Legal Studies Commons^™

Does Size Matter? An Economic Analysis Of Small Business Exemptions From Regulation, C. Steven Bradford

Nebraska College of Law: Faculty Publications

The author examines whether exemptions for small businesses and small transactions that appear in many regulations are economically efficient. The cost of regulation has both variable and fixed components. As demonstrated by many empirical studies of regulatory compliance costs, the fixed costs of regulation, and some of the variable costs, are subject to economies of scale that benefit larger firms and larger transactions. Though it is harder to measure the benefits of regulation, the benefits of regulation generally vary in proportion to the size of the regulated firm or transaction. The author develops a mathematical model of how the costs …

The Cost Of Regulatory Exemptions, C. Steven Bradford

Nebraska College of Law: Faculty Publications

Government regulations, whether they appear in statutes or administrative rules, often contain exemptions: certain persons or transactions are fully or partially excused from complying with the regulatory scheme. Even regulations without explicit exemptions may be worded in such a way as to implicitly exempt certain persons. A rule that applies to "all green objects" implicitly exempts objects of every other color?

Economists and legal scholars have written dozens of analyses of the efficiency of various government regulations but, with a few exceptions, they have not paid much attention to exemptions from those regulatory requirements. The limited economic and legal literature …

A New Corps Of Discovery For Missouri River Management, Sandi Zellmer

Nebraska College of Law: Faculty Publications

The Missouri River is representative of a nationwide phenomenon. The Law of the River is evolving from water quantity allocation, reflecting well-settled prior appropriation law and decades-old interstate compacts to broader ecologically-based requirements. From sturgeon to salmon to silvery minnows, every major river system in western United States is now managed, at least in part, pursuant to contemporary environmental legislation, which has begun to eclipse traditional water law. Just look to the Rio Grandel6 and the Klamath River17 for the extensive changes wrought by the ESA. The need for river restoration in order to meet ecological needs has been a …

The Americans With Disabilities Act In Cyberspace: Applying The “Nexus” Approach To Private Internet Websites, Richard E. Moberly

Nebraska College of Law: Faculty Publications

Although the nexus approach presents the best alternative to applying the ADA to a situation not contemplated by Congress, by relying on it, this Article makes value judgments and draws conscious conclusions regarding the nature of the Internet and how (and whether) our laws should be interpreted to accommodate the Internet’s unique role in our society. For example, this Article asserts that the ADA cannot apply to all Internet websites because the statute applies only to physical places of public accommodation. A judgment regarding the essence of the Internet is, of course, imbedded in this conclusion. The Internet is something …

Long-Term Employment Agreements With In-House Counsel: Employment Security Or Ethical Quagmire?, Richard E. Moberly, John Hutchins

Nebraska College of Law: Faculty Publications

The relationship between a company and its in-house corporate counsel involves a fragile mixture of the corporate counsel’s fiduciary obligations as the company’s attorney and the company’s legal and contractual responsibilities as the attorney’s employer. Although these roles and expectations often blend smoothly, the relationship can become problematic when the corporate counsel’s position as an attorney conflicts with the counsel’s status as an employee. Put another way, when a company’s expectations as a client are at odds with its responsibilities as an employer, the relationship between the employer-client and the employee-attorney can become strained and expose each to difficulty, if …

Managing Interjurisdictional Waters Under The Great Lakes Charter Annex, Mark Squillace, Sandi Zellmer

Nebraska College of Law: Faculty Publications

In spring 1998, the Nova Group of Sault Ste. Marie, Ontario, proposed to ship nearly 160 million gallons of Lake Superior water annually via tanker to Asia. See INTERNATIONAL JOINT COMMISSION, PROTECTION OF THE WATERS OF THE GREAT LAKES: FINAL REPORT TO THE GOVERNMENTS OF CAVADA AND THE UNITED STATES 44 (2000) (2000 IJC Report). Nova's proposal coincided with declining water levels in the Great Lakes, and the resulting public outcry and pressure from other Great Lakes governments persuaded Ontario to revoke Nova's permit just a few months later. The Nova proposal prompted the eight American states and two Canadian …

