Wyoming Law Review最新文献

{"title":"Protect Our Military Children: Congress Must Rectify Jurisdiction on Military Installations to Address Juvenile-on-Juvenile Sexual Assault","authors":"George A Lavine","doi":"10.2139/SSRN.2972380","DOIUrl":"https://doi.org/10.2139/SSRN.2972380","url":null,"abstract":"Exclusive federal legislative jurisdiction on military installations creates a black hole for juvenile justice — federal prosecutors routinely decline to prosecute juvenile-on-juvenile sexual assault cases and local prosecutors lack legal authority to apply state juvenile delinquency laws. Although Congress passed legislation in 1970 permitting the transfer of exclusive federal legislative jurisdiction over federal lands back to the surrounding states, it left the decision to seek the return, or retrocession, of such jurisdiction to the discretion of the Secretary of each individual executive department. The Department of Defense (DoD) has retroceded exclusive federal legislative jurisdiction over juvenile crimes on military installations only a handful of times despite clear indicators that the non-prosecution of juvenile-on-juvenile sexual assaults is a loathsome trend across the force. (For instance, a memo from Fort Hood, Texas, revealed thirty-nine cases of reported juvenile-on-juvenile sexual assault from 2006 to 2012, without a single federal juvenile delinquency prosecution.) Congress must statutorily require the DoD to seek retrocession of exclusive federal legislative jurisdiction over juvenile crimes on all military installations to the surrounding states and extend the reach of justice into the lives of military children sexually victimized by their juvenile peers.","PeriodicalId":407582,"journal":{"name":"Wyoming Law Review","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114463228","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Effect of the Successful Assertion of the State Secrets Privilege in a Civil Lawsuit in Which the Government is Not a Party: When, If Ever, Should the Defendant Shoulder the Burden of the Government’s Successful Privilege Claim?","authors":"E. Imwinkelried","doi":"10.2139/SSRN.2603841","DOIUrl":"https://doi.org/10.2139/SSRN.2603841","url":null,"abstract":"It is well-settled that the national government has an evidentiary privilege protecting state and military secrets. The privilege protects information that can be vital to the country’s safety and survival. It was expectable that the national government would begin asserting the privilege more frequently after 9/11. The government has invoked the privilege in several prosecutions of alleged terrorists. However, the privilege also applies in civil actions. Indeed, the government may assert the privilege in a civil action even when the government is not joined as a party. The government has the right to intervene for the purpose of claiming the privilege. In recent years, the government has asserted the privilege in a large number of civil actions, including cases involving high technology companies, private security firms, infrastructure contractors, and weapons and aircraft manufacturers. When the government successfully asserts the privilege in a civil action in which it is not a party, the question naturally arises: What is the procedural effect of the assertion? As the quotations at the beginning of this article indicate, the generalization has been that the only effects are that the privileged information becomes unavailable as evidence and that the case can proceed without the privileged evidence. However, Part I of this article demonstrates that that generalization is a gross over-simplification. In many cases, the court terminates the litigation, resulting in a peremptory victory for the defense. The plaintiff loses the opportunity to conduct discovery or take the case to trial. Part II of this article presents a critical evaluation of the current state of the law. The primary thrust of Part II is that at least in one set of circumstances, the plaintiff ought to be permitted to proceed – namely, when (1) the plaintiff has sufficient unprivileged evidence to present a prima facie case, (2) proceeding would not raise a significant risk of the inadvertent revelation of privileged information, (3) the privilege claim affects the defense’s ability to develop an affirmative defense, and (4) the defendant has a closer relationship to the government than the plaintiff. A factual proposition is considered an affirmative defense because the law assigns the defendant the burdens of pleading, production, and proof on the proposition. The allocation of these burdens to the defendant can be outcome determinative. If there were sufficiently weighty policies to assign those burdens to the defendant, in these circumstances the defendant should also bear the burden of the loss of the privileged