Returning to Illusory Tenant's jeremiad against a law student, Daniel Suhr wrote something that looked at whether some decisions written by Justice Butler have had "legs," i.e. have they led to further changes in Wisconsin law or been cited by the courts of other states.
IT focuses on two decisions of the Ohio and Vermont cases included in Daniel's piece. These courts faced the same question as that present in Knapp. Should they follow Patane (that is how they phrased it) under the Vermont and Ohio constitutions?
IT goes to great lengths to establish that Justice Butler did not "make" or "cause" these courts to rule in the way that they did. But Daniel never made that claim. He noted that they cited Knapp in reaching the same result. IT's suggestion that there is some kind of lawyers' rule or custom that one should say that they "cited Knapp after holding ..." or words to that effect is wrong. In 26 years of practice at what most people would regard as relatively high level of the profession, I have never heard of such. If I cite a case to a court or, if the court cites a case in the course of an opinion, we are generally understood to be saying that we find it to be persuasive on whatever the issue before us happens to be.
Both the Ohio and Vermont courts decided, like Knapp, not to follow Patane and to base their decisons in their state constitutions. Of course, the Ohio or Vermont Supreme Courts did not "follow" Knapp in the sense that they found it to be binding precedent. What they did do is cite Knapp as consistent with their interpretation of the Ohio or Vermont constitutional provisions that were similar to the Wisconsin provision at issue in Knapp and the federal provision at issue in Patane. As IT knows, when courts do this, it is not as some idle statement meant to satisfy the curiousity of someone who just happens to be thumbing (or, nowdays, left clicking) through the reporters. They tend to use like minded decisions from other jurisidictions to confirm their conclusions and to bolster the persuasive nature of their decision. Judges also take comfort in knowing that other courts have reached the same conclusion. We are a profession that likes company.
This doesn't mean that SCOWIS and Louis Butler "made them" do it or even that, had SCOWIS not decided Knapp as it did, they would have decided differently. But the argument that the citation of Knapp by other courts is insignificant strikes me as a strange defense of IT's candidate. I am sure that Justice Butler is proud of the fact that other courts cite his work. He would probably like to think that his work, of which I am sure he is rather fond, is influential and persuasive. I know, were I in his position, I would.
But this attempt to portray our student as inept or disingenuous also fails.
But I have more.