Legal Studies Commons^™

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 …

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

Nebraska College of Law: Faculty Publications

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

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

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

Nebraska College of Law: Faculty Publications

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 Given the proliferation of RTAs since that time and the inability to roll back the clock, that policy debate has been replaced by a search for strengthened constraints on RTA activity that might ensure it complements the WTO system.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

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

Nebraska College of Law: Faculty Publications

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

Sox And Whistleblowing: The Concerns, Richard E. Moberly

Nebraska College of Law: Faculty Publications

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

Sox And Whistleblowing, Richard E. Moberly

Nebraska College of Law: Faculty Publications

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

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 …

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 …

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 …

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 …

What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, A Review Of Democracy By Decree: What Happens When Courts Run Government By Ross Sandler And David Schoenbrod; Yale University Press (2003), Susan Poser

Nebraska College of Law: Faculty Publications

A review of Democracy by Decree: What Happens When Courts Run Government by Ross Sandler and David Schoenbrod; Yale University Press (2003), in which it is questioned whether judges have the legitimacy and the capacity to oversee the remedial phase of institutional reform litigation.

A Preservation Paradox: Political Prestidigitation And An Enduring Resource Of Wildness, Sandi Zellmer

Nebraska College of Law: Faculty Publications

The nation's preeminent preservation statute, the Wilderness Act of 1964, is now 40 years old. By authorizing a network of congressionally designated wilderness areas on public lands, the Act has proved invaluable for protecting special areas from the most intensive forms of intrusion by humankind But the Act is facing a midlife crisis, and legitimate questions have been raised about its continuing viability as a conservation tool. This Article concludes that the preservation of wild lands remains an essential component of federal public lands management, but that the Wilderness Act, standing alone, has not fulfilled its promise of securing an …

The Role Of Non-Governmental Organizations In Canada-U.S. Relations, Matthew Schaefer

Nebraska College of Law: Faculty Publications

Premier Rae had mentioned this morning that disputes between Canada and the United States are not just discussed between the federal governments of the two countries. Disputes are a matter of public diplomacy and every interest group is competing for public opinion on both sides of the border. Therefore, this afternoon we can explore the various groups that are in that competition for pubic opinion and the various groups that are involved in Canada-U.S. disputes. I thought we would start with the definition of what an NGO is. We are not going to come to any conclusion on this matter …

Enron And The Pension System, Colleen E. Medill

Nebraska College of Law: Faculty Publications

The collapse of Enron and the resulting consequences for participants in the Enron pension plan represent a watershed event for the future of the modern American pension system. In terms of national notoriety, this event is similar in magnitude to two prior public scandals in the history of the pension system. The first such scandal occurred during the decade of the 1960s: the closing of the Studebaker automobile plant and the termination of its underfunded pension plan. Shortly thereafter came the second scandal, heralded by Congressional hearings revealing the misuse of plan assets for personal gain by officials of the …