In Order To Form a More Perfect Court

It’s been a few months since I’ve been able to post or otherwise update the site. I try to post monthly, typically regarding a project I’m working on (or something a project makes me think of) or something I’m reading. But the past few months have been quite busy at my day job and have also included some travel. So, I’ve been spending all the time I can spare trying to get my latest article ready for spring 2016 submission season. Now that it is done and submissions have started, I can share some thoughts on what I’ve spent the last year or so working on, here and there.

I have been interested in military legal institutions for some time. They fascinate me. So does the seemingly non-existent scrutiny of them. I started with examining the United States Court of Appeals for the Armed Forces’ (“CAAF”) application of its military necessity doctrine.[1] This doctrine generally applies constitutional principles and Supreme Court (“Court”) precedent to the military legal system unless there is a military necessity that justifies and/or necessitates a different application. In doing so, I learned that there are three communities within the United States that, though they retain their constitutional rights, the needs of their community require a different application of those rights. These are students, inmates, and members of the United States military. But while the Court remains deeply engaged in establishing the contours of how the Constitution is to be applied to the student and inmate community, it almost completely defers supervision of the military community to CAAF.

I’ve been thinking through CAAF’s role in the military community over the past year. Well, over a number of years, but more rigorously over the past year. Specifically, I’ve been thinking about the following questions. Is CAAF perceived, and does it perceive itself, as a court of last resort? Or is it viewed as the first real intermediate appellate court with the service courts acting as mere reviewing agencies? If CAAF is viewed as a court of last resort, does it act like one?

What I’ve discovered is that CAAF is a court of last resort that far too often publishes decisions as if it were an intermediate error correction court. There are numerous potential reasons for this reality; perhaps CAAF no longer views itself as a court of last resort and instead sees itself as an intermediate appellate court. Perhaps it does not understand how to act as a court of last resort. Perhaps there is a general lack of competence in military intermediate appellate courts to function as error correction courts. I just can’t be certain. This presents both concerns and opportunities for a legal system facing ongoing scrutiny over its legitimacy.

More study is required into the competence of military intermediate appellate courts to determine if this is the reason for CAAF’s high number of error correction decisions, but regardless of the rationale, there is more work CAAF can do as a court of last resort. In my most recent article, currently under consideration for publication, I propose both a procedural and substantive change to CAAF’s approach to petitions for review and published decisions. I propose a revised Rule 21, CAAF’s rule governing factors for granting review, to make clear that CAAF is in the primary business of law declaration, not error correction. In addition, I propose CAAF signpost its decisions to delineate when it is engaging in law declaration, as well as when it engaging in error correction. This serves at least two purposes. First, it clearly declares for practitioners which decisions are precedential and which simply correct trial errors not caught at the intermediate level. Based on the varied experience of advocates in each of the military services, this improves military practice at the trial level. Second, it highlights the inadequacy of intermediate courts to address issues of error correction in order to encourage increased competency at that level of appellate review.

I’m looking forward to studying how intermediate military appellate courts address issues and how appellate advocates frame issues to CAAF. In the interim, I’m hopeful a law review or journal will view my latest article as timely, original and worthy of publication.


[1] Rodrigo M. Caruço, Treating Members of the Military at Least as Well as Inmates and Students: Determining When Military Necessity Requires Infringing Upon Constitutional Rights in Cases Before the Court of Appeals for the Armed Forces, 44 U. Mem. L. Rev. 61 (2015).

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