Montana's Maxims of Jurisprudence

Earlier in the summer, I blogged about California's Maxims of Jurisprudence. As I discussed in that earlier post, California's maxims were an interesting collection of maxims of equity, canons of statutory interpretation, and other quizzical bits of advice.

I recently noticed that the Thurgood Marshall Law Library took note of my blog post and asked whether any other states have similar maxims. A quick check reveals that Montana and Guam appear to have similar lists of maxims. In this post, I will focus on Montana's maxims of jurisprudence.

Montana's legislature has a fairly approachable interface for searching the State Code. You can find Title 1, Chapter 3 of the Code here, which contains links to the purpose and text of Montana's maxims of jurisprudence.

Montana Code Annotated 1-3-101 notes that the "maxims of jurisprudence set forth in part 2 of this chapter are intended not to qualify any of the other provisions of this code but to aid in their just application."

As for the text of the maxims themselves, I have reproduced the entire list below. They are all contained in Montana Code Annotated Title 1, Chapter 3, Part 2:

1-3-201. Obsolete reason, obsolete rule. When the reason of a rule ceases, so should the rule itself.

1-3-202. Same reason, same rule. Where the reason is the same, the rule should be the same.

1-3-203. Change in purpose. A person may not change the person's purpose to the injury of another.

1-3-204. Waiver of benefit of law. Any person may waive the advantage of a law intended solely for that person's benefit. A law established for a public reason cannot be contravened by a private agreement.

1-3-205. Limit on rights. A person shall so use that person's own rights as not to infringe upon the rights of another.

1-3-206. Consent. A person who consents to an act is not wronged by it.

1-3-207. Acquiescence. Acquiescence in error takes away the right of objecting to it.

1-3-208. Own wrong -- no advantage. A person may not take advantage of the person's own wrong.

1-3-209. Fraudulent dispossession. A person who has fraudulently dispossessed oneself of a thing may be treated as if the person still had possession.

1-3-210. Acts on one's behalf. A person who can and does not forbid that which is done on that person's behalf is considered to have authorized it.

1-3-211. Acts of others. No one should suffer for the act of another.

1-3-212. Benefit -- burden. A person who takes the benefit shall bear the burden.

1-3-213. Grant includes essentials. One who grants a thing is presumed to grant also whatever is essential to its use.

1-3-214. Wrong -- remedy. For every wrong there is a remedy.

1-3-215. Equal in right or wrong. Between those who are equally in the right or equally in the wrong, the law does not interpose.

1-3-216. Preference to earliest. Between rights otherwise equal, the earliest is preferred.

1-3-217. Beyond control. A person is not responsible for that which a person cannot control.

1-3-218. Vigilance. The law helps the vigilant before those who sleep on their rights.

1-3-219. Form and substance. The law respects form less than substance.

1-3-220. What ought to have been done. That which ought to have been done is to be regarded as done, in favor of a person to whom and against a person from whom performance is due.

1-3-221. Apparent nonexistence. That which does not appear to exist is to be regarded as if it did not exist.

1-3-222. Impossibilities. The law never requires impossibilities.

1-3-223. Idle acts. The law neither does nor requires idle acts.

1-3-224. Trifles. The law disregards trifles.

1-3-225. Particular versus general. Particular expressions qualify those which are general.

1-3-226. Preference for contemporaneity. Contemporaneous exposition is in general the best.

1-3-227. Smaller within larger. The greater contains the less.

1-3-228. Superfluity. Superfluity does not vitiate.

1-3-229. Certainty. That is certain which can be made certain.

1-3-230. Void act. Time does not confirm a void act.

1-3-231. Principal. The incident follows the principal and not the principal the incident.

1-3-232. Avoiding voidness. An interpretation which gives effect is preferred to one which makes void.

1-3-233. Reasonableness. Interpretation must be reasonable.

1-3-234. Third parties -- who suffers. When one of two innocent persons suffers by the act of a third, the person by whose negligence it happened must be the sufferer.

Like the California maxims of jurisprudence, the Montana maxims are a mixture of maxims of equity, canons of statutory construction, and other pieces of advice.

