this chapter, the focus is on recruiting and selecting new staff and on the steps agencies can take to ensure that they are doing the best possible job to attract and hire a high-performing, committed workforce. This chapter reviews a number of strategies for improving recruitment and selection processes and provides case examples from the authors' work with child protection agencies in several states. These projects have been accomplished by a team of researchers at the University of Nebraska-Lincoln's Center on Children, Families, and the Law (CCFL). Some of the techniques described here will be familiar, whereas others are …

Program And Proceedings: Nebraska Academy Of Sciences 1880–2009, 129th Anniversary Year, One Hundred-Nineteenth Annual Meeting

Nebraska Academy of Sciences: Programs and Proceedings

Program

Aeronautics and Space Science

Collegiate Academy: Biology

Earth Science

Collegiate Academy: Chemistry and Physics

Biological and Medical Sciences

Nebraska Wesleyan University Health and Sciences Graduate School Fair

Junior Academy: Senior High Competition

Aeronautics and Space Science, Poster Session

History and Philosophy of Science

Teaching of Science and Math

Maiben Memorial Lecture: Donald Frey, Department of Family Practice, Creighton University Medical Center

Anthropology

Chemistry and Physics

Junior Academy, Junior High Competition

Managing Performance [In Child Welfare Supervision], Megan E. Paul, Michelle Graef, Erika J. Robinson, Kristin Saathoff

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

One of the primary roles of a supervisor is to manage worker performance. Performance management is the "continuous process of identifying, measuring, and developing the performance of individuals and teams and aligning performance with the strategic goals of the organization" (Aguinis, 2007, p. 2). Supervisors must regularly assess current performance levels and take steps to improve performance in a way that is congruent with agency goals. The ultimate goal is to achieve agency objectives through individual and team performance.

To effectively manage performance, supervisors must know what the performance expectations are for workers and clearly communicate these expectations to workers. …

The Missing Lawyering Skill, Richard Leiter

Marvin and Virginia Schmid Law Library: Faculty Publications

Educating Lawyers, a new book from the Carnegie Foundation, analyzes our modern system of legal education, and, in some measure, finds it wanting. The authors set out to evaluate legal education's response to decades old criticisms that it fails t teach lawyering skills and legal ethics.

The Anti-Speculation Doctrine And Its Implications For Collaborative Water Management, Sandi Zellmer

Nebraska College of Law: Faculty Publications

From Texas tycoon T. Boone Pickens to former corporate conglomerate Enron, grandiose schemes to profit from large-scale, transbasin water transfers have proliferated in the past decade. Reactions range from outrage at the commoditization of this precious resource to support for letting the market and its pricing signals move water to the most efficient use. The long-standing prohibition against speculation in water is an impediment to commoditization and, consequently, water marketing in the western United States. By contrast, acquiring real estate, grain, art, and other types of property in hopes of profiting from future market fluctuations is not at all unusual. …

Legal Tools For Lnstream Flow Protection, Sandi Zellmer

Nebraska College of Law: Faculty Publications

Across North America, flow alterations and diversions have led to the depletion of stream flow-reliant ecosystems and ecosystem services. In western states and provinces, the law historically considered water left in the stream to be wasted. Western state laws encouraged full appropriation of rivers and streams, primarily to satisfy the need to divert water to arid areas for economic and domestic purposes. In Eastern states and provinces, stream flows have been altered and depleted through channelization, dams, levees and other structural changes. By the 1970s, "salmon populations were crashing, riparian habitat was being lost, and . . . legendary rivers …

Protecting Whistleblowers By Contract, Richard E. Moberly

Nebraska College of Law: Faculty Publications

Numerous statutes and the tort of wrongful discharge purport to prohibit companies from retaliating against employee whistleblowers. However, whistleblowers often lose retaliation lawsuits because these statutory and common law tort protections depend upon a variety of nuanced factors, such as the employer for whom the whistleblower works, the kind of wrongdoing reported, the way in which the employee blew the whistle, and, under some laws, the willingness of an administrative agency to investigate the whistleblower's claim. Given these difficulties, this Article explores an alternate route for whistleblower protection: enforcing the existing contract protections that private employers currently provide employees when …

Participant Perceptions And Decision-Making Concerning Retirement Benefits, Colleen E. Medill

Nebraska College of Law: Faculty Publications

From 1964 until 2002, the State of Nebraska sponsored a defined contribution plan for its employees. During this period, the plan was unique among state pension plans because it was an individual account-type plan that offered participants the choice of a lump sum or annuity distribution upon retirement. Such a choice presents the opportunity to learn more about how individuals perceive financial risks and weigh various factors when deciding how to access their retirement benefits. This study reports the results of a new survey of Nebraska state workers who retired or terminated employment in 1997. The results offer a perspective …

The Retirement Distribution Decision Ten Years Later: Results From An Empirical Study, Colleen E. Medill

Nebraska College of Law: Faculty Publications

From 1964 until 2002, the State of Nebraska sponsored a defined contribution plan for its employees. During this period, the plan was unique among state pension plans because it was an individual account-type plan that offered participants the choice of a lump-sum or annuity distribution upon retirement. Such a choice presents the opportunity to learn more about how individuals perceive financial risks and weigh various factors when deciding how to access their retirement benefits. This study reports the results of a new survey of Nebraska state workers who retired or terminated employment in 1997. The results offer a perspective on …

Boom And Bust On The Great Plains: Déjà Vu All Over Again, Sandra Zellmer

Nebraska College of Law: Faculty Publications

Two books published in 2006 provide a compelling portrait of the "boom and bust" cycles that have plagued the Great Plains since European settlement. The Worst Hard Time: The Untold Story of Those Who Survived the Great American Dust Bowl and Ogallala Blue: Water and Life on the High Plains stand beside Mark Reisner's classic study of western water resources, Cadillac Desert, and Wallace Stegner's tribute to one of America's greatest conservationists, Crossing the Next Meridian: John Wesley Powell and the Second Opening of the West, as "must read" books for anyone who cares about the future of …