Law Commons^™

"Santa Baby, Just Slip A Sable Under The Tree For Me:" Or At Least A Catchall Exception To The Hearsay Rule?, Cynthia Ford

Faculty Journal Articles & Other Writings

This article examines Montana's two rule-based "catchall" or "residual" hearsay exceptions, and a statutory exception that applies only to child declarants in criminal cases.

"As I Lay Dying:" A Halloween Meditation On The Use Of Dying Declarations In Montana, Cynthia Ford

Faculty Journal Articles & Other Writings

This article discusses the Montana hearsay exception for "dying declarations."

Street Art: An Analysis Under U.S. Intellectual Property Law And Intellectual Property's Negative Space Theory, Cathay Y. N. Smith

Faculty Law Review Articles

Street art, in its original and purest form, is artwork created without authorization, usually illegally, on either private or public property. Until recently, street art has been considered a social nuisance and is almost universally illegal, but it is now slowly becoming a “hot commodity” garnering press and social media attention. In recent years, local communities are increasingly beginning to value street art in their neighborhoods, and the art world has also caught on to the street art trend. As a result, street art is being copied and reprinted on clothing, posters, commercial items, and exhibited and sold in auction …

An Ounce Of Pretrial Prevention Is Worth More Than A Pound Of Post-Conviction Cure: Untethering Federal Pretrial Criminal Procedure From Due Process Standards Of Review, Jordan Gross

Faculty Law Review Articles

Some Federal Rules of Criminal Procedure cover purely technical matters. Some Rules, however, cover procedures with constitutional dimensions. When a federal court is interpreting a Rule that has a companion constitutional doctrine, an issue arises as to whether the Rule’s requirements are co-extensive with the constitutional protections defined by federal case law, or whether the Rule provides federal defendants a higher level of pretrial procedural protection than a post-conviction due process standard. Federal courts have been inconsistent in identifying and resolving this question of constitutional equivalency. In interpreting some pretrial Criminal Rules, federal courts make a clear distinction between the …

The Fate Of Native American Diversity In America's Law Schools, Raymond Cross

Faculty Law Review Articles

I contend that America’s law schools, through their adoption of an appropriately modified version of this community development model, will be better positioned to promote their public service and social justice missions. My goal is to demonstrate two points: first, this available diversity initiative, known popularly as Native American diversity, has succeeded in facilitating the community building efforts of eligible minority communities throughout Indian Country; and second, this diversity initiative has also reinvigorated the social justice and public service missions of those law schools that have chosen to embrace it.

My article is divided into three parts. Part I describes …

Treading Water While Congress Ignores The Nation's Environment, Sandra B. Zellmer

Faculty Law Review Articles

During the late 1960s, the nation's attention was riveted on graphic images of contaminated resources, such as smoldering rivers and oil-soaked seagulls,' as well as Rachel Carson's haunting prose about the "strange blight"2 of chemical pesticides afflicting land, water, and wildlife. Policymakers recognized the need for strong legal protections for public health and the environment, and Congress responded with sweeping legislation governing the pollution of water, air, and soil, and the demise of threatened and endangered species.3

The Clean Water Act of 1972 (CWA), which regulates discharges of pollutants into waters of the United States, is one of the most …

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.

Prior Statements In Montana: Part Ii, Cynthia Ford

Faculty Journal Articles & Other Writings

This article is part two of a two-part series on prior statements in Montana. This article examines prior consistent statements under M.R.E.. 801(d)(1)(B) and how the language of the rule is unclear and confusing, especially compared to the federal version. As a result, Montana has a myriad of case law attempting to apply the Montana rule on prior consistent statements. The article first provides background to the establishment of the rule about prior consistent statements. Next the article discusses both federal and Montana "trigger" cases and compares Montana's approach with that of the federal courts. The article then offers suggestions …

Tender Is The Night: Should Your Expert Be?, Cynthia Ford

Faculty Journal Articles & Other Writings

This article discusses the practice of tendering an expert for acceptance or certification by the court at trial in the presence of the jury. The article considers Tennessee and Montana state and federal evidence law. The author suggests that Montana courts and lawyers should comply with the A.B.A. Updated Civil Trial Standard 14 and let juries assess the testimony of a Rule 702 witness without a special designation accorded by the judge certifying a witness as an "expert" in his or her field.

