Legal Studies Commons^™

Securities Regulation And Small Business: Rule 504 And The Case For An Unconditional Exemption, C. Steven Bradford

Nebraska College of Law: Faculty Publications

Small businesses are an important part of the U.S. economy. When small businesses need to raise capital from the public, they must comply with securities laws and regulations. Most operators of small businesses are unfamiliar with the intricacies of securities law. As a result, they are likely to unwittingly violate these laws. This, combined with the high relative cost to small businesses of registering securities, led the Securities and Exchange Commission (SEC) to create several exemptions, including Rule 504 of Regulation D. Until recently, Rule 504 was a virtually unlimited exemption from the federal registration requirement for offerings of under …

Securities Regulation And Small Business: Rule 504 And The Case For An Unconditional Exemption, C. Steven Bradford

Nebraska College of Law: Faculty Publications

Small businesses are an important part of the United States economy. In 1996, there were about 5.5 million small businesses in the United States employing between zero and five hundred workers, about 99% of all non-farm U.S. businesses. Businesses with five hundred or fewer employees employ 53% of the private non-farm work force in the United States, account for 47% of all sales, and are responsible for 51% of the private gross domestic product. During the period 1992 to 1996, small firms with fewer than five hundred employees also created virtually all of the net new jobs in the U.S. …

On Liberty And Life In Babylon: A Pilgrim's Pragmatic Proposal, Richard F. Duncan

Nebraska College of Law: Faculty Publications

My purpose here is not to present a grand theory of the role of Christians in society. Nor is my goal to convince you that Christians should embrace libertarianism as a political theory or Biblical principle for all times and all places. I am neither a theologian nor a political scientist. I write as a sinner who has accepted Christ as Savior and as Lord, as a husband of a Christian wife, as a father of five children, and as an academic lawyer who teaches and writes about constitutional law. Although this essay is addressed to fellow "pilgrims" wandering in …

Review Of Reason In The Balance: The Case Against Naturalism In Science, Law And Education, By Philip E. Johnson. Downers Grove, Ill.: Intervarsity Press, 1995, Richard F. Duncan

Nebraska College of Law: Faculty Publications

Book review of Reason in the Balance: The Case against Naturalism in Science, Law and Education, by Philip E. Johnson. Downers Grove, Ill.: InterVarsity Press, 1995.

Free Exercise Is Dead, Long Live Free Exercise: Smith, Lukumi And And The General Applicability Requirement, Richard F. Duncan

Nebraska College of Law: Faculty Publications

The purpose of this article is to analyze and theorize about the general applicability standard and its impact on the free exercise of religion. At the end of the day, I will argue that free exercise is alive and well in the wake of Smith and (particularly) Lukumi.

Enjoy The Donut: A Regulatory Response To The White Paper On Preventing Invasion Of The Great Lakes By Exotic Species, Sandi Zellmer

Nebraska College of Law: Faculty Publications

The adverse economic and environmental consequences associated with the invasion and establishment of exotic species have raised significant concerns among the Great Lakes community. In September 1999, the International Joint Commission (IJC) hosted a workshop on exotic policy, drawing upon the expertise of biologists, lawyers and public officials, to consider means of preventing exotic species invasions. The White Paper on Policies for the Prevention of the Invasion of the Great Lakes by Exotic Organisms served as the centerpiece for discussion at the workshop.

The White Paper concludes that economic initiatives, such as subsidies or taxation, would be the most viable …

States, Provinces, And Cross-Border International Trade, Matthew Schaefer

Nebraska College of Law: Faculty Publications

When I visited here in 1997, I talked about the need to bind sub-federal actors like states and provinces to international obligations.1 States and provinces are large economic actors. If you took a list of the largest nations and then compared state and provincial Gross National Products (GNPs) with those, you would find that there were more than thirty states that would rank in the top fifty nations in terms of GNP. You will probably find at least two, three, or four provinces that would rank in the top fifty as well. So it is clear for economic welfare reasons …

The Individual Responsibility Model Of Retirement Plans Today: Conforming Erisa Policy To Reality, Colleen E. Medill

Nebraska College of Law: Faculty Publications

Federal retirement policy today presents a significant regulatory paradox. Numerous studies have shown that participants in retirement savings plans need retirement planning education and investment advice. Yet they receive materials that are either too basic for participants who are financially sophisticated or too sophisticated for participants who are financially illiterate. Most participants do not receive professional investment advice before they direct the investment of their retirements savings. Why? This situation is the result of regulations and rulings issued by the Department of Labor, the federal agency that interprets and enforces the Employee Retirement Income Security Act of 1974 ("ERISA").

