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

Specialized Labor and Employment Law Institutions in New Zealand and the United States

Legal specialization takes several forms: decision-makers and advocates can specialize in particular types of cases, specialized rules can govern particular types of disputes, facts may be found by experts, appeals heard by special courts, or some or all of these combined. The American and New Zealand employment and labor law regimes make different use of specialized decision-makers, in part because of differences in their use of specialized legal rules for labor and employment law. These differences provide an opportunity to assess the appropriateness of specialization in legal decisionmaking. Specialization in the legal system is simply one form of the more general phenomenon of specialization of goods and services. When we examine products provided in the marketplace, we see a wide range in degree of specialization. Medical services, for example, are provided through networks of generalists and specialists-we visit an internist for a routine physical, but a surgeon for an appendectomy. On a more basic level, in a visit to the grocery store in the United States or New Zealand, I can find many varieties of jam but at most one variety of Vegemite. As these examples suggest, the degree of specialization in the market is a response to factors such as consumer demand or a desire to preempt competitors. In law, however, market forces play only a muted role around the edges. Getting the degree of legal specialization right is thus more important than getting the degree of specialization in toppings for bread right -in the latter case, a manufacturer that produced crunchy Vegemite may well go bankrupt; in the former, a government which opts for the wrong degree of specialization causes problems, but is unlikely to disappear. The appropriateness of specialized legal institutions in a particular case rests on the balance between specialization\u27s benefits and its dangers. Evaluating that balance is trickier than it first appears. Without market measures of success, we must fall back on hypothetical counterfactuals. Nonetheless, a combination of theory and experience with specialist bodies in other areas provides some guidance. Part I of this Article describes the use of specialized legal institutions in New Zealand and the United States, while Part II assesses the appropriateness of both countries\u27 institutions in light of the theoretical literature on legal specialization

The Next Generation of Mobile Source Regulation

In the U.S. we have reached the point where further reductions in per-mile emissions from individual mobile sources of criteria pollutants will be both tiny and expensive. In addition, as population grows, total mobile source emissions in developed countries are likely to increase as our ability to engineer reductions on a vehicle-by-vehicle basis reaches its technological limit and is overwhelmed by the rising numbers of miles driven. Mobile source emissions world-wide will climb as greater wealth in the developing world fuels the demand for mobility. This article examines the demand for transportation and the regulation of transportation fuels and then assesses the possible steps for future regulation. As to pollutants where the issue is total loading in the atmosphere (e.g., CO2), the author argues that it will be cheaper and more effective to buy offsets in the developing world than to attempt to reduce emissions only within the developed world. The author further argues for incentives to induce changes in individual driver behavior in place of command and control measures and for changing anti-trust regulation to allow for tighter integration of fuels and engines to reduce mobile source emissions. Even with these measures, however, the author argues that stationary source regulation is going to have to pick up a larger portion of future gains in air quality

Hayek & (and) Cowboys: Customary Law in the American West

The settlement of the American West during the nineteenth century produced a flourishing Hayekian legal because of the extended absence of state-based legal systems from large parts of the West. Without the crowding out of private law that accompanies the state\u27s assertion of a monopoly over some areas of the law and subsidized competition in others, individuals created dispute resolution mechanisms and rules based on custom and contract. These examples of systems built by not-particularly-well-educated cowboys, gold miners, and migrants suggest that Hayekian legal orders can serve as effective, complete substitutes for state-provided law. This paper surveys Hayek\u27s legal theory, primarily as set forth in Law, Legislation, and Liberty, and then examines three customary law institutions from the nineteenth century West: mining camps, cattlemen\u27s associations, and vigilance committees. The paper concludes that all three showed some of the key characteristics of a Hayekian legal institution. The Western experience suggests three lessons for reviving Hayekian legal institutions. First, steps that reduce the state\u27s attractiveness as a means of plunder will diminish the plunder interest group\u27s demand for the state\u27s crowding out of private legal institutions. The Takings Clause, for example, restricts the ability to plunder by requiring the state to pay market prices for resources it takes. [1] Interpreting restrictions on takings broadly can thus reduce the lure of plunder and provide a greater space for the development and survival of Hayekian legal institutions. Second, ending the subsidization of state provided legal services (e.g. the minimal charges for filing law suits) will prevent crowding out of private efforts to provide the same services. Third, these examples flourished on the frontier. The frontier is a difficult place. Conditions are harsh, social capital spread thin, and many of the institutions we take for granted are missing or scarce. Yet the frontier is also a place where Hayekian legal institutions flourish. Moreover, those institutions were lost as civilization advances on the frontier. This suggests that looking on current frontiers is a good place to find Hayekian legal institutions. The larger conclusion is that the Western experience confirms some important aspects of Hayek\u27s legal theory. Spontaneous legal orders are present in societies of great wealth, with cultures not overly dissimilar from today\u27s, not only in medieval Iceland and Anglo-Saxon England. For all the real problems that exist in Hayekian legal theory, it accurately describes real institutions not just utopias. [1] See Richard A. Epstein, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985)