While there is considerable overlap between California's and Montana's maxims, I notice that some of California's most mysterious maxims ("3530. That which does not appear to exist is to be regarded as if it did not exist" ; "3547. A thing continues to exist as long as is usual with things of that nature") are not present in Montana's maxims. There is some overlap in mysterious maxims, however, on the "certainty" front, as Montana's quizzical 1-3-229 maxim ("That is certain which can be made certain.") is the same as California's maxim 3538.

Like the California maxims, Montana Code Annotated Title 1, Chapter 3, Part 1 precedes the text of the Montana maxims and notes that the maxims serve only to "aid the just application" of Montana's laws. A quick check of the notes of decisions, however, fails to uncover Montana case law as clear as that in California holding that the maxims of jurisprudence are of little use when the language of a statute is clear. 

Furthermore, it seems that some of Montana's maxims have been cited extensively. For intance, 1-3-281 -- the "vigilance" maxim -- has been frequently cited in cases that establish the existence of the defense of laches. In light of these frequent citation, and in the absence of strong case law disapproving of the maxims, it looks like Montana litigators who cite Montana's maxims may be taken a bit more seriously than California litigators who cite California's maxims.

These are just a few observations after my quick run-through of Montana's maxims of jurisprudence. Like the California maxims, Montana's maxims are an interesting insight into guiding principles for the interpretation and application of the law, and they can serve as a good starting point for those interested in learning more about canons of statutory construction and maxims of equity.

Technological Advances and Incentives to Steal

From the CrimProf Blog, I learned of this interesting article in the New York Times from a few days ago that explains a notable decline in the rate of car thefts over the past twenty years. From the article:

The most important factor is a technological advance: engine immobilizer systems, adopted by manufacturers in the late 1990s and early 2000s. These make it essentially impossible to start a car without the ignition key, which contains a microchip uniquely programmed by the dealer to match the car. 

Criminals generally have not been able to circumvent the technology or make counterfeit keys. “It’s very difficult; not just your average perpetrator on the street is going to be able to steal those cars,” said Capt. Don Boller, who leads the New York Police Department’s auto crime division. Instead, criminals have stuck to stealing older cars.

The article goes on to note that while thieves still target older cars, the value of these cars' parts is on the decline as time goes on, which reduces the profitability of car-theft rings and chop shops. This means that while older cars can still be stolen, the likelihood of them being targeted will decline as their parts lose value.

This particular explanation may not apply to all thefts -- the article notes that cars stolen in California are often taken for use in drug trafficking -- but it is good to see that a decline in thefts is occurring as the profitability of stealing cars declines.

This story is also worthy of attention in light of a push for smartphone manufacturers to include "kill-switch" technology in their phones. This technology would allow smartphone users to disable their phones remotely in the event that they are stolen, rendering the phone useless to the thief or the thief's customers. California is in the process of passing a bill that would require this technology in new smartphones -- the bill recently passed in the Senate and is now before the governor. For more on the California bills, I recommend this coverage by the Washington Post and CNET.

The Times presents convincing evidence that removing the profit from stealing certain cars deters the theft of those cars. Kill switches remove the profit from stealing phones by rendering them unusable once stolen, and would likely deter the theft of smartphones in a similar manner.

The Times' report on declining auto theft rates is encouraging news (especially to me, as an owner of a Honda Civic that is just new enough to be an unappealing target for thieves). I hope that makers of smartphones and legislatures considering bills similar to California's learn their lesson from vehicle technology so that this type of theft deterrence can be applied to more and more goods.

[UPDATE 8/17/2014: I have edited the title of this post]

The Constitutional Limits of Missouri's Statute Permitting Police Officers' Use of Deadly Force

A lot of important things have been said about the shooting of Michael Brown by a police officer, Darren Wilson in Ferguson, Missouri and the following protests and law enforcement reactions. Here, I want to make a few points about the shooting itself and the various legal proceedings that may follow.

Missouri's has a law that permits the use of deadly force by police officers, and this law isvery broad on its face. But this law would have limited application to an excessive force lawsuit against Wilson. Missouri's statute on officers' use of deadly force purports to justify deadly force in any situation where an officer reasonably believes a suspect has committed a felony and where deadly force is immediately necessary to effect the arrest. But the Fourth Amendment limits officer use of deadly force to situations where the defendant poses a danger to the officer or others, or where there is probable cause to believe the suspect has caused serious physical harm to somebody.

