Legal Studies Commons^™

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 …

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 …

Methylenetetrahydrofolate Reductase: Comparison Of The Enzyme From Mammalian And Bacterial Sources, Christal A. Sheppard, James S. Sumner, Phillipe Goyette, Phyllis Frosst, Rima Rozen, Rowena G. Matthews

Nebraska College of Law: Faculty Publications

Methylenetetrahydrofolate reductase catalyzes the reduction of methylenetetrahydrofolate to methyltetrahydrofolate, which serves as the methyl donor for the conversion of homocysteine to methionine in the reaction catalyzed by methionine synthase. Recent studies have provided evidence for association of a common polymorphism of methylenetetrahydrofolate reductase with elevated levels of blood homocysteine, a metabolite correlated with increased cardiovascular risk in humans. In this chapter, we review earlier studies on the properties of the mammalian enzyme, interpreting these observations in the light of the deduced amino acid sequence for the human enzyme. The catalytic portion of the human enzyme shows significant sequence homologies with …

The Narrow And Shallow Bite Of Romer And The Eminent Rationality Of Dual-Gender Marriage: A (Partial) Response To Professor Koppleman, Richard F. Duncan

Nebraska College of Law: Faculty Publications

The Supreme Court's opinion in Romer has a very narrow and shallow bite. It does not hold that homosexuals are a suspect or quasi-suspect class under the Equal Protection Clause. It does not overrule or undermine the Court's landmark decision in Bowers v. Hardwick."° It does not hold that moral disapproval of homosexual conduct is invidious or irrational, nor does it in any way state or imply-as Professor Koppelman asserts-that laws that discriminate against homosexuals are always "constitutionally doubtful ... because they will always arouse suspicion that they rest on a bare desire to harm a politically unpopular group."

The …

Wigstock And The Kulturkampf: Supreme Court Storytelling, The Culture War, And Romer V. Evans, Richard F. Duncan

Nebraska College of Law: Faculty Publications

It bears repeating that the Supreme Court's decision in Romer is of trivial doctrinal import. The Court did not recognize homosexuals as a suspect or quasi-suspect class, nor did it reverse or undermine its landmark decision in Bowers v. Hardwick. Moreover, the narrow holding of Romer suggests quite strongly that typical laws disadvantaging homosexuals--the military exclusion, the heterosexual paradigm of civil marriage, and perhaps even better-crafted and more narrow versions of Amendment 2--do not offend the Equal Protection Clause. These laws rationally advance legitimate government interests and should easily pass scrutiny under the rational basis test applied by the …

Sacrificing Legislative Integrity At The Altar Of Appropriations Riders: A Constitutional Crisis, Sandi Zellmer

Nebraska College of Law: Faculty Publications

The technique of appending substantive provisions to appropriations bills has become a favorite tool of the legislative trade in recent years. Congress has employed appropriations riders to dictate the outcome of public policy issues ranging from abortion to oil development in pristine wilderness areas. Riders have been used with particularly destructive effect to circumvent long-standing environmental policies, especially those involving the use of natural resources and public lands. In many cases, the policies affected were the result of decades of activity in Congress and in the courts, and retain broad public and legislative support. Appropriations riders have also allowed these …

The Ethics Of Implementation: Institutional Remedies And The Lawyer's Role, Susan Poser

Nebraska College of Law: Faculty Publications

The issue addressed in this article is whether and to what extent a lawyer has an ethical responsibility to pursue implementation of the remedy in institutional reform litigation. Institutional reform litigation refers to cases in which an individual or class of individuals sues a large organization in order to vindicate constitutional or statutory rights. The types of cases with which this article is concerned are the "public law" type, such as school desegregation, prisoners' rights and patients' rights cases, although included under the rubric of institutional reform can be, inter alia, antitrust, reapportionment and bankruptcy cases. The implementation stage of …

The Law Of Directed Trustees Under Erisa: A Proposed Blueprint For The Federal Courts, Colleen E. Medill

