Law Commons^™

The Judge William B. Jones And Judge Edward A. Tamm Judicial Lecture Series, E. Edwin Eck

Montana Law Review

The Judge William B. Jones and Judge Edward A. Tamm Judicial Lecture Series

An Essay On Takings, Matthew Clifford, Thomas Huff

Montana Law Review

An Essay on Takings

Viatical Settlements In Montana: New Legislation Serves The Terminally Ill, Bernard A. Jacobs

Montana Law Review

Viatical Settlements in Montana: New Legislation Serves the Terminally Ill

Settlement Or Release Under Montana's Multiple Defendant Statute, Solomon Neuhardt

Montana Law Review

Settlement or Release Under Montana's Multiple Defendant Statute

Judicial Opinions Involving Health Insurance Coverage: Trompe L'Oeil Or Window On The World?, William M. Sage

Faculty Scholarship

This essay offers a few thoughts about using judicial decisions as the dataset for research into health insurance coverage. Part I offers a general overview of insurance coverage law. Part II considers why students of health insurance coverage gravitate toward studying published opinions. Part III then discusses what is wrong with the approach, and suggests alternatives. Finally, Part IV turns to what may be right with the approach, concluding that judicial opinions in coverage litigation may reveal the functionality (or dysfunctionality) of the coverage process in managed care. Although the basic critique which the essay presents applies to areas other …

The Abcs Of Adr: Making Adr Work In Your Court System, Nancy A. Welsh, Barbara Mcadoo

Faculty Scholarship

So you are thinking about making Alternative Dispute Resolution (ADR) a part of your existing statewide judicial process-but you don't know how. You want to provide litigants with alternative ways to resolve their disputes, through processes such as mediation, arbitration, and summary jury trials. In fact, you have been experimenting with these processes on an ad hoc basis and have had quite a few successes. You think you could accomplish even more if you made ADR a routine part of the judicial process. But you are cautious about the role that your state court system should take in promoting and …

Restorative Justice – A Conceptual Framework, Jennifer Llewellyn, R. Howse

Articles, Book Chapters, & Popular Press

Restorative justice has become a fashionable term both in Canadian and foreign legal and social policy discourse. Restorative justice is certainly not a new idea. In fact, it is foundational to our very ideas about law and conflict resolution. There is, nevertheless, a lack of clarity about the meaning of this term. Often it is used as a catchall phrase to refer to any practice which does not look like the mainstream practice of the administration of justice, particularly in the area of criminal justice. Little attention has been spent attempting to articulate what distinguishes a practice as restorative. Rather, …

What Should Lawyers Know About Economics, Robert Whaples, Andrew P. Morriss, John C. Moorhouse

Faculty Scholarship

To find out what law-and-economics scholars and economists think lawyers should know about economics, we conducted surveys of random samples of members of the American Law and Economics Association and the American Economic Association. We posed two questions to both groups: What do you think are the five most important economic concepts law students ought to learn in a law-and-economics course?

Law-and-economics courses sometimes include economics articles in their reading lists. If you could choose up to five articles for such a course, what would they be?

Miners, Vigilantes & Cattlemen: Overcoming Free Rider Problems In The Private Provision Of Law, Andrew P. Morriss

Faculty Scholarship

Law is a good like food, insurance, or housing. Like other goods, it can and often should be provided by private entities. Yet law is usually regarded as the quintessential public good, so obviously public in nature that we need not even discuss its provision by anyone but the State. As Bruce Benson observed "[a]nyone who would even question the 'fact' that law and order are necessary functions of government is likely to be considered a ridiculous, uninformed radical by most observers." Even William Landes and Richard Posner, hardly apologists for the State, have concluded that law often must be …

Decius S. Wade's The Common Law, Andrew P. Morriss

Faculty Scholarship

Decius S. Wade played important roles in Montana's legal history as Chief Justice of the Territorial Supreme Court (1871- 1887), member of the Code Commission (1890-1895), and prominent lawyer. Wade wrote The Common Law sometime in late 1894 or early 1895 for a February 1895 address to Helena bar members celebrating the 1895 passage of the Civil, Political, Penal, and Civil Procedure Codes by the Montana Legislature. Although I disagree with much of Wade's analysis, his manuscript deserves attention now for two reasons.

First, Wade played a critical role in the development of Montana's legal system and his views on …

Charting The Influences On The Judicial Mind: An Empirical Study Of Judicial Reasoning, Gregory C. Sisk, Michael Heise, Andrew P. Morriss

Faculty Scholarship

In 1988, hundreds of federal district judges were suddenly confronted with the need to render a decision on the constitutionality of the Sentencing Reform Act and the newly promulgated criminal Sentencing Guidelines. Never before has a question of such importance and involving such significant issues of constitutional law, mandated the immediate and simultaneous attention of such a large segment of the federal trial bench. Accordingly, this event provides an archetypal model for exploring the influence of social background, ideology, judicial role and institution, and other factors on judicial decisionmaking. Based upon a unique set of written decisions involving an identical …

International Water Law, Groundwater Resources And The Danube Dam Case, Gabriel Eckstein, Yoram Eckstein

Faculty Scholarship

International water law is generally applied to disputes between states concerning surface bodies of water crossing international borders. Disputes and policy-making over transboundary ground water resources, however, have traditionally been determined on an ad hoc basis or based on regional custom. This disparate treatment stems primarily from the misunderstood nature of ground water and its relationship to surface water among government officials, policy-makers, jurists, and others. The result often has been the degradation of subsurface waters on both sides of political boundaries, and unwittingly, of numerous international surface bodies of water.

