An Invitation to My Passion

Three communities within American society are not entitled to the full panoply of constitutional protections enjoyed by their fellow citizens: inmates, students, and members of the military. In the inmate and student communities, the Supreme Court of the United States (“the Court”) has remained very active in developing a body of case law that defines the relationship between those communities and the Constitution. In contrast, the Court has largely ignored the relationship between the military community and the Constitution. Why? The United States Court of Appeals for the Armed Forces (“CAAF”).[1]

In a article currently under consideration for publication, I propose that this is the reason CAAF is an important legal institution worthy of continued study. In this article, I summarize the Court’s approach to the inmate and student communities and contrast that to the Court’s significant hands-off treatment of the military community. For example, relying on CAAF’s assertion that the Constitution applies to the military, the Court has assumed without deciding that this is so. Because it has left the heavy lifting to CAAF, it is important to scrutinize what CAAF has done in the area of constitutional rights, which has been to apply what I term the “military necessity doctrine.” However, as my article argues, CAAF has a bit more work to do in fully articulating a workable doctrine that will guide practitioners to focus issues before it and provide a method for the court to provide continued stability and uniformity in military law.

I discovered CAAF during my undergraduate studies. My legal writing professor offered extra credit to students who attended the upcoming oral argument in the case of United States v. Long,[2] to be heard by CAAF at a nearby law school as part of its Project Outreach program. Project Outreach is a “public awareness program to demonstrate the operation of a federal court of appeals and the military justice system.”[3] I was hooked. Though later admitted to higher ranking schools, I attended that same law school in large part because the Chief Judge began teaching there upon his retirement from CAAF. I then got the opportunity to serve as a law clerk at the court. In two years of clerking after graduation, I met many hardworking individuals doing tremendous work for both the service member and the military mission.

A student of military legal history for the past four and a half years, I remain fascinated by CAAF and other legal institutions in military society, as well as the individuals that have played important roles within those institutions. Over the years, I have noticed that many articles on military justice and its institutions do not appear in a Westlaw or Lexis search. This is because much, though certainly not all, of the rich writing in this area occurred between the 50s and 70s. As many readers know, Westlaw and Lexis (or even Google, for that matter) do not store every volume of every law review online. Thus, one is left with utilizing the Index of Legal Periodicals in a local law library, if there is one, or the database HeinOnline, with arguably less robust search capabilities.

Though not perhaps the most efficient method, I developed my database of articles through what can aptly be described as the “hunt-n-peck” or “treasure hunt” method. An article would lead me to earlier citations, which in turn led me to even earlier ones. If I eventually started running across citations already recorded, then it increased the likelihood that I reached that critical mass of scholarship in an area.

Finding that critical mass is important because, as in other academic disciplines, a literature review is a necessary prerequisite to understanding how an author knows, and his readers understand, how he is advancing the literature in a particular area. My experience as an articles editor in school taught me that such reviews are not as common in traditional legal academic literature.

So began the Bibliography page. I do not believe one similar in scale and currency exists, or at least I have been unable to find one. It is a work in progress to be sure. Over time, as I share my thoughts on this blog, I will continue to add categories and citations to it. Unfortunately, readers will be on their own to obtain copies of individual articles. However, as part of this project I will post, at random intervals, my summary of what particular articles offer. As I do that, I will create a link in the citation to the applicable post for subsequent interested readers. In time, law review editors reviewing submissions and potential scholars may have a convenient place to start their research, and I can continue to learn about authors, institutions, and key actors within them.


 

[1] Until 1994, the court was named the United States Court of Military Appeals. For consistency, I will always refer to the court as CAAF.

[2] 64 M.J. 57 (C.A.A.F. 2006).

[3] Id. at 58 n.1. In what I believe was the first Project Outreach case, CAAF noted that it

hoped that the thousands of students, service persons, military and civilian attorneys, and members of the American public who witness these hearings will realize that America is a democracy that can maintain an Armed Force instilled with the appropriate discipline to make it a world power and yet afford the members of that Armed Force a fair and impartial justice system which does provide the full protection of the Constitution of the United States and Federal law to its members.

United States v. Blocker, 32 M.J. 281, 282 n.1 (C.M.A. 1991).

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