The Right To Education Under The South African Constitution, Eric Berger

Nebraska College of Law: Faculty Publications

The South African Constitution epitomizes a new breed of modern constitution, enshrining socioeconomic rights rather than only "negative" liberties. Among these is the right to education. However, despite the Constitution's progressive values, many South African schools remain inadequate. This Note argues that, given the opportunity, the South African Constitutional Court should hold the current educational system unconstitutional as applied to the worst schools. Constitutional text, purpose, and precedent, indeed, mandate this outcome. Moreover, vindicating the constitutional right to education will help South Africa attain other social and economic goals. However, in keeping with its other socioeconomic rights cases, the Court …

Multijurisdictional Practice For A Multijurisdictional Profession, Susan Poser

Nebraska College of Law: Faculty Publications

The issue of multijurisdictional practice ("MJP") concerns whether, and to what extent, lawyers can practice law in states in which they are not licensed. Under current law in Nebraska and almost every other state, it may be a violation of both the ethics rules and state law for a lawyer not licensed in that state to engage in activity that constitutes the practice of law, even on a temporary basis. This is law that is no longer practical or necessary and Nebraska should now consider modifying it.

Challenging The Four "Truths" Of Personal Social Security Accounts: Evidence From The World Of 401(K) Plans, Colleen E. Medill

Nebraska College of Law: Faculty Publications

This Article discusses the final recommendations of the President's Commission to Strengthen Social Security concerning the proposed creation of a system of personal Social Security accounts. The Article critically evaluates the Commission's findings (the four "Truths") in light of numerous research studies concerning participant-directed 401(k) plans. The Article claims that Truth #1, the assertion that all workers will be better off in terms of total benefits from the combination of traditional Social Security and personal account benefits, is based on unrealistic assumptions concerning how workers choose to diversify their investments. The 401(k) plan research evidence suggests that, due to their …

The Improvement Of Water And Water-Dependent Resources Under The Great Lakes Charter Annex, Sandi Zellmer, David Gecas, Kori Anne Mann

Nebraska College of Law: Faculty Publications

The Governors of 8 states and Premiers of 2 Canadian provinces signed a supplementary agreement to the Great Lakes Charter on June 18, 2001. This agreement, known as the Annex or Annex 2001, established principles for a new decision making framework for reviewing proposed withdrawals of Great Lakes water. Annex 2001 is the first step toward a set of binding water management agreements to be negotiated by June 2004. Directive 3 of the Annex provides that proposals to withdraw water will not be approved unless they will produce "an improvement to the waters and water dependent natural resources of the …

Biodiversity In And Around Mcelligot's Pool, Sandi Zellmer, Scott A. Johnson

Nebraska College of Law: Faculty Publications

Through characters like farmer McElligot and the Lorax, who spoke out against the greedy Once-ler and his destructive clear-cutting practices, Theodor Geisel, a.k.a. Dr. Suess, vividly depicted the plight of many private lands and waterways in the twentieth century. Although the message still resonates with children (and adults) today, the ecological health of private land has not improved a whole lot since Geisel wrote McElligot's Pool in 1947. Don't get me wrong, there have been immense gains in industrial pollution control and in habitat preservation on public lands. Yet there is still a long way to go, particularly on private …

Termination Of Desegregation Decrees And The Elusive Meaning Of Unitary Status, Susan Poser

Nebraska College of Law: Faculty Publications

Discusses the termination of desegregation decrees and the elusive meaning of unitary status, first introducing the topic and then covering Jenkins III and providing an overview of desegregation scholarship including discretion, capacity, and legitima. Also discusses the evolution of equity, including English equity, American equity, and equity and desegregation. Explores the concepts of relevant rights and interests, focusing on Hohfeld, the interest theory of rights, and the application of the rights theory. The conclusion posits that what remains is a complicated and confused desegregation jurisprudence, and that the lines that separate desegregation from integration from diversity, if there ever were …

Waste Management In The U.S. Context: Trade Or Environmental Issue?, Matthew Schaefer

Nebraska College of Law: Faculty Publications

There are three or four general categories of "waste." There is "municipal solid waste" (the waste that comes out of households, hotels, restaurants, businesses, etc.), "hazardous waste," and "nuclear waste," the latter of which is sometimes divided into low-level and high-level nuclear waste. (My remarks today will focus almost exclusively on municipal solid waste and hazardous waste).

