Legal Arguments in the Opinions of Montana Territorial Chief Justice Decius S. Wade

Decius Spear Wade was the longest serving member of the Montana Territorial Supreme Court, holding the Chief Justiceship between 1871 and 1887, more than sixteen years. Wade authored an impressive 192 majority opinions, along with fourteen concurrences and dissents, of the total of 637 reported majority opinions issued by that court. By productivity and length of service alone, Wade stands out on the Montana court and among territorial judges generally. Unlike many territorial judges, including some of his brethren on the Montana court, Wade was well-regarded by his contemporaries. Subsequent observers have also ranked Wade among the best of the judges of the territorial courts generally. In addition to his long tenure on the Territorial Supreme Court, Wade played an important role in other aspects of nineteenth century Montana. He wrote the chapters on law and the courts for a popular nineteenth century history of Montana, authored a novel with a legal theme that was read (and apparently well thought of) in Montana Territory, and wrote an article on selfgovernment in the territories. In addition to his writings, Wade served on the 1889-1895 Code Commission and delivered two crucial speeches on the common law8 and codification9 in the 1890s that helped pave the way for Montana\u27s adoption of Civil, Political, Penal, and Civil Procedure codes originally drafted by David Dudley Field for New York. Yet we must be careful not to overestimate Wade\u27s influence. Wade is far from the judicial stalwart portrayed in the brief summaries of Montana\u27s judicial history present in general historical works. He was a thorough and careful (if overly wordy) writer, as discussed below, but he was also surprisingly sloppy about attributing his lengthy quotes from others\u27 works in at least some of his published writings. He was an able common law judge, but enthusiastically threw himself into an attempt to dismantle the common law system in the 1890s. He played an important role in ensuring the common law\u27s stability, yet disparaged that stability in his public pronouncements. Paradoxically it is the role that Wade seems to have been least concerned with, that of common law judge, rather than his more grandiose attempts at a legacy of legal reform, that form his most significant contribution to Montana jurisprudence. The combination of Wade\u27s prominence, prolific opinion-writing, other legal writings, and reputation make him a fitting subject of study today. In Wade\u27s writings we see the combination of what Gordon Bakken termed the habitual modes and forms of official thought and action and the innovations produced by the frontier. In section II below, I give a brief biographical overview of Wade. I outline the methodology I used to extract data from Wade\u27s opinions in section III. I present the results of this analysis, along with a more traditional legal analysis in section IV. A brief note is in order on what this article is not. It is not a legal history of Montana Territory, something that has yet to be written. It is also not an examination of the federal-territorial relationship, an important area for territorial judges who were under the supervision of the federal attorney general. The focus is on Wade and his writings, which means it is also not a full fledged analysis of the national or regional territorial bench or legal systems as a whole, something that has already been written and written well, by several authors. 16 Rather the goal is to examine how Wade dealt with the legal challenges posed by Montana Territory\u27s rapid growth

Retroactive Adjudication

This Article defends the retroactive nature of judicial lawmaking. Recent Supreme Court judgments have reignited debate on the retroactivity of novel precedent. When a court announces a new rule, does it apply only to future cases or also to disputes arising in the past? This Article shows that the doctrine of non-retroactive adjudication offers no adequate answer. In attempting to articulate a law of non-retroactivity, the Supreme Court has cycled through five flawed frame-works. It has variously characterized adjudicative non-retroactivity as (1) a problem of legal philosophy; (2) a discretionary exercise for balancing competing right and reliance interests; (3) a matter of choice of law; (4) a remedial issue; and (5) a contingency of last resort. This Article rejects these paradigms and instead offers an alternative framework grounded in conventional common-law reasoning: that judicial precedent is inherently retroactive. The “equitable considerations” animating this body of law can best be fulfilled by judicial abandonment of non-retroactivity doctrine. Instead, courts should respond to “new” law by turning to a long-held value in our legal system: that equity aids the vigilant, not those who sleep on their rights

Substantive Due Process Since Eastern Enterprises, with New Defenses Based on Lack of Causitive Nexus: The Superfund Example

Eastern Enterprises v. Apfel has renewed the relevance of one type of substantive due process reasoning by implicitly ruling that future statutory obligations to pay compensation are tempered by an analysis of the party’s actions and the alleged harm. Though the legal commentary has focused on Eastern Enterprises’s implications for cases involving takings and retroactive liability, the causative nexus analysis adds another dimension to its importance. This analysis is relevant to Superfund actions, particularly when innocent landowners are involved. Courts should address the causative nexus issue when determining liability to ensure that Superfund does not place unconstitutional burdens on private citizens. After Eastern Enterprises, proper substantive due process analysis requires courts to ask why a Potentially Responsible Party is the appropriate party to pay for a cleanup and whether such a burden is in line with this nation’s traditional notions of fairness

Federalism in the Taft Court Era: Can It Be “Revived”?

