Legal Studies Commons^™

Recent Supreme Court Arbitration Rulings Affect Employment And Class Action Arbitrations, Kristen M. Blankley

Nebraska College of Law: Faculty Publications

The United States Supreme Court remains active in the area of arbitration law, deciding between one and three arbitration cases per term over the course of the last five or so years. Despite their recentness, many of these arbitration decisions are already considered “landmark” cases, drastically affecting the way attorneys, arbitrators, and judges approach arbitration cases. This short article recounts some of the most important arbitration decisions of the last decade, focusing on cases relating to labor and employment issues and class action issues.

The first section of this article considers cases dealing with labor and employment issues, as well …

Why I Am A Libertarian In Secular America, Richard F. Duncan

Nebraska College of Law: Faculty Publications

Argues that the selective funding of education in secular government schools guarantees religious inequality in America.

Using The Public Natural Resource Management Laws To Improve Water Pollution Anti-Degradation Policies, Sandra Zellmer, Robert Glicksman

Nebraska College of Law: Faculty Publications

The Clean Water Act’s principal goal is to “restore and maintain” the integrity of the nation's surface water bodies. The Act’s adoption was spurred largely by the perception that unchecked pollution had caused the degradation of those waters, making them unsuitable for uses such as fishing and swimming. At the time Congress passed the statute, however, some lakes, rivers, and streams had water quality that was better than what was needed to support these uses. An important question was whether the statute would limit discharges with the potential to impair these high quality waters. EPA’s anti-degradation policy sought to ensure …

Crowdfunding And The Federal Securities Laws, C. Steven Bradford

Nebraska College of Law: Faculty Publications

Crowdfunding-the use of the Internet to raise money through small contributions from a large number of investors-could cause a revolution in small-business financing. Through crowdfunding, smaller entrepreneurs, who traditionally have had great difficulty obtaining capital, have access to anyone in the world with a computer, Internet access, and spare cash to invest. Crowdfunding sites such as Kiva, Kickstarter, and IndieGoGo have proliferated, and the amount of money raised through crowdfunding has grown to billions of dollars in just a few years.

Crowdfunding poses two issues under federal securities law. First, crowdfunding sometimes involves the sale of securities, triggering the registration …

Dirty Harry Meets Dirty Diapers: Masculinities, At-Home Fathers & Making The Law Work For Families, Methodology, Beth A. Burkstrand-Reid

Nebraska College of Law: Faculty Publications

Dirty Harry Meets Dirty Diapers: Masculinities, At-Home Fathers, And Making the Law Work for Families, Methodology, Texas Journal of Women & the Law.

Full Article Text Available at: http://ssrn.com/author=1104408

Constraints On State-Level Foreign Policy: (Re) Justifying, Refining And Distinguishing The Dormant Foreign Affairs Doctrine, Matthew Schaefer

Nebraska College of Law: Faculty Publications

A reassessment of United States' constitutional constraints on state-level foreign policy is sorely needed. State engagement in foreign policy was rarely significant until the 1960s. Since that time, state involvement has rapidly expanded in both sheer magnitude and the types of activities undertaken. The most prominent and problematic among these state and local activities in the past fifty-plus years has been three waves of state and local sanction initiatives targeting countries ruled by regimes with repugnant human rights policies. In the mid-1980s, over half of the states and at least 100 localities adopted sanctions legislation against South Africa, most often …

The Federal Common Law Of Vicarious Fiduciary Liability Under Erisa, Colleen E. Medill

Nebraska College of Law: Faculty Publications

Absent a federal common law rule of vicarious fiduciary liability, a corporate employer, in its nonfiduciary capacity as the settlor of its ERISA plan, may design the documents that govern the employer's plan as a shield against fiduciary responsibility for the actions of the employer's own internal fiduciary employees. This Article explores the potential for development of another area of federal common law under ERISA - the incorporation of respondeat superior liability principles to impose ERISA fiduciary liability ("vicarious fiduciary liability") upon a corporation for the fiduciary activities of its employees or agents. This claims and remedies system requires that …

