On My Nightstand: More on Preparing for War by J.P. Clark

A bit further along in Preparing for War: The Emergence of the Modern U.S. Army, 1815-1917, by J.P. Clark. I’m always looking to steal some time to get in a little reading every day, but it is a continual struggle–particularly after long days of reading at my day job.

Clark has done an excellent job so far of leading me through the army culture’s evolution as it responded to its experience, as well as its parent society.

Take this excerpt, for example, as Clark discusses the late 1800s:

But underneath political deadlock, society was undergoing a profound change from traditional personalized customs to new impersonal systems. That was, in broad terms, the difference between the Gilded Age and the Progressive Era. Naturally, such a momentous transition was neither instantaneous nor absolute. The broad trend, however, manifested itself in different ways across all aspects of society: in government, the patronage of party machines slowly yielded to an impartial bureaucracy manned by civil servants; in the private sector, unregulated free practitioners were subsumed by national credentialing associations for professions such as law and medicine; in the army, individual autonomy would be slowly subordinated to a general staff dictating a centrally determined notion of professionalism.

Beyond the clear and vivid, well-researched writing, I am particularly intrigued by Clark’s thesis.

Though still working through the details of my thesis, I believe a similar argument can be made about the evolution of military justice, both within the parent society and the law that governs its people.

Reading books like Clark’s, and other well researched and written articles, help refine the questions to be asked and hypotheses to test, even though they might not directly reference military justice. My intent is to share and celebrate these works on this blog . . . and to take good notes . . .

On My Nightstand: Preparing for War by J.P. Clark

I picked up Preparing for War: The Emergence of the Modern U.S. Army, 1815-1917, by J.P. Clark, a few weeks ago and added it to my reading rotation.

The inside jacket cover was particularly appealing.

The author, an active duty Army officer and former faculty at the United States Military Academy, “traces the evolution of the Army between the War of 1812 and World War I. . . .” But this was the part that hooked me:

Nineteenth-century officers believed that generalship and battlefield command were more a matter of innate ability than anything institutions could teach. They saw no benefit in conceptual preparation beyond mastering technical skills like engineering and gunnery. Thus, preparations for war were largely confined to maintaining equipment and fortification and instilling discipline in the enlisted ranks through parade ground drill. By World War I, however, Progressive Era concepts of professionalism had infiltrated the Army. Younger officers took for granted that war’s complexity required them to be trained to think and act alike—a notion that would have offended earlier generations.

Does that sound cool or what???

I’m a little over ninety pages in so far, and it is fascinating. This “industrialization” of American though on command, mobilization, organization, and training promises to be a fascinating insight on this aspect of the evolution of military society, and the broader society in which it exists. I’m hopeful that this will add to how best to understand the proper evolution of military law. So far, this book does not disappoint.

Check it out, share your thoughts, and pass along recommendations!

Intro to the Courts in the Inmate, Student, and Military Communities

It may be unnecessary but I am proceeding under the presumption that some readers may not be familiar with how cases and controversies in the inmate and student communities may arise in and proceed through the federal courts, how courts-martial arise in the military community, or both. So, a summary of the systems should help put some of the follow on discussion into context.

Inmate Cases

The overwhelming majority of individuals in the inmate community arrive there through state court convictions for violations of a state criminal law. Generally, their case will travel through the state court systems. These may include an intermediate (error correction) appellate court and a supreme (law declaring) court, or a single court that serves both functions. Don’t worry, lots of discussing coming on the differences between the error correction and law declaring function. Again, generally, these courts hear issues relating to the state criminal statute or state constitution, but also can hear alleged U.S. Constitution violations as part of the state appeal. Once the individual has exhausted the state appellate process, he can petition the Supreme Court of the United States to hear any federal constitutional issues that arose in his trial and appeal.

During this process, as well as afterward, conditions experienced during an inmate’s incarceration may give rise to a claim that the institution (or a policy, statute, regulation, etc.) violates one or more of the inmate’s federal constitutional rights. Those lawsuits begin in federal district court.

