Law Commons^™

Oral Tradition And The Kennewick Man, Cathay Y. N. Smith

Faculty Law Review Articles

No abstract provided.

Community Rights To Public Art, Cathay Y. N. Smith

Faculty Law Review Articles

In 1932, the Rockefeller family commissioned Diego Rivera to paint an enormous mural as the centerpiece of the RCA Building lobby in Rockefeller Center in New York City. The colorful mural that Rivera painted, titled Man at the Crossroads, included images of social, political, industrial, and scientific visions of contemporary society. One night in February of 1934, the Rockefellers hired workers to chisel the mural off the wall without any warning or notice. The mural was broken into pieces before being carted away and dumped. The destruction of his mural shocked Rivera. More importantly, however, the destruction of Rivera’s mural …

Client As Subject: Humanizing The Legal Curriculum, Eduardo R.C. Capulong

Faculty Law Review Articles

In this essay, I suggest that we create a distinct field of academic inquiry: clients, in particular subordinated clients. Rising to Professor L ´ opez’s challenge, I propose that we organize the disparate strands of practice and scholarship in this area and develop a theoretical framework by which to study them.4 I attempt a modest step in that direction here. After summarizing the current conception and treatment of clients in the legal curriculum, I harness and reconceive various strands of literature and weave them into one curricular model for client studies. We are well-familiar with the ways in which most …

Montana Judicial Elections: Does The Past Hold Lessons For Future?, A. C. Johnstone

Faculty Journal Articles & Other Writings

No abstract provided.

Elaine Gagliardi On Consistent Basis Reporting: Are Proposed Regulations Consistent With Congress’S Basis For Enactment?, Elaine H. Gagliardi

Faculty Journal Articles & Other Writings

The first consistent basis returns became due June 30, 2016,2 almost one year after enactment of the filing requirement by Congress. The basis consistency rules only apply to persons filing and property reported on estate tax returns filed after July 31, 2015.3 As of the initial due date for filing Form 8971, its accompanying instructions conflicted with recently proposed regulations, leaving executors and their advisors to grapple with the ambiguities and differences.4 Comments on the proposed regulations generally call for revisions to make compliance less costly and, more importantly, reflective of the purpose underlying enactment of the basis consistency rule …

The Legal Rights Of All Living Things, Stacey L. Gordon

Faculty Journal Articles & Other Writings

This article explores the nuances in the development of environmental standing, looking especially at the cases that can inform animal law. Because animals are part of the natural environment and some statutes protecting animals, like the ESA and MMPA, are often characterized as environmental law statutes, several of the critical cases are already animal law cases, including the fundamental case of Lujan v. Defenders of Wildlife.12 For the purposes of understanding the development of standing for natural objects, Part I examines these cases in addition to traditional environmental standing cases. Part II addresses the lessons learned from those cases with …

A Blueprint For Obtaining Judicial Notice Of A Fact That Need Not Be Proven At Trial, Cynthia Ford

Faculty Journal Articles & Other Writings

No abstract provided.

The "Duh" Standard Is The Basic Premise In Montana's Rules Of Judicial Notice, Cynthia Ford

Faculty Journal Articles & Other Writings

No abstract provided.

New Approaches To Energy Development In Indian Country: The Trust Relationship And Tribal Self-Determination At (Yet Another) Crossroads, Monte Mills

Faculty Journal Articles & Other Writings

Energy development in Indian country exists at the crossroads of tribal self-determination and the federal government's trust responsibility. This article reviews the foundations of this crossroads, describes recent developments, and analyzes pending proposals that may enhance both tribal sovereignty and energy development in Indian country.

