Document Type

Article

Publication Date

8-1-2014

First Page

1

Volume

75

Issue

2

Source Publication Abbreviation

Mont. L. Rev.

Abstract

The late legal philosopher Ronald Dworkin conceived an ideal American judge, “a lawyer of superhuman skill, learning, patience and acumen.”1 He also is a judge of principle, with a strong philosophical bent. Like all good judges, he accepts the conventional rules of law in his jurisdiction, and follows the precedent established by his predecessors to the extent a prior case controls a current case. Most cases are easy cases for this judge and others, and fit well within the conventional rules and established precedent. A very good judge, in Dworkin’s view, looks beyond the immediate rules and precedent to ensure the case also fits within the legal system as a whole. Some cases, however, are hard cases that fit more than one reading of the rules and precedent, even after canvassing the whole legal system. In those cases the judge of principle looks outside the rules and precedent, turning instead to the political theory he finds at the foundation of the legal system. The judge searches that theory for the principles that best justify the law, chooses the reading of the law most consistent with those justifying principles, and elaborates the rule and justification in his decision. For his labors Dworkin calls this judge of principle “Hercules.”2 Helena is not Olympus, and retired Montana Supreme Court Justice Jim Nelson is not Hercules. No human judge is. Yet over his nearly two decades on the Montana Supreme Court, Nelson exemplified Herculean judging in both its strengths and its weaknesses. Past issues of the Montana Law Review have celebrated Justice Nelson’s dedication to the idea of law. As the editors wrote in a prior volume, the University of Montana School of Law is indebted to Justice Nelson for his “remarkable dedication to Montana’s law students,” including teaching as an adjunct in 2000 and 2013, “his frequent visits to law school events, and for his intense and sincere interest in students’ legal and ethical education.”3 This review, invited by the editors, considers the judicial career of Justice Nelson in both quantitative and qualitative dimensions.4 It begins with an empirical assessment of Nelson’s judicial record in Part I. After a brief biographical sketch, it considers metrics of ideology and influence on the Montana Supreme Court, and situates Justice Nelson among his colleagues.5 The review continues with an analytical assessment of Nelson’s judicial philosophy in Part II. Focusing on constitutional cases, it examines the development of two principles, personal autonomy and equal dignity, central to his reading of the Montana Constitution. Part III synthesizes the empirical and analytical assessments and identifies some limits to Justice Nelson’s jurisprudence of principle. The review concludes by proposing some tentative conclusions about Justice Nelson’s legacy.

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