The …

Expanding The Non-Transactional Revolution: A New Approach To Securities Registration Exemptions, C. Steven Bradford

Nebraska College of Law: Faculty Publications

Federal securities law is in the midst of a revolution. Since 1933, the registration of securities offerings under the Securities Act of 19331 (the "Securities Act") and the exemptions from the registration requirement have rested on the elusive concept of "transaction." The transactional system has three foundational elements: (1) current registration of discrete offerings-- the idea that an issuer may register only discrete offerings of securities planned to be sold in the immediate future; (2) resale restrictions arising out of the underwriter concept-- the idea that securities acquired in an exempted offering are not freely resalable; and (3) …

Multiple Personality Disorder, Accountable Agency, And Criminal Acts, Robert F. Schopp

Nebraska College of Law: Faculty Publications

Smedley Wormwood is an accountant who is indicted for embezzling funds from the company for which he works. He generally presents an impression of an unobtrusive, conventional, compliant, "vanilla" individual. When his lawyer interviews him about the charges, Smedley seems innocent, frightened, and bewildered. In discussing the details of events around the time of the alleged crime, Smedley becomes somewhat vague and then admits to some lapses in recall. Smedley then startles the lawyer by apparently undergoing a marked change in attitude, tone of voice, and apparent self-identity. The lawyer realizes that she is now discussing the crime with a …

Parental Opt-Outs In Nebraska Schools: Respecting Freedom Of Thought, Parental Rights, And Religious Pluralism, Richard F. Duncan

Nebraska College of Law: Faculty Publications

Suppose a public school requires all students in a certain grade to read a particular book or take part in a particular lesson that some parents object to on the basis of religious or other conscientious grounds. Should the school excuse the children of objecting parents from the required readings or lessons? Must the school grant the requested opt-out accommodation?

I believe the answer to the first question, which is a public policy issue, is that there are many good reasons for public schools to be liberal in accommodating religious and conscientious objections to required curricular materials and lessons. I …

The Devil, The Details, And The Dawn Of The 21st-Century Administrative State: Beyond The New Deal, Sandi Zellmer

Nebraska College of Law: Faculty Publications

More than half a century has passed since the New Deal, the era known for ushering in the modem administrative state, where broad-sweeping regulatory powers were delegated to over a dozen new executive agencies pursuant to a raft of social legislation. Until the later years of the New Deal, courts were highly suspicious of socially progressive legislation, and, for that matter, any legislation that upset common law systems supporting private property rights and freedom of contract. Regulatory enactments were especially vulnerable to invalidation for delegating policy-making authority to an executive agency or other non-legislative entity. Such delegations were considered a …

The Virtues Of "Command And Control" Regulation: Barring Exotic Species From Aquatic Ecosystems, Sandi Zellmer

Nebraska College of Law: Faculty Publications

The Clean Water Act asserts the ambitious goal of eliminating water pollution and protecting the chemical, physical, and biological integrity of U.S. waters. Yet the EPA, in enforcing the Act, currently exempts from regulation a significant source of pollution in U.S. waters: ballast-water discharges from commercial shipping vessels. Ballast water from commercial vessels is a primary vector for the introduction of exotic plant and animal species into U.S. waters. The invasion of these species poses an increasing threat to native biodiversity; the invaders prey directly on native fish and wildlife, compete for food and habitat, and introduce disease and parasites …

Conserving Ecosystems Through The Secretarial Order On Tribal Rights, Sandi Zellmer

