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Synopses Of Past Articles In The Montana Law Review Discussing The 1972 Montana Constitutio N (1972-2009)

Montana Law Review

Articles on the Montana Constitution

The First Amendment’S Religion Clauses: The Calvinist Document That Interprets Them Both, Leah Farish Esq.

College of Arts and Cultural Studies Faculty Research and Scholarship

This paper suggests that the Westminster Confession of Faith's provisions about church and state, revised in Philadelphia at the start of the Constitution's ratifying convention, furnished much of the syntax and vocabulary for the First Amendment's religion clauses. Recognizing the cultural links between the new American government and the Presbyterian Church, the author argues that it was natural for the founders to look to how the new Westminster Confession situated church and state. The author argues that Fisher Ames's proposed wording for the First Amendment won immediate adoption because it resonated with the Confession, standing as it did in that …

Foreword, Andrew E. Taslitz

Law and Contemporary Problems

No abstract provided.

Probabilities In Probable Cause And Beyond: Statistical Versus Concrete Harms, Sherry F. Colb

Law and Contemporary Problems

Colb surfaces the "statistical versus concrete harms" disparity in judicial (and more broadly, human) reactions to probability-based behavior. In particular, it identifies the disparity in case law that either explicitly relies on the distinction as a normatively proper ground for legal decisions or that operates in a manner best explained by resort to this distinction. Though the paper is primarily descriptive, it suggests, tentatively, that lawmakers, judges, and juries should exercise greater care and deliberation in applying what may seem like a "natural" approach to distinguishing between permissible and impermissible harm. It is thus a plea for "conscious" consideration of …

Financial Options In The Real World: An Economic And Tax Analysis, David M. Hasen

Faculty Publications

Many of the consequences of issuing and purchasing options on publicly traded property have been well understood since Black and Scholes developed a model for option pricing. No model of options, however, provides an accurate economic analysis of the actual transactions that issuers and purchasers engage in when options are bought and sold. One consequenceof this gap in understanding is that the rules for taxing options remain poorly developed. This Article provides a transactional analysis of option sales for the first time. The focus is on covered options, but the analysis also has implications for options in which the underlying …

Responsibility In Negligence: Why The Duty Of Care Is Not A Duty “To Try”, Ori J. Herstein

Cornell Law Faculty Publications

Even though it offers a compelling account of the responsibility-component in the negligence standard—arguably the Holy Grail of negligence theory—it is a mistake to conceive of the duty of care in negligence as a duty to try to avert harm. My goal here is to explain why and to point to an alternative account of the responsibility-component in negligence.

The flaws in conceiving of the duty of care as a duty to try are: failing to comport with the legal doctrine of negligence and failing as a revisionary account for the law; overly burdening autonomy and restricting the liberty of …

Essay: Constitutional Commitments And Religious Identity, Bernadette Meyler

Cornell Law Faculty Publications

This essay comments on Steve Shiffrin's The Religious Left and Church-State Relations. It contends, on the one hand, that Shiffrin has valuably brought to the fore various reasons why religious believers might resist close relations between church and state. On the other hand, it argues that no fundamental connection exists between the "religious Left" and a particular position on church-state relations and that religious liberals will not necessarily be more persuasive than secular liberals in arguing against positions espoused by religious conservatives.

At Issue Waiver Of The Attorney-Client Privilege In Illinois: An Exception In Need Of A Standard, Kevin Bennardo

Northern Illinois University Law Review

This essay analyzes the "at issue" exception to the attorney-client privilege and suggests the adoption of a specified standardized test for finding the exception in Illinois. In general terms, at issue waiver of the attorney-client privilege occurs when a party pleads a claim or defense that places at issue the subject matter of privileged material over which she has control. Throughout the years, United States jurisdictions have employed four approaches for testing the application of the at issue exception, although recently the focus has been on two primary tests (the Hearn test and the anticipatory waiver test). Illinois courts have …

Making Stuff Up, Richard H. Underwood

Law Faculty Scholarly Articles

Beginning with an article in this Journal almost thirty years ago, Professor Underwood continues to research and write about legal ethics and litigation. In this Commentary, he offers a witty look at several cases where, in his opinion, the judge allowed improper arguments to the jury.

The Role Of Trust Protectors In American Trust Law, Richard C. Ausness

Law Faculty Scholarly Articles

“A trust is an arrangement whereby one person (the trustor) transfers property to another person or entity (the trustee) and directs the trustee to hold the property for the benefit of another person (the beneficiary).” These days, trustees often have significant discretionary and administrative powers. The increased use of institutional trustees, as well as the growing sophistication and complexity of modern trust asset management, have induced many settlors to give their trustees greater power and discretion. In addition, many states have enacted statutes, such as the Uniform Trustees’ Powers Act or the Uniform Trust Code (UTC), that confer broad powers …

Table Of Contents

The Journal of Law and Education

No abstract provided.

Supporting Scholarship: Thoughts On The Role Of The Academic Law Librarian, Richard A. Danner

The Journal of Law and Education

No abstract provided.