While Wilson would therefore not be able to take advantage of the statute's broad language in defending against an excessive force lawsuit, Wilson would probably still be able to raise the statutory defense in a criminal proceeding against him. While the constitutional limits on officers' use of force are relevant in civil claims that the officer has violated a suspect's rights, these constitutional limits would probably not apply in a case where the officer is the subject of a criminal proceeding.

Robin Williams, Depression, and the Legal Profession

Yesterday, the world lost an incredible talent when Robin Williams took his own life. As many of my friends know, Robin Williams was my favorite comedian and I would often amuse baffle and disturb anybody willing to listen to my renditions of some of his routines.

Robin Williams's death has inspired an outpouring of tributes as well as a broad discussion of depression and suicide. Robin Williams suffered from depression, and his death reminds us of depression's insidious power of undercutting and ruining lives -- even if the outward demeanor of those affected suggests otherwise.

Depression is a particular problem for those in the legal profession. Earlier this year, the American Bar Association Journal reported that lawyers are 3.6 times more likely to suffer depression than nonlawyers, and that lawyers rank fourth in suicide rates by profession.

This problem is not new. This problem is not going away. And this is something that people in all levels of the legal profession -- students, lawyers, professors, and judges -- must bear in mind, discuss, and combat.

For a profound exploration of this issue, I recommend a series of posts by Brian Clarke at the Faculty Lounge from back in the spring. Clarke describes how depression pervades the legal profession and legal education. He then describes his own story of falling into the "hole" that is depression -- and how he found the support and resources to climb out of the hole. Finally, Clarke offers advice on how to broach the subject of depression and promote discussion of the topic. Those posts are available here, here, and here, and I strongly recommend that everybody read them in full. The American Bar Association also has resources for help on its Commission on Lawyer Assistance Programs page.

Robin Williams's death is a tragedy. I can only hope that his legacy will be one of laughter, and one that inspires those who feel that all is lost to reach out and find the help they need.

UPDATE - 8/13/2014

Brian Clarke reacts to Robin Williams's suicide in this blog post at The Faculty Lounge.

The Self-Denying "Legal Advice" Subreddit

Earlier today I came across a subreddit for "legal advice" where users post various legal questions and other users submit answers. You can browse it here.

I was amused by the "Guidelines" page for the legal advice subreddit. On one side of the guidelines page (and on every page accessed under the subreddit) are standard disclaimers that one may usually find on law firms' websites, or other websites that discuss legal topics. Here are some of the disclaimers:

• Any advice found here IS NOT legal advice. Reddit is not a substitute for a real lawyer.

• Please only use responses as guidelines to better prepare yourself for when you meet with a lawyer. 

• Lawyers everywhere usually offer low-or-no cost consultations.

 . . .

• Please do not delete your post after you've received help. If you're worried about your identity, create a throwaway. We want to help as many people as possible, and that includes those who may stumble upon your post later.

 . . .

• Posts containing primarily negative comments, and lacking in advice, will be summarily removed without warning. Users who are consistent problems will be banned. Post to help, not to flame.

After reading these disclaimers, it is difficult to tell whether the "legal advice" pages contain legal advice. On one hand, the later posts indicate that non-advice posts will be removed and that posts should not be deleted so that other people can use them. But on the other hand, the first bullet point indicates that material on these pages "is not" legal advice -- and in bold, capitalized letters no less.

Maybe some of this confusion can be cleared up by looking at the guidelines themselves. Here are some of them:

1. /r/legaladvice is here for simple questions and basic understanding about the law. Your best bet is always to get a local attorney and give him or her the full set of facts in your case.

2. /r/legaladvice is primarily read by legal professionals from the USA. As such, questions about other countries can be difficult to answer. Do not take this personally; laws differ wildly when you cross borders, and none of us want to give bad advice.

3. /r/legaladvice will tell you what the proper legal answer is. You may not like that answer. You may disagree with that answer. Heck, we may not like or agree with the answer. But it's the correct one for our legal system. If you want to debate the law, there are other subreddits for that.

4. /r/legaladvice is not your lawyer, and never will be. We do not have a full command of the facts in your situation. We will not appear for you in court, write you letters, or do hundreds of hours of legal research for free. We're here to help clear up some of the mystery and confusion surrounding the law, and to help people better understand it.

These guidelines appear to indicate that no lawyer-client relationship is formed, but essentially assert that /r/legaladvice provides legal advice, with guideline number three claiming that these pages will give the "proper legal answer."