Nebraska College of Law: Faculty Publications

American Indian nations successfully manage habitat for wildlife species on reservation lands through tribal law and through traditional cultural practices. Beyond reservation boundaries, many tribes are involved in managing wildlife habitat through cooperative management agreements with federal and state agencies. Tribes do this because wildlife is important to them for cultural, economic and religious reasons, not because they are required to do so by the Endangered Species Act (ESA), 16 U.S.C. $§ 1531-1544. Nevertheless, the ESA looms over Indian Country like the sword of Damocles: While the Act contributes to the conservation of tribal wildlife resources by imposing federal penalties …

Costing Child Protective Services Staff Turnover, Michelle Graef, Erick L. Hill

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

This article details the process used in one state to determine the financial costs to the child welfare agency accrued over the course of one year that were directly attributable to CPS staff turnover. The formulas and process for calculating specific cost elements due to separation, replacement and training are provided. The practical considerations inherent in this type of analysis are highlighted, as well as the use of this type of data to inform agency human resource strategies.

The Structure And Properties Of Methylenetetrahydrofolate Reductase From Escherichia Coli Suggest How Folate Ameliorates Human Hyperhomocysteinemia, Brian D. Guenther, Christal A. Sheppard, Pamela Tran, Rima Rozen, Rowena G. Matthews, Martha L. Ludwig

Nebraska College of Law: Faculty Publications

Elevated plasma homocysteine levels are associated with increased risk for cardiovascular disease and neural tube defects in humans. Folate treatment decreases homocysteine levels and dramatically reduces the incidence of neural tube defects. The flavoprotein methylenetetrahydrofolate reductase (MTHFR) is a likely target for these actions of folate. The most common genetic cause of mildly elevated plasma homocysteine in humans is the MTHFR polymorphism A222V (base change C677→T). The X-ray analysis of E. coli MTHFR, reported here, provides a model for the catalytic domain that is shared by all MTHFRs. This domain is a β₈α₈ barrel that binds FAD …

Purification And Properties Of Nadh-Dependent 5,10-Methylenetetrahydrofolate Reductase (Metf) From Escherichia Coli, Christal A. Sheppard, Elizabeth E. Trimmer, Rowena G. Matthews

Nebraska College of Law: Faculty Publications

A K-12 strain of Escherichia coli that overproduces methylenetetrahydrofolate reductase (MetF) has been constructed, and the enzyme has been purified to apparent homogeneity. A plasmid specifying MetF with six histidine residues added to the C terminus has been used to purify histidine-tagged MetF to homogeneity in a single step by affinity chromatography on nickel-agarose, yielding a preparation with specific activity comparable to that of the unmodified enzyme. The native protein comprises four identical 33-kDa subunits, each of which contains a molecule of noncovalently bound flavin adenine dinucleotide (FAD). No additional cofactors or metals have been detected. The purified enzyme catalyzes …

Random Questions About Law School And The Law: The World's First Socratic Law Review Article, C. Steven Bradford

Nebraska College of Law: Faculty Publications

Many law professors utilize the Socratic method in their teaching, presumably because wisdom is to be found in the questions them selves. Yet, no law professors use the Socratic method in their writing. Why? I believe it is a wise marketing decision by law professors. Anyone off the street can read a law review article, and receive its wisdom for free. If law professors disclosed their full Socratic wisdom in law reviews, no one would come to law school, and law professors would be unemployed. By withholding their Socratic questions from law reviews, law professors have forced students to pay …

Expanding The Investment Company Act: The Sec's Manipulation Of The Definition Of Security, C. Steven Bradford

Nebraska College of Law: Faculty Publications

The Securities and Exchange Commission (SEC) is sometimes accused of using the administrative process "to graft new, substantive standards and obligations onto existing statutes or SEC rules." Through the use of the no-action letter process, the SEC staff sometimes creates substantive securities law which is inconsistent with the relevant federal securities statutes and case law. Many of these staff positions "go far beyond reasonable and fair explanations of existing statutes or SEC rules." However, in substantive areas lacking definitive case law or rules, these no-action letters assume an extraordinary importance to securities lawyers and regulated entities. For all practical purposes, …

