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Nebraska Transcript (University Of Nebraska College Of Law), Volume 40, Number 2, Winter 2008

Nebraska Transcript

2 Space and Telecom Law

7 Taking Shape: Construction Projects to Add Classrooms, Renovate Restrooms

13 What’s New in the CSO?

15 Assistant Dean Gloden Comes Back to the Good Life

17 Estop The Music

35 Giving and Receiving with Charitable Remainder Unitrusts

36 Hong First to Receive Outstanding International Alumnus Award

37 Fiala Finds That Preparation Pays In Classroom, Courtroom, Radio Booth

39 Hendry at Home in Classroom

Dean’s Message ; 9 Donor Recognition ; 10 Award of Merit ; 11 Law Library Tales & Tables ; 18 Faculty Notes ; 21 Faculty News ; 23 Graduation ; 26 …

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 Given the proliferation of RTAs since that time and the inability to roll back the clock, that policy debate has been replaced by a search for strengthened constraints on RTA activity that might ensure it complements the WTO system.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 …

Nebraska Transcript (University Of Nebraska College Of Law), Volume 40, Number 1, Spring 2007

Nebraska Transcript

Transcript, 'Dean Grether's Child; Designed to Keep Alumni Informed

Nebraska TRANSCRIPT: Looking Back Over 40 Years of Chronicling Law College's Distinguished History

lL: David Clausing, Class of 2008, Traverses Peaks & Cliffs of Law School's First Year; It's Like 'Juggling Fire'

Justice Ginsburg: 'Independent Judiciary Essential to Rule of Law'

Judge Tacha Reflects on Changes, Challenges Impacting Federal Courts

Pound Lecturer, Waldron, Addresses Trade-Offs Between Liberty, Security

The Great Commoner: Symposium Contemplates Controversial Modern Legacy of Nebraska Lawyer William Jennings Bryan

Congratulations Class of 2006!

Family Tradition Ceremony: Seven Graduates, Family Members Honored

Law Student Mabrey Works in India To …

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.

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 …

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 …

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 …

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 …

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 …

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 …

Nebraska Transcript (University Of Nebraska College Of Law), Volume 39, Number 2, Spring/Summer 2006

Nebraska Transcript

World's First Law-Psych Program, with Its Integrative Approach. Continues to Rank Among Best
Law-Psychology Program Attracts Students Worldwide
Trial Consultant Uses His Training To Help Lawyers Be Successful
Juries & Civil Justice: Law-Psychology's Program of Excellence Conference Seeks to Improve Understanding of Jury Process
Utah Connection: Thanks to Efforts of Prof. Marty Gardner, Many Utah Students Attend Law School in Lincoln
Constitution Day: University 'Celebrates' the Constitution Even While Calling Into Question Constitutionality of Its Day
The World of Public Interest Law: Students Breaking the Mold
The New Nebraska Rules of Professional Conduct: A Brief Overview
"Hope for a Global …

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. …

• 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 …

Nebraska Transcript (University Of Nebraska College Of Law), Volume 39, Number 1, Fall/Winter 2005–2006

Nebraska Transcript

Table of Contents

2 Five New Faculty Members Bring Variety of Experiences

Career Transitions: Tasha Everman Replaces Notre-Dame-Bound Carla DeVelder as Career Services Director

College Has New Look

McHenry Landscapes Show "This is Nebraska's Law School"

Limerick Summer Program Gives Students Opportunity to Study Comparative Law in Ireland

Harris: "Why Plessy v. Fergusion Is Still Good Law"

Congratulations, Class of 2005!

Rosales Leaves Law College With Mission To Help Others

Family Tradition Ceremony

Seeking Justice: Prof. Alicia Henderson's Tenure Lecture

Alumni Council Awards Honor Distinguished Achievements

Class of 1955 50-Year Reunion Features Camaraderie, Memories

Kratz: White Collar Crime Specialist Founds …

Evaluating Sex Offenders Under Sexually Violent Predator Laws: How Might Mental Health Professionals Conceptualize The Notion Of Volitional Impairment?, Cynthia Calkins Mercado, Robert F. Schopp, Brian H. Bornstein

Department of Psychology: Faculty Publications

This paper examines the significance of the Supreme Court’s Hendricks and Crane decisions, with focus given to how mental health professionals may conceptualize the notion of volitional impairment. The Hendricks decision authorized postsentence civil commitment for sex offenders having a mental abnormality or personality disorder, rendering them likely to engage in future acts of sexual violence. In the Supreme Court’s majority opinion, Justice Thomas implied that the Kansas Act was legitimized by limiting the class of offenders eligible for this specialized form of commitment to those who are “unable to control” their dangerousness. In Crane, the Court ruled that …

Introduction To Canada And U.S. Approaches To Cross-Border Sales Of Pharmaceuticals., Matthew Schaefer

Nebraska College of Law: Faculty Publications

This panel will focus on cross-border sales of pharmaceuticals, and we had a session with the press last night, and this is probably an issue between the U.S. and Canada that gets probably as much press as any other issue, and we are very fortunate to have two excellent speakers to lead us through the issue:

Professor Sara Rosenbaum, George Washington University School of Public Health and Health Services.

Jennifer Orange, who practices civil litigation for Torys, LLP in Toronto.

Free Exercise And Individualized Exemptions: Herein Of Smith, Sherbert, Hogwarts, And Religious Liberty, Richard F. Duncan

Nebraska College of Law: Faculty Publications

In Employment Division v. Smith, the Supreme Court revised its jurisprudence of religious liberty by declaring that, as a general rule, the free exercise of religion may be prohibited by government so long as it does so by means of a neutral law of general application. However, in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the Court made clear that "[a] law burdening religious practice that is not neutral or not of general application" violates the Free Exercise Clause unless the government justifies the restriction on religious liberty by passing a surpassingly strict compelling …

Nebraska Transcript (University Of Nebraska College Of Law), Volume 37, Number 1, Winter 2004

Nebraska Transcript

3 Law College Celebrates Newly Remodeled Building

5 Governors Room Dedication Honors

5 Remarkable Alums

7 New Library Seminar Room Honors Alum Bar Presidents 8 Graduation 2003

10 Class of 2003

12 Honor Class Reunion

14 Family Traditions Ceremony

16 Former President of CBS Leaves Law College $3.4 Million

17 Eye-Opening Panel Discussion Honors Black History Month

19 Pre-Law Summer Institute Introduces Students to the Law

25 Remembering Henry Grether

27 Remembering Norm Thorson

32 Alumni Council Awards Honor Distinguished Achievements

Nebraska Transcript (University Of Nebraska College Of Law), Volume 38, Number 1, Fall/Winter 2004–2005

Nebraska Transcript

U.S. Champs: Law College's Client Counseling Team of Kevin Corlew and Adam

Pavelka Compete in International Competition in Scotland

Upset Victory: 'Cinderella' Moot Court Team Looks Back Fondly at Law College's 1953 National Championship

Schmoker Courtyard Dedicated with Jazz, Flowers, Festivities

Students Begin Legal Careers With Professionalism Orientation

College of Law Hosts Conference On Water Law, Policy & Science

Which Way to True Justice? Appropriate Dispute Resolution & 'Adversarial Legalism'

Supreme Court Correspondent Explains Its 'Monumental Shift'

Graduation Honors

Graduation 2004

Family Tradition Ceremony

U.S. Supreme Court Cites Kirst In Confrontation Clause Case

Journey from Public Defender to Law Librarian …