In-Court Identifications Not Hearsay, Are Admissible, Cynthia Ford

Faculty Journal Articles & Other Writings

This article examines M.R.E. 801(d)(1)(C) and begins by looking at Montana case law before the rule was adopted and after it was adopted. The article follows with a look at the plethora of federal cases interpreting 801(d)(1)(C). The article points out that although Montana's version of 801(d)(1)(C) mirrors the same rule in the F.R.E, it doesn't seem that the Montana rule is used very often in reported cases. The author concludes that the rule is a good tool to escape from a hearsay objection and thereby avoid a protracted excursion into the numerous hearsay exceptions. Further, the rule applies in …

A Refresher: Mt Evidence Law Sources And Research, Cynthia Ford

Faculty Journal Articles & Other Writings

This article discusses how to locate, research, and use Montana evidence law sources.

Prior Statements In Montana: Part I, Cynthia Ford

Faculty Journal Articles & Other Writings

This article is part one of a two-part series on prior statements in Montana. In part one, the article explores Montana's approach to prior inconsistent statements under M.R.E. 801. The article states that prior inconsistent statements are clearly admissible in Montana state court trials. Once a witness has testified on the stand, anything else said on the same subject, anywhere, any time, to anyone, which outright contradicts trial testimony, or serves to fill a memory lapse on the stand, is admissible -- not just for impeachment, but also to prove the fact earlier asserted.

Rule 611(C): Where You Lead, I Will Follow, Cynthia Ford

Faculty Journal Articles & Other Writings

This article examines M.R.E. 611(c), which relates to leading questions when examining witnesses. The first part of the article discusses the purpose behind the "no-leading on direct" rule and how to tell leading from non-leading questions. Then the article offers tips for leading and non-leading questions and answers the question of why leading on cross is allowed. Lastly, the article examines how strictly the rule is observed and reviews Montana cases on 611(c).

Montana V. Federal Evidence Rules 2013: A Short Comparison, Cynthia Ford

Faculty Journal Articles & Other Writings

This article provides a short comparison of the current Federal Rules of Evidence and the Montana Rules of Evidence. It is meant to cover major differences and does not include those, in the view of the author, that are minor or inconsequential.

Editorial Board, Montana Law Review

MLR Editorial Boards

Editors-in-Chief Paul M. Leisher Jordan Peila Executive Editors Pamela Garman Dylan Jensen Articles Editors Russell Michaels Kathleen Molsberry Online Editor Michelle Vanisko Business Editor Quinton King Intake Editor Carina Wilmot Staff Samir Faerevik Aarab Caitlin Boland Thomas Bourguignon Andrea Collins Mike Dougherty Ryan Lorenz Callie Oistad Colin Phelps Erik Rathie John Wolff Faculty Advisors Anthony Johnstone Andrew King-Ries

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 …

Recalibrating Campaign Finance Law, Anthony Johnstone

Faculty Journal Articles & Other Writings

This Essay seeks to provide a theoretical framework for conceptualizing this relationship and considering reforms. Part I traces the variation of campaign finance regimes across several political eras and several jurisdictional scales. Strikingly, although similar six-figure campaign finance scandals prompted the reforms of each era, federal lawmakers in each era have drawn progressively lower one-size-fits-all contribution limits and disclosure thresholds. Meanwhile, state campaign finance laws have been more carefully calibrated to reflect the electoral and financial circumstances of particular electoral contests. Part II considers the currently permissible means and ends of campaign finance law and how they constrain the calibration …

Response: Commandeering Information (And Informing The Commandeered), Anthony Johnstone

Faculty Law Review Articles

This article is a response to Can the States Keep Secrets from the Federal Government? by Robert Mikos. The author amplifies and extends Professor Mikos's first point, which identifies the commandeering problem and suggests some limits to his second point, which proposes a judicially managed solution.