This Article analyzes the Supreme Court\u27s view of federalism during the decade of the 1920s. It offers a detailed discussion of four jurisprudential areas: congressional power, dormant Commerce Clause doctrine, intergovernmental tax immunity, and judicial centralization through the enforcement of federal common law and constitutional rights. The resurgent federalism of the contemporary Court is typically characterized as reviving pre-New Deal principles. This Article concludes, however, that any such revival is highly implausible. It offers four reasons for this conclusion. First, the pre-New Deal Court conceived federalism in terms of the ideal of dual sovereignty, which imagined that the federal government and the states regulated distinct and exclusive spheres of social and economic life. But because the national market had by the twentieth century become thoroughly integrated, this ideal produced doctrinal incoherence in the areas of both intergovernmental tax immunity and the dormant Commerce Clause. The application of the ideal of dual sovereignty also significantly undercut state power, because it invited the pre-New Deal Court to prohibit states from regulating the exclusively federal area of interstate commerce. For these reasons the modern Court has abandoned the ideal of dual sovereignty in its doctrine of intergovernmental tax immunity and the dormant Commerce Clause. Contemporary opinions in these areas imagine federal and state interests as intermingled and overlapping, rather than as separated into discrete spheres. The modern view actually offers more protection for state regulations than did the ideal of dual sovereignty espoused by the pre-New Deal Court. Second, the pre-New Deal Court understood itself as a common law court authorized to articulate the deepest experiences and values of the American people. This authority transcended the distinction between federal and state power, which is why the pre-New Deal Court never conceived itself as an agent of a federal government that was potentially in tension with state sovereignty. The Court never understood the centralization resulting from judicial decisionmaking as a federalism issue. The Court freely regulated intimate areas of state life through the promulgation of general common law. The pre-New Deal Court\u27s common law authority was regarded as even more fundamental than Congress\u27s claim to articulate the national will. The triumph of Holmesian positivism in Erie Railroad Co. v. Tompkins transformed the Court into an instrument of specifically federal law. The federalism implications of judicial decisionmaking in the areas of common law and constitutional rights were thus made manifest for the first time. The Court\u27s authority to impose structural limitations on congressional power was also profoundly altered. Third, the pre-New Deal Court, like the country generally, regarded the federal government as a potentially distant, bureaucratic, and oppressive institution. States were by contrast conceptualized as sites of democratic self-government. Federalism was typically conceived as the problem of reconciling centralization with self-government. Thus federal and state regulations, even of the same subject matter, were not regarded as equivalent. State regulation was self-chosen; federal regulation was potentially coercive. This view of the federal government was pushed to the margins of American political culture when the crisis of the New Deal legitimated the national government\u27s authority to speak as the genuine representative of an authentic national democratic will. Combined with the demise of the Court\u27s common law authority, this transformation of Congress\u27s legitimacy undercut the Court\u27s ability to second-guess Congress\u27s vision of national priorities when reviewing the limits of congressional power. Fourth, the pre-New Deal Court conceived structure and rights as complementary and mutually dependent concepts. The Court defined individual rights in ways designed to serve structural principles, like the integration of the national market. And it defined structural principles, like the limits of congressional power, in terms of the individual rights affected by federal legislation. Because the Lochnerism of the pre-New Deal Court inclined it to protect freedom of contract, it sought to impose limits on congressional power that were highly sensitive to the nature of the economic transactions regulated by federal legislation. Modern constitutional thinking, by contrast, sharply distinguishes structure from rights, and it does not seek to protect the same kind of economic rights as did pre-New Deal Lochnerism. The revival of pre-New Deal federalism, in short, would require the contemporary Court to restore an ideal of dual sovereignty that in important doctrinal areas is not only incoherent, but deeply antagonistic to state power; to reassert its authority as a common law court; to resurrect an image of Congress as a national legislature unsupported by a genuine national democratic will; and to dismantle the contemporary distinction between structure and rights so as to limit congressional power in ways designed to protect rights of substantive due process