Law Commons^™

From Zero-Sum To Economic Partners: Reframing State Tax Policies In Indian Country In The Post-Covid Economy, Pippa Browde

Faculty Law Review Articles

The disparate impact COVID-19 has had on Indian Country
reveals problems centuries in the making from the legacy of
colonialism. One of those problems is state encroachment in
Indian Country, including attempts to assert taxing authority
within Indian Country. The issue of the reaches of state taxing
authority in Indian Country has resulted in law that is both
uncertain and highly complex, chilling both outside investment
and economic development for tribes.
As the United States emerges from COVID-19, to focus only on the
toll exacted on tribes and their peoples ignores the tremendous
opportunities for states to right these historical …

Waiving Federal Sovereign Immunity In Original Actions Between States, Sandra B. Zellmer

Faculty Law Review Articles

There are tremendous disparities between high stakes original actions between states before the US. Supreme Court, where there is no waiver of federal sovereign immunity, and other types of cases in the lower courts, where a plethora of immunity waivers allow states and other parties to seek relief from the federal government for Fifth Amendment takings, unlawful agency action, and tort claims. Federal actions or omissions are often at the heart of the dispute, and federal involvement may be crucial for purposes of providing an equitable remedy to the state parties, but there is no reliable mechanism for bringing the …

Confusion Over Sovereign Immunity : What Is Article Ii, Section 18 About?, Anthony Johnstone

Faculty Journal Articles & Other Writings

Sovereign and personal immunities are a complex inheritance of both constitutional and common law. Article II, Section 18 of the Montana Constitution concerns only one strand of sovereign immunity doctrine, the tort liability of the state. Although there may be good arguments in law and justice for abolition, federal and state courts have long established the sovereign and personal immunities that were untouched by the state constitutional waiver of tort liability immunity.

The Fallacy Of Judicial Supermajority Clauses In State Constitutions, Sandra B. Zellmer, Kathleen Miller

Faculty Law Review Articles

No abstract provided.

Outside Influence, Anthony Johnstone

Faculty Law Review Articles

This article considers how much outside influence matters to the constitutional analysis of state politics. It defends the political community principle applied in Bluman v. Federal Election Comm’n as an exception to the otherwise universal speaker-neutrality rule of Citizens United v. Federal Election Comm’n. It draws parallels between efforts to police national and state boundaries in politics, and the competing rights claims of outsiders to cross those boundaries and participate fully in domestic politics. The article suggests that the structural constitutional principle of political community supports certain state regulations of outside influence across a range of political activities. Part I …

The Shallows Where Federal Reserve Water Rights Founder: State Court Derogation Of The Winters Doctrine, Sandra B. Zellmer, Justin Huber

Faculty Law Review Articles

No abstract provided.

A Next, Big Step For The West: Using Model Legislation To Create A Water-Climate Element In Local Comprehensive Plans, Michelle Bryan

Faculty Law Review Articles

The West is witnessing early, important efforts to join water supply and land use planning, and the reality of climate change makes this convergence all the more critical. Local comprehensive planning presents itself as an existing and indispensable tool for unifying important planning efforts in the areas of land use, water, and climate change. As the primary regulators of land use, local governments are at the front line of regulating a myriad of environmental concerns. They are also integral partners in planning and implementing water-related initiatives alongside tribal, state, federal, and private partners. The West’s potential for broad-based action is …

Hitching Our Wagon To A Dim Star: Why Outmoded Water Codes And "Public Interest" Review Cannot Protect The Public Trust In Western Water Law, Michelle Bryan Mudd

Faculty Law Review Articles

This article examines the interrelationship between the public trust and water rights as it is emerging in western states.

Part I of this article describes the traditional public trust principles that apply to waters, as well as the modern judicial trend of extending those principles to water use permitting in the West.

Focusing on an area of particular concern in water codes, Part II analyzes the risky implications of supplanting the public trust doctrine with existing public interest review provisions.

Finally, Part III advances a water use permitting framework that better fulfills the states' public trust responsibilities. Drawing on the …

Uniform Law Commission: Group Adds 6 Acts For Montana To Consider, E. Edwin Eck

Faculty Journal Articles & Other Writings

This article reports on uniform acts proposed by the Uniform Law Commission at its annual meeting during the summer of 2010. The article then describes the qualifications required to serve as a Montana Uniform Law commissioner and how they are appointed. Next, the article explains the procedures for proposing new uniform acts. The article also reviews six specified acts that Montana's commissions identified as important for consideration: 1) Uniform Military & Overseas Voters Act; 2) Revised Uniform Limited Partnership Act; 3) Revised Uniform Limited Liability Company Act; 4) Revised Uniform Principal & Income Act; 5) Uniform Collateral Consequences of Conviction …

Book Review: A Guide To The State Constitution, Stacey L. Gordon

Faculty Journal Articles & Other Writings

No abstract provided.

Extraterritoriality Of Restrictive State Abortion Laws: States Can Abort Plans To Abort At Home But Not Abroad, Andrew King-Ries

Faculty Law Review Articles

The question of a state's authority to legislate abortion extraterritorially may appear largely academic because of the United States Supreme Court's holding in Roe v. Wade, in which the Court prohibited states from restricting abortions in the first trimester of pregnancy.' At first glance, the Supreme Court's recent decision in Planned Parenthood v. Casey' appears to remove further the issue of extraterritorial abortion legislation from the states because the decision purportedly reaffirmed Roe.3 The Casey decision, however, does not preclude returning the abortion issue to the states. An extremely tenuous coalition of justices reaffirmed Roe, while a united group of …