Food Safety Regulations - Cross-Border Implications - A U.S. Perspective, Matthew Schaefer

Nebraska College of Law: Faculty Publications

The United States and Canada are largely in agreement on food safety regulation issues. So, let me set up the debate between several parties not in the room. The debate at the time the Sanitary & Phytosanitary (SPS) Agreement was concluded was between the Office of the United States Trade Representative (USTR) and some consumer advocates, like Ralph Nader, and expresidential candidates, like Pat Buchanan. The claim by the USTR was that the SPS Agreement would allow an increase in trade by eliminating protectionist barriers under the guise of food safety standards while still allowing the United States to maintain …

The "Grey Areas" And "Yellow Zones" Of Split Sovereignty Exposed By Globalization: Choosing Among Strategies Of Avoidance, Cooperation, And Intrusion To Escape An Era Of Misguided "New Federalism", Matthew Schaefer

Nebraska College of Law: Faculty Publications

Numerous commentators claim that globalization is injuring U.S. federalism. However, it is the strategies that governments in the United States are pursuing in response to globalization that are diminishing the values of federalism rather than any aspect of globalization itself.

The analysis and critique of the U.S. federal and state government strategies reveal that the United States is in danger of adopting a misguided notion of "new federalism." The strategies pursued by the governments in the United States preserve and promote the autonomy of states in a manner that allows for policies creating negative externalities, beggar-thy-neighbor policies, and other sub-optimal …

Hipaa And Its Related Legislation: A New Role For Erisa In The Regulation Of Private Health Care Plans?, Colleen E. Medill

Nebraska College of Law: Faculty Publications

The enactment of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and its related legislation, the Newborns' and Mothers' Health Protection Act of 1996 (NMHPA) and the Mental Health Parity Act of 1996 (MHPA) (hereinafter collectively referred to as "HIPAA and its related legislation") signals a possible new role for the Employee Retirement Income Security Act of 1974 (ERISA), the federal law governing private health care plans. HIPAA and its related legislation represent a broadening, in the private health care context, of ERISA's Title I protective provisions from disclosure and fiduciary administration requirements to substantive benefit and coverage …

The Sec's New Regulation Ce Exemption: Federal-State Coordination Run Rampant, C. Steven Bradford

Nebraska College of Law: Faculty Publications

The Securities and Exchange Commission ("SEC") recently adopted a novel exemption from the registration requirements of the Securities Act of 1933. This new exemption, Regulation CE, contains a single rule, Rule 1001, that exempts from registration "[o]ffers and sales of securities that satisfy the conditions of paragraph (n) of Sec. 25102 of the California Corporations Code ...." California section 25102(n), in turn, exempts offerings to "qualified purchasers" and includes a "test-the- waters" provision that allows issuers to solicit purchasers in writing, even if non-qualified investors receive the solicitation.

Regulation CE is part of the SEC's continuing effort to ease the …

Integrating Restorative Justice And Therapeutic Jurisprudence, Robert F. Schopp

Nebraska College of Law: Faculty Publications

Thomas Scheff describes and endorses community conferences intended to develop dispositions of some criminal cases that promote individual and community interests in a manner consistent with Restorative Justice (RJ). He suggests that the research program known as Therapeutic Jurisprudence (TJ) might provide a useful structure for RJ, but he does not provide detailed discussion of the proposed integration of RJ and TJ. This comment clarifies and examines some potentially interesting aspects of such an integration. Section II sketches some central features of TJ and of RJ, and section III considers potential applications of the former to the latter.