International concern over regional and global availability and quality …

Toward Understanding Global Governance: The International Law And International Relations Toolbox, Charlotte Ku, Thomas George Weiss

Faculty Scholarship

No abstract provided.

Law And Economics And Tort Law: A Survey Of Scholarly Opinion, Andrew P. Morriss, John C. Moorhouse, Robert Whaples

Faculty Scholarship

Recent litigation brought against cigarette manufacturers, software companies over potential year 2000 computer problems, and a fast food restaurant for serving coffee that was allegedly too hot reminds us of the importance and dynamic nature of tort law in the United States. Judging from ongoing coverage by newspapers and television, tort law is newsworthy. Yet, as with other legal issues, it is within the covers of law reviews and specialty journals in economics that much of the debate over the social utility of various tort rules and their reform takes place. In that debate law and economics exercises great influence. …

Implications Of Second-Best Theory For Administrative And Regulatory Law: A Case Study Of Public Utility Regulation, Andrew P. Morriss

Faculty Scholarship

Compared to early twentieth century policy analysts, we have available today extensive tools of "comparative institutional analysis,'' increasingly sophisticated economic models,3 vastly increased and widely distributed computing power, and gigabytes of data. Despite all this, we simply have not come to grips with the implications of second-best theory for regulatory interventions. Moreover, policy must address not only the economic implications of second-best theory but the legal and political implications as well: policymakers must consider the interaction of potential shortcomings of the legal and political tools available when they design the solutions to be implemented with those tools.

The failure to …

Women And Children In The Economy: Reflections From The Income Tax System, Faye Woodman

Articles, Book Chapters, & Popular Press

I have been asked to speak on “women and economics” with specific reference to the Canadian tax system. It is my thesis that the economic vulnerabilities of women and children in this nation are reflected and reinforced in the tax system. Further, it is my view that societal attitudes about who should support, and how we should support, children contribute to a complex synergy within the economic/tax system. This has the potential to produce a new underclass of government dependents who are dependent because, paradoxically, they receive so little support. Finally, I end with a plea for a broader commitment …

Expanding The Circle Of Membership By Reconstructing The Alien: Lessons From Social Psychology And The Promise Enforcement Cases, Victor C. Romero

Faculty Scholarship

Recent legal scholarship suggests that the Supreme Court's decisions on immigrants' rights favor conceptions of membership over personhood. Federal courts are often reluctant to recognize the personal rights claims of noncitizens because they are not members of the United States. Professor Michael Scaperlanda argues that because the courts have left the protection of noncitizens' rights in the hands of Congress and, therefore, its constituents, U.S. citizens must engage in a serious dialogue regarding membership in this polity while considering the importance of constitutional principles of personhood. This Article takes up Scaperlanda's challenge. Borrowing from recent research in social psychology, this …

Implied Wavier After Seminole Tribe, Kit Kinports

Faculty Scholarship

Part I of this Article briefly traces the history of the Supreme Court's Eleventh Amendment jurisprudence, focusing in particular on the opinions developing the doctrines of implied waiver and abrogation. Part II makes the case that the doctrine of implied waiver retains validity after Seminole Tribe, at least with respect to federal statutes passed pursuant to the Spending Clause that condition the receipt of federal funds on the states' waiver of the Eleventh Amendment and statutes passed under Congress's other Article I powers that regulate an activity voluntarily undertaken by the states. Finally, Part III considers other potential constitutional …

Debating The Proper Role Of National Law Under The New York Convention, Thomas E. Carbonneau

Faculty Scholarship

One of the many consequences of the progressive development of globalization apparently has been to incite a vigorous debate among leading members of the international arbitral community about the role of national law in implementing the enforcement regime of the New York Arbitration Convention (Convention). The debate was provoked by federal court rulings in two recent cases: Chromalloy Aeroservices v. Arab Republic of Egypt (Chromalloy) and Alghanim & Sons v. Toys"R" Us (Toys "R" Us). Prior to these opinions, there appeared to have been an implicit consensus in the international community regarding the "anational"character of …

The Death Of A Friendly Critic, James J. White

Articles

Our colleague, Andy Watson, died April 2. Andy was one of the handful of preeminent law professor/psychiatrists. In that role he wrote dozens of articles and several important books, including Psychiatry for Lawyers, a widely used text. I do not write to remind us of his scholarly work, of his strength as a clinical and classroom teacher, or of his prominence as a forensic psychiatrist. I write to remind us of his powerful criticism of our teaching. On the occasion of his death, it is right to recognize his influence on the law school curriculum and to consider whether his …

The Reluctant Justice: Lewis F. Powell Jr. Personifies The 'Quality Of Attentiveness', Christina B. Whitman

Articles

Lewis F. Powell Jr. came to the U.S. Supreme Court in 1972 reluctantly and at an age when many professionals are anticipating retirement rather than a career change. But the Court suited him. He grew to love the work, although he often found it agonizing, and he thrived on the role he played in the history of the Constitution.