All of us are most familiar with municipal solid waste. Where does municipal solid waste end up? The vast majority of U.S. municipal solid waste - 57 percent - goes to landfills. Twenty-two percent of U.S. municipal solid waste is recycled, fifteen percent …

Justifying Capital Punishment In Principle And In Practice: Empirical Evidence Of Distortion In Application, Robert F. Schopp

Nebraska College of Law: Faculty Publications

Some Supreme Court opinions overturn capital sentences or reason that such sentences should be overturned due to inappropriate patterns of application, although the Justices writing these opinions apparently accept capital punishment ("CP") as constitutional in principle. In a widely-recognized opinion, Justice Blackmun announced that he would no longer accept CP as constitutional under the Eighth Amendment by stating, "I no longer shall tinker with the machinery of death." He previously accepted CP as constitutional, however, and apparently continued to see it as constitutional in principle. Three of five concurring Justices in Furman overturned the capital sentences at issue in that …

The Nebraska Death Penalty Study: An Interdisciplinary Symposium, Robert F. Schopp

Nebraska College of Law: Faculty Publications

The four papers presented in this symposium reflect upon and develop the data presented and the concerns raised during a public panel at the University of Nebraska in February 2002. That panel and this symposium were organized to promote public discussion of and reflection upon an empirical study that examined the death penalty as it has been applied in Nebraska during the last quarter of the twentieth century! Those who support the death penalty, those who oppose it, and those who remain uncertain should agree at least on the following proposition. The death penalty raises some of the most important …

The Roadless Area Controversy: Past, Present, And Future, Sandra Zellmer

Nebraska College of Law: Faculty Publications

On January 5, 2001, after more than a year of public deliberations but only a few days before leaving office, the Clinton Administration issued the Roadless Area Conservation Rule (Roadless Rule), placing one-third of all national forest lands off-limits to road construction. Opponents argue that this prohibitation creates "de facto" wilderness preserves, locking up the affected lands -- nearly 60 million acres lying almost entirely within 12 western states -- to mineral development, timber harvest, and other extractive industries.

The Roadless Rule is the subject of both ongoing litigation and reconsideration by the Bush Administration. Regardless of the outcome of …

Sustaining Geographies Of Hope: Cultural Resources On Public Lands, Sandi Zellmer

Nebraska College of Law: Faculty Publications

This Article integrates constitutional principles, statutory requirements, and federal policy governing the use and preservation of cultural resources to sketch out a decision-making framework for public land managers. Specific examples of cases where American Indian interests have been pitted against competing demands at Devils Tower National Monument, the Indian Pass area of the California Desert, and the Medicine Wheel are examined to illustrate optimal solutionssolutions allowing the greatest possible accommodation of cultural, even spiritual, interests, while protecting the resources from degradation. The conflicts at these sites, and the opportunities presented by these conflicts, show that federal agencies can adopt reasonable …

Federal States In The Broader World, Matthew Schaefer

Nebraska College of Law: Faculty Publications

I would like to take a look at how federalism affects foreign relations law in the United States. About ten years ago some scholars began questioning the foreign affairs orthodoxy, what is sometimes referred to as foreign affairs exceptionalism, in U.S. constitutional law.' They came to be known as the revisionist scholars. Three features characterize foreign affairs exceptionalism. The first feature is Executive Branch preeminence in foreign affairs, in contrast to congressional control. The second feature is judicial law making in foreign affairs. The third feature is the irrelevance of federalism. I am only going to focus in on this …

Targeted Pension Reform, Colleen E. Medill

Nebraska College of Law: Faculty Publications

The federal government's single largest tax subsidy today is for a retirement plan system voluntarily sponsored by employers. Rather, these proposals are likely to enhance the benefits of higher income employees who already have retirement plan coverage, reversing the progress that had been made during the late 1980s and early 1990s toward making the pension tax law system more equitable. I propose that Congress should close, or at least narrow, the loopholes in the pension tax law system that reduce the scope of retirement plan coverage and benefits for rank-and-file workers. The proposal for these SAFE (or SMART) defined benefit …

Stockmarket Volatility And 401(K) Plans, Colleen E. Medill

Nebraska College of Law: Faculty Publications

Argues for a judicial interpretation of ERISA that encourages employers to select a default investment option for automatically enrolled participants that is broadly diversified in the equity markets, rather than a low-earning money market fund. Another potential conflict of interest arises when an employer includes company stock as an investment option, which can lead to potential breaches of the employer's duty of loyalty under ERISA. The question presented to the federal court is whether Employer has satisfied its fiduciary duty of prudence by selecting company stock as an investment option. Policy Analysis: Employer's Duty of Prudence in Selecting Company Stock …

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 …