Vouchers For Students With Disabilities: The Future Of Special Education, Wendy F. Hensel

The Journal of Law and Education

No abstract provided.

Primary & Secondary Education - Commentary

The Journal of Law and Education

No abstract provided.

Supreme Court Review

The Journal of Law and Education

No abstract provided.

Primary & Secondary Education

The Journal of Law and Education

No abstract provided.

Bending Nature, Bending Law, David Owen

Faculty Publications

No abstract provided.

When Is An Alternative Forum Available? Rethinking The Forum Non Conveniens Analysis, Joel H. Samuels

Faculty Publications

No abstract provided.

Foreword: Advertising And The Law, Mark Bartholomew

Buffalo Law Review

This foreword to a special issue of the Buffalo Law Review provides an overview of seven articles addressing the intersection of advertising and law. The special issue stems from a November 2009 conference held at the University at Buffalo Law School. The foreword examines the particular difficulties in characterizing the relationship between advertisers, consumers, and the law. Advertisers promulgate certain symbolic meanings designed to induce consumption. Sometimes these meanings are contested through legal means yet consumers can only participate in advertising's regulatory apparatus indirectly. This results in a dynamic between advertiser and consumer that is difficult to define yet ubiquitous …

Stream Access In Montana And The Dispute Over Public Recreation On The Mitchell Slough, Tyson Radley O'Connell

Montana Law Review

Stream Access in Montana

Closing The Courthouse Doors: Transcript Of The 2010 Honorable James R. Browning Distinguished Lecture In Law, Erwin Chemerinsky

Montana Law Review

Closing the Courthouse Doors

Denmark's Achievement Of Energy Independence: What The United States Can Learn, Maya Kaplan

Cardozo Journal of International and Comparative Law

The note contrasts Denmark's successful energy policy with the United States' less effective approach, arguing that Denmark's sustained, broad-based strategy—featuring strict enforcement, tax incentives, and community involvement—offers a model for the U.S. to reduce oil dependency and promote renewable energy. The analysis emphasizes the importance of consistent policy measures and the integration of environmental and social costs into energy pricing to achieve long-term economic and environmental benefits.

Litigating The Ghost Of Gideon In Florida: Separation Of Powers As A Tool To Achieve Indigent Defense Reform, Wayne A. Logan

Scholarly Publications

This paper, part of a symposium addressing indigent defense-related issues, examines litigation challenging a Florida law that expressly prohibits courts from granting public defender motions to withdraw on the basis of an alleged conflict of interest caused by excessive caseload or underfunding.

Agency Culture And Conflict: Federal Implementation Of The Indian Gaming Regulatory Act By The National Indian Gaming Commission, The Bureau Of Indian Affairs, And The Department Of Justice, Kevin Washburn

Faculty Scholarship

Indian gaming provides a lens through which to consider the implications of divided federal executive power. The Indian Gaming Regulatory Act is implemented by at least three federal agencies, each of which has somewhat different interests. Moreover, none of these agencies is monolithic and each must reconcile competing interests within its own domain. In examining the culture of three federal agencies, the author seeks to shed light on divided executive branch governance. The article briefly addresses three different issues: the 'independence' of an independent agency, the NIGC, which lacks litigating authority; the problem with shared subject matter jurisdiction by DOJ …

Roll Over Langdell, Tell Llewellyn The News: A Brief History Of American Legal Education, Stephen R. Alton

Faculty Scholarship

The origin of this essay is a presentation the author made at the Office of the Attorney General of the State of Texas on December 10, 2008. This essay is derived from the author's presentation, which originally was entitled "A Brief and Highly Selective History of American Legal Education and Jurisprudence. " In this essay, the author provides an overview of the history and development of legal education in America, emphasizing the establishment and evolution of the case method of instruction in American law schools and focusing on the influence of American jurisprudence on the development of legal education in …

Attention Must Be Paid: Commercial Speech, User-Generated Ads, And The Challenge Of Regulation, Rebecca Tushnet

Buffalo Law Review

No abstract provided.

Stealth Marketing And Antibranding: The Love That Dare Not Speak Its Name, Sonia K. Katyal

Buffalo Law Review

No abstract provided.

Brandjacking On Social Networks: Trademark Infringement By Impersonation Of Markholders, Lisa P. Ramsey

Buffalo Law Review

No abstract provided.

Advertising And Social Identity, Mark Bartholomew

Buffalo Law Review

This essay takes a stand in the brewing legal academic debate over the consequences of advertising. On one side are the semiotic democratists, scholars who bemoan the ability of advertisers to take control of the meanings that they create through trademark law and other pro-business legal rules. On the other side are those who are more sanguine about the ability of consumers to rework advertising messages and point to several safety valves for free expression existing in the current advertising regulation regime. My take on this debate is that the participants have failed to address the impact of advertising on …

Consumer Counter-Advertising Law And Corporate Social Responsibility, Alberto R. Salazar V.

Buffalo Law Review

No abstract provided.