evidence. The government’s privilege claim neither extinguishes nor diminishes the policies that originally warranted assigning the burdens to the defense. Part II adds that there is a colorable argument that the plaintiff should also be permitted to proceed when the government claim interferes with the defendant’s ability to present a simple defense, merely negating","PeriodicalId":407582,"journal":{"name":"Wyoming Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129413526","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"General Stream Adjudications, the McCarran Amendment, and Reserved Water Rights","authors":"Lawrence J. Macdonnell","doi":"10.2139/SSRN.2691068","DOIUrl":"https://doi.org/10.2139/SSRN.2691068","url":null,"abstract":"This paper critiques the use of general stream adjudications, the requirements of the McCarran Amendment, and the use of state courts to determine federal reserved rights.","PeriodicalId":407582,"journal":{"name":"Wyoming Law Review","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132080691","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Publius Was Not a PAC: Reconciling Anonymous Political Speech, the First Amendment, and Campaign Finance Disclosure","authors":"Benjamin Barr, S. Klein","doi":"10.2139/SSRN.2268691","DOIUrl":"https://doi.org/10.2139/SSRN.2268691","url":null,"abstract":"This article criticizes federal and state campaign finance disclosure laws on First Amendment and political privacy grounds and offers several suggestions for reform respectful of these concerns. Part II of this article offers a history of anonymous speech and suppression of political speech generally. It also illustrates the benefits of anonymous speech to political discourse and participation in the American experiment. Part III is a political speech primer, laying out the basic principles for protecting it constitutionally, and identifying the schism between free speech and campaign finance reform. Part IV discusses the difficulty and expense of complying with campaign finance disclosure. It also discusses efforts to expand campaign finance disclosure laws to reach practically all political speech. Finally, Part V discusses the paradox surrounding legal protection of anonymous speech, and offers various proposals to bolster political privacy.","PeriodicalId":407582,"journal":{"name":"Wyoming Law Review","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123840524","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Development of Wyoming Water Law","authors":"Lawrence J. Macdonnell","doi":"10.2139/SSRN.2691080","DOIUrl":"https://doi.org/10.2139/SSRN.2691080","url":null,"abstract":"","PeriodicalId":407582,"journal":{"name":"Wyoming Law Review","volume":"150 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116872787","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Law, Popular Legal Culture and the Case of Kansas, 1854-1856","authors":"Chad G. Marzen","doi":"10.2139/SSRN.2219002","DOIUrl":"https://doi.org/10.2139/SSRN.2219002","url":null,"abstract":"In the wake of the movie Lincoln and the 150th anniversary of events such as the Emancipation Proclamation and the Battle of Gettysburg, more attention and discussion in 2013 is likely to be directed to the causes, effects, and legacy of the Civil War, in law and social impact. This article contends that there is one historical time and moment which should not be overlooked – the Kansas-Nebraska Act of 1854 and period of time with events relating to Kansas from approximately 1854-1856 which preceded the onset of the Civil War.This Article applies Professor Friedman’s framework of popular legal culture to appeals for emigration to Kansas made by abolitionists and Northeasterners in response to the passage of the Kansas-Nebraska Act in 1854. Instruments of popular culture, including circulars, handbooks, music, poetry, speeches, and especially newspaper heavily influenced migration to Kansas from 1854 to 1856 as a direct response to the notion of popular sovereignty embraced by the Kansas-Nebraska Act.This article concludes that by engaging in a close reading of Kansas rhetoric from 1854-1856 in the instruments of popular culture which responded to the Kansas-Nebraska Act, the significant change in tone helps to explain how popular culture and the response to the legislation led to the growing polarization between North and South prior to the onset of the Civil War.","PeriodicalId":407582,"journal":{"name":"Wyoming Law Review","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115280609","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Rush to (Summary) Judgment in Franchisor Liability Cases","authors":"H. Gelb","doi":"10.2139/SSRN.2054927","DOIUrl":"https://doi.org/10.2139/SSRN.2054927","url":null,"abstract":"Legal and factual issues regarding franchisor liability pose challenges for