Review of Jesse Dukeminier and James E. Krier, Property (4th Edition 1998)

Professors Dukeminier and Krier\u27s property casebook is reputed to be the market leader in Property casebooks; I have heard estimates that it has as much as a fifty percent market share. This position is well-deserved-the casebook is thorough, comprehensive, well-written, error free, and, a significant feature for new teachers, has the best teacher\u27s manual I have encountered for any casebook in any subject. IBM once sold computers because No one ever got fired for choosing IBM. An analogous claim can be made for this casebook-no one ever provoked significant faculty or student unrest by choosing Dukeminier and Krier. In this review, I will concentrate on two perspectives on the book. I first taught Property in the spring 1998 semester (using the third edition of Dukeminier and Krier) and am (as I write this) about to begin my second year of teaching the course. I can thus give the perspective of a new teacher of the subject. In addition, I am an economist as well as a lawyer and am deeply fascinated by legal history. I try to bring both law and economics and historical perspectives to my teaching. I therefore offer an evaluation of the book with respect to its ambitions in those areas

Private Actors & Structural Balance: Militia & the Free Rider Problem in Private Provision of Law

Private Actors & Structural Balance: Militia & the Free Rider Problem in Private Provision of La

Lessons from the Development of Western Water Law for Emerging Water Markets: Common Law vs. Central Planning

The story of water in the American West shows that political intervention is unnecessary. Local institutions and rules could be the basis for a legal regime sufficient to deal with water issues that arise. The importation of central planning regimes for water can thus not only lead to the allocation of water in ways that harm the interests of indigenous peoples, but also can contribute to the destruction of customary legal systems, which themselves form a valuable part of indigenous people\u27s cultural heritage. Failing to resist the attempts by special interests at a water grab may thus leave both the indigenous people\u27s land and culture high and dry. Protecting customary legal regimes\u27 water law, on the other hand, may help control water sensibly. This Article examines the development of water law in the West and suggests reliance on a common law rather than a central planning, regulatory regime. Part One describes the common law water rights system and its development in the West. Part Two surveys how courts in Montana and Wyoming dealt with water law issues in the nineteenth century. Part Three traces the development and spread of the Wyoming System of central planning for water. Part Four compares the common law and central planning as devices for allocating water. Part Five concludes by drawing lessons for modern water markets and other areas of environmental policy and for the development of water markets from the common law experience with water rights

Review of Jesse Dukeminier and James E. Krier, \u3cem\u3eProperty\u3c/em\u3e (4th Edition 1998)

In this review, I will concentrate on two perspectives on the book. I first taught Property in the spring 1998 semester (using the third edition of Dukeminier and Krier) and am (as I write this) about to begin my second year of teaching the course. I can thus give the perspective of a new teacher of the subject. In addition, I am an economist as well as a lawyer and am deeply fascinated by legal history. I try to bring both law and economics and historical perspectives to my teaching. I therefore offer an evaluation of the book with respect to its ambitions in those areas

Decius S. Wade\u27s The Common Law

Decius S. Wade played important roles in Montana\u27s 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\u27s analysis, his manuscript deserves attention now for two reasons. First, Wade played a critical role in the development of Montana\u27s legal system and his views on the law remain relevant. Wade wrote more than half of the first six volumes of the Montana Reports as Territorial Chief Justice. His contemporaries found his opinions had much to do with perfecting the practice of law in the courts of Montana. 2 Decius Wade also played a significant role in the 1895 codification of Montana\u27s law, both as a member of the Code Commission and as a bar leader. Wade\u27s 1894 speech in favor of codification, for example, played an important role in the Codes\u27 passage. Wade\u27s views on the common law\u27s relationship with codified law are thus still relevant to understanding Montana law, and the Codes in particular, today. Second, Montana\u27s nineteenth century legal history is regrettably sparse and relatively few of Wade\u27s papers have survived. Because this manuscript presents a synthesis of Wade\u27s thoughts on a central feature of Anglo-American jurisprudence, and one undergoing a significant change in Montana when he wrote, The Common Law is an important historical document. Moreover, its significance is enhanced because evidence of American legal culture in general in this period is lacking. Because I believe The Common Law is best presented as a historical document, I provide it relatively unedited, opting instead to annotate in footnotes. Since Wade\u27s original manuscript contains no footnotes, all footnote material is my annotation