Legal Arguments in the Opinions of Montana Territorial Chief Justice Decius S. Wade (original) (raw)
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Montana Law Review, 2011
Thanks to Robert Natelson for sparking my initial interest in Montana jurisprudence and his generous help to a then-new law professor who turned up with many questions after reading one of his articles. I would also like to thank the Property & Environment Research Center for enabling many visits to the State, the editors of the Montana Law Review, past and present, for their assistance with this and previous publications, and to Roger Meiners for comments. 1.
Look Again at Stare Decisis in Montana
Mont Law, 2004
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.
Montana Law Review, 2004
* I want to thank my colleagues Bari Burke, Thomas Huff, and Rob Natelson for taking the time to review my draft and for their excellent comments. Hillary Wandler has done an extraordinary job in suggesting revisions and for that I thank her.
BYU L. Rev., 1987
The author served as one of Judge Mc-Kay's clerks in 1979-80, and he is willing to return for another go of it. The author wishes to express his appreciation to the library staff at the Case Western Reserve University School of Law, particularly Patricia J. Harris and Mary Ledoux, who provided substantial assistance in the preparation of this article. 1. Although the number of filed dissents is hardly a perfect measure of a court's intellectual vigor, it is a relevant statistic. In the 1976-77 term (July-June) of the Tenth Circuit, before Judge McKay joined the court, only 16 dissents were filed by all judges. In his first seven months on the bench (December 1977-June 1978), Judge McKay alone filed seven dissents, and he added 13 in the next 12-month period. He has had as many as 17 dissents in one term (1985-86). The average number of dissents filed during this ten-year period by other judges also has risen. For example, in 1985-86 a total of 20 non-McKay dissents came down. This increase in open doctrinal disputes appears not to have been accompanied by rancor; the court remains, at least to outward appearances, an extraordinarily congenial body. 2. Following a clerkship with the Honorable Jesse A.
2018
Helena. In his early days in Montana, Wade wrote a novel, Clare Lincoln, 9 on a Civil War theme."°W ade delivered this address on February 25, 1895 before the Helena bar. Two years earlier, Wade and his fellow code commissioners had been disappointed when the Third Legislature had failed to take action on Civil, Political, Civil Procedure, and Penal Codes the commission drafted." After a significant electoral shift in 1894, the Montana republicans controlled both houses of the legislature, allowing for the codes to receive attention. By the time of Wade's speech, all four codes had passed both houses and three had been signed by Governor Robert Smith. 2 Wade's speech was thus concerned not with advocacy, as his influential 1894 address, Necessity for Codification, 3 had been. Rather, The Common Law was a speech celebrating the success of codification. In the course of his talk, Wade developed three important themes: (1) the success of Roman law as a model and justification for American codification; (2) the importance of precedent and its proper role; and (3) the supremacy of law. According to Wade, both pre-codification Rome and Montana in the 1890s, and the common law jurisdictions generally, struggled with too much precedent. Rome struggled with "a vast fab-8. The facts here are taken from Connolly, supra note 2, at 59-60 and JAMES