"Trophy Husbands" & "Opt-Out" Moms, Beth Burkstrand-Reid

Nebraska College of Law: Faculty Publications

Before women were "opting out" of the workforce (as depicted by the New York Times)' to stay at home with their children, a subset of fathers had already done so. The 2002 Fortune cover story titled Trophy Husbands documented the "dramatic shift afoot" of well-off, educated men leaving paid work in order to tend to the home and kids in support of their powerful wives' careers:3 "Trophy Husbands? Arm candy? Are you kidding? While their fast-track wives go to work, stay-at-home husbands mind the kids. They deserve a trophy for trading places. The article portrayed these men as taking …

The More Things Change ... : Abortion Politics & The Regulation Of Assisted Reproductive Technology, Beth Burkstrand-Reid

Nebraska College of Law: Faculty Publications

Comparing abortion and assisted reproductive technology (ART)--especially controversial techniques like cytoplasm donation--may be detrimental to both. Each technology forces society to confront the deepest issues concerning the beginning of life and, for women, forces them to consider when motherhood begins and what responsibilities might flow from it. Abortion rights advocates must push the inception of motherhood to a point as late in the gestational process as possible so as to avoid thorny issues of fetal personhood. Fertility doctors and their patients may have just as strong of an interest in recognizing an earlier start to motherhood, as a way of …

Teaching Controversial Topics, Jennifer S. Hendricks, Beth Burkstrand-Reid, June Carbone

Nebraska College of Law: Faculty Publications

At the 2009 Future of Family Law Education conference at the William Mitchell School of Law, the authors participated in a panel discussing strategies for teaching controversial topics, which focused on teaching reproductive rights and related gender issues. This essay collects some of the strategies discussed at the conference. First we address what constitutes a “controversial” legal topic, outlining the several different ways in which a topic might be or become controversial within the context of a particular class. Next, we discuss the importance of laying the groundwork, throughout the semester, for the anticipated—and unanticipated— discussions surrounding controversial topics and …

Mudslinging On The Missouri: Can Endangered Species Survive The Clean Water Act?, Sandra Zellmer

Nebraska College of Law: Faculty Publications

This Article analyzes the perceived conflict between the CWA's demand for clean water, which in some, but not all, cases means clear water, and the "no jeopardy" requirement of the Endangered Species Act (ESA), and determines that the two statutes are not in conflict at all. Under the CWA, water quality managers are tasked with creating standards that promote a river's uses. Native species habitat is one use that must be protected under the CWA, just as it must be protected under the ESA. Water quality standards should promote that use by recognizing that the Missouri River, and others like …

Throwing Precaution To The Wind: Nepa And The Deepwater Horizon Blowout, Sandra Zellmer, Joel A. Mintz, Robert Glicksman

Nebraska College of Law: Faculty Publications

On April 20, 2010, British Petroleum's ("BP") Deepwater Horizon oil platform exploded, killing eleven workers. When the platform sank to the bottom of the Gulf of Mexico two days later, oil erupted out of the riser-a 5000-foot pipe connecting the platform to the well on the ocean floor. Efforts to stem the flow failed when a safety device, the "blowout preventer," could not be activated. Finally, after a number of attempts to stop the leak, BP capped the well on July 15. Nearly five million barrels of oil were released over the course of eighty-six days, making the Deepwater Horizon …

Keeping A Secret From Yourself? Confidentiality When The Same Neutral Serves Both As Mediator And As Arbitrator In The Same Case, Kristen M. Blankley

Nebraska College of Law: Faculty Publications

As the alternative dispute resolution field has grown, parties have designed their own processes from established processes in an attempt to best serve their process needs. One such hybrid process is mediationarbitration, called “med-arb” for short. Med-arb involves a single neutral who first serves as a mediator, and if the parties reach an impasse in mediation, the neutral then serves as an arbitrator to resolve the dispute. Although the literature has given some attention to the benefits and drawbacks of med-arb, this Article examines the process in light of broad mediation confidentiality and privilege statutes. Because these laws have no …

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 …

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 …

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. …

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, …

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 …