United States District Courts are the trial courts in the federal system. They have jurisdiction to hear both criminal and civil cases such as, in our example, an inmate’s lawsuit. There is at least one district court in each state, and I believe ninety-four district courts in the United States. Members of the public located within the district are randomly selected for the venire (jury pool). This group is then questioned through a process called voir dire until a jury is selected. The losing party can choose to appeal his case to one of the thirteen United States Courts of Appeals. This is an appeal as of right. If the appellant chooses to appeal, the court must hear the case. The losing party at this level may petition the Supreme Court of the United States to grant review of the circuit court’s decision (called a petition for a writ of certiorari). Granting a petition is discretionary. Last I checked, the Supreme Court receives approximately 9,000+ petitions a year and grants less than 100 of them.

A recent example is Holt v. Hobbs, 574 U.S. 352 (2015). An inmate, a devout Muslim, serving his sentence in Arkansas state prison filed a suit in district court claiming the state’s policy prohibiting inmates from growing beards violated his religion. The district court ruled against him and the circuit court agreed. The inmate then filed a pro se (on his own) petition, and the Supreme Court agreed to hear his case. It ultimately concluded that Arkansas failed to prove its policy could overcome strict scrutiny review and ruled in favor of the inmate.

Student Cases

Cases and controversies in the student community arise in a similar way. They usually begin with a policy or other decision that the student believes violates a constitutional right. These claims, like inmate claims, are civil claims and travel through the federal court system.

Military Cases

Military cases are criminal prosecutions. There are basically three levels of courts in the military justice system: courts-martial, courts of criminal appeals, and the United States Court of Appeals for the Armed Forces (CAAF).

Unlike federal district courts, courts-martial are not standing courts. They are temporary tribunals formed through an order issued by the appropriate commander for the limited purpose of receiving evidence and issuing a verdict concerning criminal charges brought on the authority of that commander. Nowadays, the commander that orders the court into existence picks the venire, and the senior judge advocate of the respective service selects the presiding military judge. This power is often delegated, but the important point is the military judge is not within the chain of command. Because these are not standing courts, there is no set number of courts-martial within the military.

In contrast, there are four Courts of Criminal Appeals: Army, Air Force, Navy-Marine Corps, and Coast Guard. These tribunals are comprised of senior judge advocates selected to serve for a set period of time by the senior judge advocate of the respective service. With some recent exceptions due to the Military Justice Act of 2016, these tribunals generally must hear appeals only if an Accused (military defendant) receives a certain sentence. This is often a certain amount of confinement and/or a certain type of discharge. Like circuit courts, these are appeals as of right.

Like the Supreme Court, the CAAF has a largely discretionary docket. Appellant’s must petition the court requesting it grant review. Of the 1,500 or so (roughly) petitions received annually, the court has granted less than fifty a year for briefing and oral argument in recent years.

If the CAAF grants review and decides the case, its decision can be reviewed by the Supreme Court upon a successful petition for a writ of certiorari. Though there have been some recent exceptions, this generally happens about once a decade. If, on the other hand, the CAAF denies review, the case ends. The Appellant can seek collateral review in federal district court, but that isn’t relevant for this thread of discussion.

This is some context for the discussion that will follow along this thread. There is much more that I will flesh out as appropriate, but hopefully readers will be able to have a better understanding of some of the explanations, critiques, and analysis that will follow.

What Inmates, Students, and the Military Share in Common

Service members in the United States military are not excluded from the constitutional protections they swear an oath to protect; it’s just that “military necessity” requires these protections be applied differently to this community. There are individual situations that arise in the general population which necessitate an exception to an otherwise constitutional requirement (a search warrant or rights advisement, for example). But “military necessity” appears different. It is essentially a blanket exception for an entire community of people.

I began researching other communities whereby some reason justified a similar blanket exception to compare how this principle is applied. I found two—inmates and students.