While it is nice to see this subreddit disclaiming that no lawyer-client relationship is formed, it is somewhat unsettling to see these pages repeatedly assert that they are giving legal advice. While each page contains a disclaimer that no legal advice is provided, this claim is contradicted by other disclaimers and by the /r/legaladvice guidelines.

While I would hope that most people would not trust legal advice from reddit users, I suspect that there are some out there who would still think that the advice is reliable. Moreover, since most states make it a crime to give legal advice without a license, I suspect that many people who are posting answers to other users' questions are technically committing a crime (see, e.g., California's law against the unauthorized practice of law). While it may normally be difficult to enforce laws banning the unauthorized practice of law, by placing all the questions and answers online, this subreddit allows users to post their legal advice online, which both broadcasts it to the world, and which immortalizes it on the internet.

Reddit could try to mitigate some of these concerns by changing their guidelines and disclaimers to uniformly disavow the notion that legal advice is being provided. But I doubt that this would successfully change the pages' content from being legal advice since the entire premise of the subreddit is to give answers to legal questions.

Light Blogging This Week; Reading Recommendations

This week I will be on vacation at Lake Tahoe, so there might be some light blogging during the days to come. During my vacation and in the month or so I have until work begins, I hope to catch up on some reading I have been meaning to do. Here are some of the articles I want to read before I get back into a regular work schedule:

Become a Lawyer Without Going to Law School?

From the New York Times:

California is one of a handful of states that allow apprenticeships . . . in lieu of a law degree as a prerequisite to taking the bar and practicing as a licensed lawyer. In Virginia, Vermont, Washington and California, aspiring lawyers can study for the bar without ever setting foot into or paying a law school. New York, Maine and Wyoming require a combination of law school and apprenticeship. 

The programs remain underpopulated. Of the 83,986 people who took state or multistate bar exams last year, according to the National Conference of Bar Examiners, only 60 were law office readers (so-called for the practice of reading legal texts as preparation). But at a time when many in legal education — including the president, a former law professor — are questioning the value of three years of law study and the staggering debt that saddles many graduates, proponents see apprenticeships as an alternative that makes legal education available and affordable to a more diverse population and could be a boon to underserved communities.

The problem with this, however, is that people who read law still need to take the bar exam. After sacrificing three days of my life to the California Bar Exam I think that there are still some pretty unpleasant things that people in legal apprenticeships have to undertake in order to practice law.

While I think that the bar exam was a difficult experience, I think that I would have been in a much worse position without a solid foundation of legal knowledge that law schools can provide in a systematic and thorough manner. The realities of legal apprenticeships reflect this:

None of the states help prospective law readers locate a supervising lawyer, and finding one willing to take on the responsibility of educating a new lawyer can be difficult. Bar passage rates for law office students are also dismal. Last year only 17 passed — or 28 percent, compared with 73 percent for students who attended schools approved by the American Bar Association.

. . .

Robert E. Glenn, president of the Virginia Board of Bar Examiners, was less circumspect. “It’s a cruel hoax,” he said of apprenticeships. “It’s such a waste of time for someone to spend three years in this program but not have anything at the end.”

Those who do manage to pass the bar often do so after taking it several times. And without a law degree, clerkships and jobs in biglaw are tough to land.

While the Times has some anecdotes about people who have passed the bar soon after a legal apprenticeship, and even some people who have managed to make it into big law firms without going to law school, I don't think that the legal apprenticeship route is generally a good one. Most people who take this approach may end up with less debt, but their chances of passing the bar are low, and their chances of becoming practicing lawyers are seriously diminished as a consequence.

And those who are bright enough to pass the bar exam and land traditional jobs without going to law school are probably bright enough to write a strong application that would get them a hefty scholarship at an accredited law school. The scholarship would eliminate most or all of law school's tuition costs and would give students the resources and systematic learning that law schools are designed to provide. The law school may not be the best in the country, but it would give students a much better chance at passing the bar and having more career options.

Legal apprenticeships are an interesting feature of the legal education landscape, and there may be some people who are well-suited for these programs. But for the most part, I think that legal apprenticeships run the risk of being over-romanticized, and the hard realities of the bar exam and the demands of legal employers and clients make reading law a risky option for those considering a a legal career.