Methylenetetrahydrofolate Reductase And Methionine Synthase: Biochemistry And Molecular Biology, R. G. Matthews, Christal A. Sheppard, C. Goulding

Nebraska College of Law: Faculty Publications

Methylenetetrahydrofolate reductase and cobalamin-dependent methionine synthase catalyze the penultimate and ultimate steps in the biosynthesis of methionine in prokaryotes, and are required for the regeneration of the methyl group of methionine in mammals. Defects in either of these enzymes can lead to hyperhomocysteinemia. The sequences of the human methylenetetrahydrofolate reductase and methionine synthase are now known, and show clear homology with their bacterial analogues. Mutations in both enzymes that are known to occur in humans and to be associated with hyperhomocysteinemia affect residues that are conserved in the bacterial enzymes. Structure/function studies on the bacterial proteins, summarized in this review, …

From Loving To Romer: Homosexual Marriage And Moral Discernment, Richard F. Duncan

Nebraska College of Law: Faculty Publications

The dual-gender marriage requirement does not treat men and women unequally. Instead, it recognizes and celebrates the physical differences between men and women and their obvious sexual complementarity. Traditional marriage laws do not discriminate on the basis of gender; rather, they recognize the equal indispensability of both genders to the institution of marriage. The dual-gender requirement, like the decision in Loving, is animated by a moral sense that discerns the true nature of marriage. As Justice Ginsburg put it so well, most people understand that the two sexes are not fungible and that dual-gender marriages and same-sex unions are …

"They Call Me 'Eight Eyes'": Hardwick'S Respectability, Romer'S Narrowness, And Same-Sex Marriage, Richard F. Duncan

Nebraska College of Law: Faculty Publications

Justice White's landmark opinion in Hardwick has survived both the test of time and the many slings and arrows of outraged scholarship launched at it by law professors who believe the Constitution should be interpreted as codifying the Kama Sutra. The eminent respectability and rightness of Justice White's methodology and reasoning in Hardwick was completely vindicated in Glucksberg, the Supreme Court's latest--and one of its most significant--decisions on the meaning of fundamental rights protected by substantive due process.

In Glucksberg, the Supreme Court reaffirmed an objective historical methodology based upon a careful and precise description of the asserted liberty …

Indian Lands As Critical Habitat For Indian Nations And Endangered Species: Tribal Survival And Sovereignty Come First, Sandi Zellmer

Nebraska College of Law: Faculty Publications

The conservation of imperiled wildlife species, a fundamental objective of the Endangered Species Act ("ESA"), conflicts, at times, with the United States' responsibilities to promote American Indian rights to govern and develop reservation lands and resources. Critical habitat designation in Indian Country poses a near irreconcilable conflict. Designation effectively "zones" areas within Indian Country for the benefit of a single listed species in accordance with federal -- not tribal -- prerogatives. As such, designation is a direct affront to tribal sovereignty. Designation can severely restrict a tribe's ability not only to govern, but also to conserve and utilize its land, …

Third Circuit Holds That Prayer At Graduation Is Unconstitutional Even If It Results From A Student Vote, Richard E. Moberly

Nebraska College of Law: Faculty Publications

Despite the Supreme Court's 1992 holding in Lee v. Weisman that state-sponsored prayer during a public school graduation ceremony violates the Establishment Clause, the issue of graduation prayer has recently resurfaced. Seeking to avoid Lee's prohibition, school boards have allowed students to decide by majority vote whether prayer will occur at graduation. The Third Circuit recently held, however, that these state-authorized student referenda regarding prayer violate the Establishment Clause. In ACLU v. Black Horse Pike Regional Board of Education, the court properly recognized the danger that popular votes could pose to the protections of the Establishment Clause, yet …

Searching For Pareto Gains In The Relationship Between Free Trade And Federalism: Revisiting The Nafta, Eyeing The Ftaa, Matthew Schaefer

Nebraska College of Law: Faculty Publications

Is devolution of power to sub-national governments by the constitution of federal states or by delegation in other nations a threat to maximizing the benefits of free trade within the Americas? Conversely, is the drive towards regional free trade a threat to the goals of federalism and decentralization? These are two of the many questions that arise in revisiting NAFTA and eyeing the successful creation of a Free Trade Agreement of the Americas (FTAA) by the year 2005, an initiative launched by thirty-four nations within the region in December 1994.

Part I of this Article first defines federalism and distinguishes …