The Federalist Safeguards Of Politics, Anthony Johnstone

Faculty Law Review Articles

This Article argues that states do and should play as important a role as the federal government in articulating and implementing the law governing state political processes, or in formal terms, their republican forms of government.20 The argument has four parts. Part I introduces the basic meaning of the guarantee and its amendment. Beyond a consensus that holds our republicanism to require basic political equality, various perfectionist conceptions of a republican form of government diverge, giving way to the essential pluralism of republican governments in a federal system. Part II explains how the Supreme Court, Congress, and the Executive are …

Professor Elaine Gagliardi On The Magical Power Of Appointment: Allows Trustor To Achieve Targeted Tax Consequences And Flexibility Of Control, Elaine H. Gagliardi

Faculty Journal Articles & Other Writings

As children, and sometimes as adults, we wish for magical powers to order the world in the way we want. Estate planners can make that wish come true for some clients and beneficiaries with judicious use of powers of appointment. Powers of appointment are uniquely suited to achieving targeted planning goals and increasing trust flexibility. Planning techniques, old and new, including the oft used Crummey trust1 and the more recently developed array of acronym trusts designed to achieve specific tax consequences, such as the intentionally defective grantor trust (IDGT)2 and the Delaware incomplete non-grantor trust (DING)3 to name a few, …

Editorial Board, Montana Law Review

MLR Editorial Boards

Editors-in Chief Nicholas LeTang Constance Van Kley Executive Editors Kristen Meredith Megan Timm Symposium Editors Brandon Shannon Caitlin Williams Articles Editors Luc Brodhead Marin Keyes Online Editor Brian Geer Business Editor Elijah Inabnit Intake Editor Connor Walker Staff Erik Anderson Katy Brautigam Tim Brothwell Morgan Changler Victoria Dettman Emily Gutierrez Dillon Haskell Cori Losing Molly McCarty Rachel Pannabecker Hannah Wilson Faculty Advisor Anthony Johnstone

Vawa 2013'S Right To Appointed Counsel On Tribal Court Proceedings- A Rising Tide That Lifts All Boats Or A Procedural Windfall For Non-Indian Defendants, Jordan Gross

Faculty Law Review Articles

This Article addresses a question that seems like it would be easy to answer, but is actually quite complex-when is an indigent defendant entitled to counsel at the public's expense in the United States? The answer is complex because it depends on what the indigent is charged with, what sentence he receives, and who prosecutes him. The Sixth Amendment guarantees an accused the assistance of counsel in "all criminal prosecutions."' The Supreme Court has said that the Sixth Amendment right to counsel includes the right to effective assistance of counsel, and the right to appointed counsel at public expense for …

A Next, Big Step For The West (Part Ii): Model Water-Climate Enabling Legislation With Commentary, Michelle Bryan, Zach Coccoli, Graham Coppes, Dylan Desrosier

Faculty Law Review Articles

This model legislation is the culmination of an earlier work, A Next, Big Step for the West: Using Model Legislation to Create a Water- Climate Element in Local Comprehensive Plans.' That articleargues that local governments, as the primary regulators of land use and population planning, are integral to our climate and drought response in the West. That article then calls for a new, freestanding "waterclimate element" in local government comprehensive plans that integrates the often disparate realms of land use, water use, and climate planning and better prepares communities for "managing water in wise, resilient, and collaborative ways."2 This approach …

Lessons From The Wolf Wars: Recovery V. Delisting Under The Endangered Species Act, Martha C. Williams

Faculty Law Review Articles

This article uses the fundamentals of the ESA to remind us why Congress passed the ESA. It applies those fundamentals and their focus on recovery of species in peril, to the wolf wars, the decades long legal battles over the reintroduction, recovery, and delisting of wolves culminating in two cases, Defenders of Wildlife v. Jewell (Wyoming case) and Humane Society of the U.S. v. Jewell (Western Great Lakes case). Applying the ESA’s focus on species recovery to the wolf wars demonstrates where the disconnect between recovery and delisting occurs.

Part 1 of this article sets out the fundamentals of the …

Fiduciary Capacity And The Bankruptcy Discharge, Jonathon S. Byington

Faculty Law Review Articles

Bankruptcy law has fiercely competing policies. A primary one is the debtor's fresh start. Another is that discharge of debt is a selectively conferred privilege rather than an unlimited right. This latter policy is manifested in part by the Bankruptcy Code's exceptions to discharge. One exception involves a debt "for . . . defalcation while acting in a fiduciary capacity."1 In 2013, the Supreme Court addressed the meaning of the term "defalcation" and established a new, heightened mental standard based on the Model Penal Code's definition of recklessly.2 The meaning of the term "fiduciary capacity" is not clear. This Article …