the legal community. This is an article about courts striving to fashion the law of franchisor liability for franchisee torts, an area of the law with serious and unsettled issues. It discusses how courts seek guidance from respondeat superior and apparent agency doctrines in determining the principles of franchisor vicarious liability. Much of the discussion is based on case law and Restatement (Third) of Agency. Estoppel and direct liability principles are also considered. This article examines a number of cases that illustrate questionable factual determinations in granting summary judgments favorable to franchisors, thereby denying trials to injured parties. It also reviews some cases illustrating better approaches to factual determinations. Since summary judgments should be granted only in the absence of material facts at issue, erroneous fact-finding seriously undermines the judicial process.The formulation of the law of franchisor liability is especially important because of its potential to encourage franchisors to promote better health and safety practices to benefit franchisee patrons and the general public.","PeriodicalId":407582,"journal":{"name":"Wyoming Law Review","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114607439","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Disarming Nature of the Wyoming Firearms Freedom Act: A Constitutional Analysis of Wyoming's Interposition between Its Citizens and the Federal Government","authors":"O. S. Balloun","doi":"10.2139/ssrn.1784008","DOIUrl":"https://doi.org/10.2139/ssrn.1784008","url":null,"abstract":"Although the Wyoming Firearms Freedom Act conflicts with existing federal law, the Act is a constitutionally valid exercise of state power. The Act is a manifestation of the doctrines of interposition and nullification espoused by James Madison and Thomas Jefferson in the early history of the United States. The Act is also a clear exercise of state sovereignty that comports with the historical development of the Tenth Amendment.","PeriodicalId":407582,"journal":{"name":"Wyoming Law Review","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114074417","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Race and American Indian Tribal Nationhood","authors":"M. Fletcher","doi":"10.2139/SSRN.1620603","DOIUrl":"https://doi.org/10.2139/SSRN.1620603","url":null,"abstract":"Modern American Indian nations face a racial paradox. On one hand, the citizenry of Indian nations is almost exclusively based in race, ethnicity, and ancestry. Indian nations would not be “Indian” without this basis. But American constitutional principles dictate that laws based on racial, ethnic, or ancestral classifications are highly disfavored. For Indian nations, this means that Indian governments have virtually no authority to regulate the activities of the non-Indian citizens that live amongst Indian communities. This paper offers a long-term solution to this conundrum, a solution that requires Indian nations and American courts and policymakers to modernize understandings about American Indian tribal nationhood. American Indian law and policy forced Indian nations into a legal status akin to “domestic racial nations.” By tweaking Indian citizenship requirements, and recognizing the national character of modern Indian nations, modern Indian nations should more properly be understood as simply “domestic nations,” much like Monaco and The Vatican.","PeriodicalId":407582,"journal":{"name":"Wyoming Law Review","volume":"358 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-06-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133407275","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Navigating Tricky Ethical Shoals in Environmental Law: Parameters of Counseling and Managing Clients","authors":"K. Connolly","doi":"10.2139/SSRN.1645544","DOIUrl":"https://doi.org/10.2139/SSRN.1645544","url":null,"abstract":"This article explores some of the ethical situations that environmental and natural resource lawyers can encounter when counseling clients. It begins by exploring the Model Rule of Professional Conduct (MRPC) 2.1, regarding counsel’s role as “advisor,” which provides that appropriate client counseling refers not only to law, but also to moral, economic, social, and political factors, when making decisions. It also explores the environmental lawyer’s ability to withdraw from representation pursuant to MRPC 1.16. It places the obligations and options under these rules and other mandates in the environmental and natural resource context, and encourages attorneys practicing in the area to consider how best to apply these rules in their practice.","PeriodicalId":407582,"journal":{"name":"Wyoming Law Review","volume":"52 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127413655","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}