Look Again at Stare Decisis in Montana (original) (raw)

takes on "Stare Decisis in Montapa," 65 Mont. L. Rev. 41 (2004), in the October issue of The Montana Løwyer.t Her article is inaptly named. It should have been entitled, "A Cursory I ook at Stare Decisis." In "Stare Decisis", I concluded that from 1991-2000 the Montana Supreme Court issued 109 opinions that overruled precedent. This was substantially more than previous decades. It was substantially more than other similar state supreme courts during the same decade. I also concluded that many of those decisions were unwaranted and others were improper. "2d Look" [Ms. Dudik's article] takes issue with some of my methodology. It questions my analysis of three cases. Its initial argument addresses only one small aspect of "Stare Decisis"the debunking of the claim that the Court's high rate of overruling correlated to the increase in its caseload. "2d Look" says that a footnote in the National Center for State Courts'report, State Court Caseload Statistics, 2001 (from which I calculated caseload estimates for Montana and nine other state supreme courts), declared Montana's data incomplete. Therefore, it concludes, my estimate is unreliable. "2d Look" also concludes, incorrectly, that I did not include unreported orders and non-cite opinions in my workload estimates when I conducted a decade-bydecade comparison of the Supreme Court's caseload. There is a simple explanation for her complaints: She failed to read two footnotes. Finally, "2dLook" complains that I have "misread" the cases. Dudik relies Lnrren s upon her reading ofthree of 109 cases to demonstrate this.

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