Notes From The Editorial Advisory Board, James Boyd White

Articles

The tenth anniversary of this Journal is an occasion not only for celebrating its remarkable achievements, but also for thinking again about the nature and premises of the work it reflects. One way to begin might be with its two central terms, "law" and "humanities" (or the obvious alternative to the second, "literature").

Talking About Religion In The Language Of The Law: Impossible But Necessary, James Boyd White

Articles

In speaking to this conference about religion and law I am in a decidedly peculiar position, for it may be that every one of you has thought longer and harder about the relation between these two forms of life than I have. When Scott Idleman first asked me to talk to you, I explained that I was no expert, to put it mildly, and that the most that I could offer would be the reflections of a neophyte. He said that this was fine-perhaps he was just desperate for a speaker; perhaps he thought that it might be helpful to …

Municipal Liability For Failure To Investigate Citizen Complaints Against The Police, Hazel Glenn Beh

Fordham Urban Law Journal

This article briefly describe the emerging professionalism of law enforcement and, within this context, discuss the risks and benefits associated with current models for receiving and reviewing citizen complaints against police officers. Part IV discusses courts' application of the deliberate indifference standard to claims that a citizen complaint procedure is inadequate and summarizes litigation in several small and large communities employing the various models for complaint review. Additionally, Part IV examines the issues of proof raised in Canton and reinforced in Brown. The Article divides the cases by the models employed; however, the potential deficiencies in any model and the …

Constitutional Challenges To New York State's Death Penalty Statute, John M. Shields

Fordham Urban Law Journal

New York State's death penalty statute is constitutionally flawed in many respects. It violates the state and federal prohibition against cruel and unusual punishment and provides unrestricted prosecutorial discretion to pursue the death penalty. This standardless and unfettered discretion creates the risk of arbitrary or discriminatory application of capital punishment.

The Future Of Legal Services: Legal And Ethical Implications Of The Lsc Restrictions - Foreword, Steven Epstein, Eric B. Fields, Jack E. Pace Iii, Staci Rosche

Fordham Urban Law Journal

This article seeks to address issues of lawyering under Legal Services Corporation (LSC) restrictions . We organized the conference as part of Fordham's Advanced Seminar in Ethics and Public Interest Law. We comprised a student working group in the class who worked to organize the conference with the Legal Aid Society and the Stein Center for Ethics and Public Interest Law. The conference, held on May 30, 1997, brought together practitioners, academics, and law students to discuss the delivery of legal services under the federal restrictions. In the remarks that follow, participants address the issues germane to lawyering under the …

The Future Of Legal Services: Legal And Ethical Implications Of The Lsc Restrictions - Address: The Future Of Legal Services, Alexander D. Forger

Fordham Urban Law Journal

This address focuses on what is the future of legal services? There will always be the ability to provide legal services for many of those in need. We are never going to reach all eligible clients or resolve all their problems. But it is essential to keep pressure on the federal government to play its essential role. How can it walk away from all of the mandates in our fundamental documents and leave it to charity to assume access to justice? There could be no more nobler cause with which to be associated, and no more dedicated and heroic figures …

The Future Of Legal Services: Legal And Ethical Implications Of The Lsc Restrictions - Constitutional Issues Panel, Matthew Diller

Fordham Urban Law Journal

There have been three lawsuits brought that deal with these constitutional issues, two challenges to the Regulations and one opposition to a motion to withdraw, which was the VarshavskyI case that Valerie Bogart talked about. The decision in the Varshavsky case is outside. There is also a preliminary injunction decision from the case brought in Hawaii,2 of which Steve Shapiro is one of the counsel, and that decision is outside. And then, still pending is a decision on a preliminary injunction motion in a case called Velasquez,3 which was brought in the Eastern District of New York. Here to address …

The Future Of Legal Services: Legal And Ethical Implications Of The Lsc Restrictions - Ethics Issues Panel, Russell G. Pearce

Fordham Urban Law Journal

This panel focuses on the ethical issues relating to the restrictions, and speakers include Helaine Barnett, Emily Sack, Steve Ellmann and Stephen Gillers.

"Reasonable Accommodation" Under The Federal Fair Housing Amendments Act, Robert L. Schonfeld

Fordham Urban Law Journal

This article reviews the legislative history and case law of the Fair Housing Act. It reviews the elements of a claim for reasonable accommodations for persons with disabilities under the FHA. It argues that some courts have incorrectly interpreted the statute restrictively defying the intentions of the drafters of the statute.