Nebraska College of Law: Faculty Publications

Situations where the direction to the trustee is made by a plan participant must be analyzed on a case-by-case basis, bearing in mind ERISA's underlying purposes and the safeguards created through the statute and its implementing regulations. The analytical approach adopted in the FirsTier Bank court decision, a literal incorporation of the common law of trusts rules into the context of ERISA, is inappropriate because in some situations more protection is needed for the plan participants than was afforded by the common law of trusts. When the direction to the trustee is made by a non-participant plan fiduciary, however, ERISA …

Transaction Exemptions In The Securities Act Of 1933: An Economic Analysis, C. Steven Bradford

Nebraska College of Law: Faculty Publications

The Securities Act of 1933 is an important restriction on capital markets in the United States. Unless an exemption is available, the Act requires companies selling securities to the public first to file with the Securities and Exchange Commission (SEC) a registration statement containing detailed information about the company, its business, its finances, and the contemplated offering. Offers cannot be made (except to underwriters) until the registration statement is filed, and the securities can be sold only after the registration statement survives the sometimes lengthy SEC review process and becomes effective. In addition, the securities seller must at some point …

Verdicts Of Conscience: Nullification And Necessity As Jury Responses To Crimes Of Conscience, Robert F. Schopp

Nebraska College of Law: Faculty Publications

Consider three types of atypical criminal defendants. The first trespasses at a nuclear weapons plant (or a segregated bus station or women's health clinic) in order to publicly protest a law or public policy represented by that facility or by the activity that occurs there. The second operates an underground railroad in violation of the Fugitive Slave Act (or smuggles South American residents into the United States or breaks into a women's health clinic in order to disable equipment and prevent scheduled abortions). The third causes the death of a loved one by disconnecting that person from life sustaining medical …

Homosexual Marriage And The Myth Of Tolerance: Is Cardinal O'Connor A "Homophobe"?, Richard F. Duncan

Nebraska College of Law: Faculty Publications

Duncan explains why he believes the heterosexual norm should be defended in what well may be the decisive moment of the sexual revolution--the battle over the meaning of marriage in human community. In particular, Duncan will focus on an aspect of this controversy that he notes often goes unnoticed--the impact of a paradigm shift on the "old order," on those who continue to affirm the conventional understanding of sexual morality and marriage.

Public Schools And The Inevitability Of Religious Inequality, Richard F. Duncan

Nebraska College of Law: Faculty Publications

This article discusses the political and social implications of current attempts to amend the Constitution to ensure "religious equality." Two specific proposed amendments to the U.S. Constitution will be analyzed--the Istook Amendment and the Hyde-Hatch Amendment. This article concludes that although the Hyde-Hatch Amendment is the more acceptable of the two, neither amendment achieves the elusive goal of ensuring religious equality.

A Candidate Genetic Risk Factor For Vascular Disease: A Common Mutation In Methylenetetrahydrofolate Reductase, P. Frosst, H. J. Blom, R. Milos, P. Goyette, Christal A. Sheppard, R. G. Matthews, G. J.H. Boers, M. Den Heijer, L. A.J. Kluijtmans, L. P. Van Den Heuvel, Rima Rozen

Nebraska College of Law: Faculty Publications

Hyperhomocysteinaemia has been identified as a risk factor for cerebrovascular, peripheral vascular, and coronary heart disease. Elevated levels of plasma homocysteine can result from genetic or nutrient-related disturbances in the trans-sulphuration or re-methylation pathways for homocysteine metabolism. 5,10-Methylenetetrahydrofolate reductase (MTHFR) catalyzes the reduction of 5,10-methylenetetrahydrofolate to 5-methyltetrahydrofolate, the predominant circulatory form of folate and carbon donor for the re-methylation of homocysteine to methionine. Reduced MTHFR activity with a thermolabile enzyme has been reported in patients with coronary and peripheral artery diseases. We have identified a common mutation in MTHFR which alters a highly-conserved amino acid; the substitution occurs at a …