Joe Mazurek: July 27, 1948--August 29, 2012: In Memoriam, Greg Munro, Mike Mcgrath

Faculty Law Review Articles

Tribute to Joe Mazurek, long-time Montana attorney and former Montana Attorney General.

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 …

Foreword To When A Woman Campaigns: Emily Sloan's Races To Become Montana's First Female County Attorney, Bari R. Burke

Faculty Law Review Articles

This essay introduces Emily Sloan and her races to become Montana's first female county attorney.

Recalibrating Campaign Finance Law, Anthony Johnstone

Faculty Law Review Articles

This Essay seeks to provide a theoretical framework for conceptualizing this relationship and considering reforms. Part I traces the variation of campaign finance regimes across several political eras and several jurisdictional scales. Strikingly, although similar six-figure campaign finance scandals prompted the reforms of each era, federal lawmakers in each era have drawn progressively lower one-size-fits-all contribution limits and disclosure thresholds. Meanwhile, state campaign finance laws have been more carefully calibrated to reflect the electoral and financial circumstances of particular electoral contests. Part II considers the currently permissible means and ends of campaign finance law and how they constrain the calibration …

Assessing Institutional Ability To Support Adaptive, Integrated Water Resources Management, Sandra B. Zellmer, Christina Hoffman

Faculty Law Review Articles

No abstract provided.

Family Mediation After Hendershott: The Case For Uniform Domestic Violence Screening And Opt-In Provision In Montana, Eduardo R.C. Capulong

Faculty Law Review Articles

In Hendershott v. Westphal, the Montana Supreme Court held that § 40-4-301(2) of the Montana Code Annotated absolutely bars mediation in family law cases involving domestic violence. Yet neither the Court nor the statute prescribes a method by which to screen for such cases. In this article, the author argues that a uniform, statewide screening method is the only way by which to implement this policy. The author also argues that Hendershott should be interpreted narrowly and Montana should allow parties to opt in to mediation and other forms of alternative dispute resolution. The Court's understanding of domestic violence …

If Skilling Can't Get A Change Of Venue, Who Can? Salvaging Common Law Implied Bias Principles From The Wreckage Of The Constitutional Pretrial Publicity Standard, Jordan Gross

Faculty Law Review Articles

Fifty years ago, the United States Supreme Court issued three landmark decisions recognizing local pretrial publicity and community hostility in a charging venue as extraneous forces that can impact jurors’ ability to be constitutionally impartial. It later held that local prejudice can be so incompatible with a defendant’s right to an impartial jury that a trial in that community violates due process and may require a change in venue. Paradoxically, successful venue challenges under this federal constitutional pretrial publicity standard have become increasingly rare even as the volume, sensationalism, and pervasiveness of media coverage of criminal trials have increased with …

Improving Water Quality Antidegradation Policies, Sandra B. Zellmer, Robert L. Glicksman

Faculty Law Review Articles

No abstract provided.

The System Of Campaign Finance Disclosure, Anthony Johnstone

Faculty Law Review Articles

This Essay considers Professor Gilbert’s model as the core element in a dynamic system of campaign finance disclosure. First, it recognizes several useful contributions of the model’s framework of informational costs and benefits. In the simplest analysis, disclosure increases the information available to voters by adding source revelation to campaign speech. However, the reality is more complicated. Disclosure can have a chilling effect that decreases the amount of campaign speech by imposing administrative and exposure burdens on speakers. As Professor Gilbert shows, this cannot end the analysis. What matters is not just the magnitude of the chilling effect on speech, …

Foreword: The State Of The Republican Form Of Government In Montana, Anthony Johnstone

Faculty Law Review Articles

This foreword to the 2012 Browning Symposium contributes to the discussion of republican forms of government in the states by situating Montana's experience in broader themes of federal intervention in state republicanism. It serves as an epilogue to match Jeff Wiltse's prologue, which reexamines the election in 1912 that gave birth to the Corrupt Practices Act by examining the aftermath of the U.S. Supreme Court's burial of that law 100 years later.

Part I of the foreword considers the recent federal constitutional challenges that dismantled elements of the republican form of government that prevailed in Montana for the past century. …