I published an article in the University of Memphis Law Review[1] that examined the legal landscape in these three communities. The Supreme Court of the United States (“Court”) has held that individuals in these communities do not give up their constitutional rights simply because they belong to their respective communities. But the same general reasons require a different application to these communities: order, discipline, and safety. The gravity of these needs, and the complexity of these specialized communities, requires a somewhat substantial deference to those who administer them.

In spite of these circumstances, the Court has actively supervised and engaged with the inmate and student communities. Using a well-understood framework, it applies strict scrutiny (see here for a brief introduction) to statutes and regulations that purport to infringe upon a community member’s constitutional rights. The military community gets something less.

Unlike the inmate and student communities, in which cases and controversies arise in multiple state and federal courts, courts-martial are limited to the military justice system. Like the federal and many state systems, the military justice system has three levels of courts. The highest is the United States Court of Appeals for the Armed Forces (“CAAF”), a five member civilian Article I court. One, but certainly not the only, explanation for the Court’s substantial hands-off approach to the military community is the existence of CAAF. It arguably serves as a court of last resort, much like state supreme courts.

A second observation is the absence of any established framework to analyze constitutional questions in the military community. It isn’t defined; judges just know it when they see it.

These two observations seem a good place to start delving into deeper. After comparing and contrasting the similarities and differences in the judicial institutions in which cases and controversies in these communities arise, we’ll start a little tour of the inmate community first.


[1] 46 U. Mem. L. Rev. 61 (2015).

Putting an (Eventual) Bow On Some Initial Research Questions

My initial foray into military justice scholarship began a number of years ago with a general hypothesis:

The Supreme Court of the United States is today, in part, largely hands off toward the military justice system because of the existence of the United States Court of Appeals of the Armed Forces, a civilian court sitting atop a three-tiered judicial system. Though it is perceived, and perceives itself, as a court of last resort, it does not appear to often act like one. This is because the military jurisdiction created by the Uniform Code of Military Justice in 1950 was a compromise between those advocating for the elimination of command control of the military justice system and those advocating maintaining the existing system.

It is interesting because the military justice system is a decently sized jurisdiction compared to the fifty states. And if the United States Court of Appeals for the Armed Forces were an Article III intermediate appellate court, hearing every court-martial appeal as a matter of right, its workload would most closely mirror that of the United States Court of Appeals for the First Circuit.

Not only is it a sizeable jurisdiction, Congress used the military justice system as the framework for creating the military commissions system to prosecute certain “enemy belligerents” (think 9/11, War on Terror type folks). But Congress provided noticeably more due process to those belligerents than it provided American service members subject to military justice. Fewer than ten military commissions have reached completion in the nearly two decades of their existence, yet commissions enjoy considerably more attention in academic journals.

I have enjoyed testing this hypothesis over the past several years. I’ll be sharing that experience on these pages for a while. Some of my research culminated in published articles, some I will share for the first time here. Along the way, I’ll let my mind wander and go on a few tangents and down some rabbit holes.

Center for the Study of Military Justice

Military justice is understood and studied by too few, and largely neglected by academia. Even top students at elite law schools cannot reasonably be expected to grasp the breadth of American law to adequately assess the sheer volume of legal scholarship submitted for publication consideration annually to determine which is truly novel, non-obvious, useful, and sound.

Discriminators are natural. Some examples include a preference for professors (preferably from elite schools) and judges, those with long established records of publication, and “hot” topics. All of this, of course, is driven by a desire to select articles likely to be cited.

This alone puts military justice scholarship at a disadvantage. And even more so because this area of law appears unapproachable to many scholars and the general public.

One way toward remedying this disadvantage is to de-mystify military justice and society. Through this blog, my academic writing, and elsewhere, I enjoy examining military justice and telling its story.

Another is to cultivate, encourage, and recognize outstanding scholarship in military justice and related disciplines. That is the space I hope the Center for the Study of Military Justice (C4SMJ) will fill.

C4SMJ is a recently formed 501(c)(3) non-profit organization dedicated to the cultivation and encouragement of the study of military justice. This is an interdisciplinary approach that includes encouraging and supporting research that informs the proper understanding and study of military justice.

C4SMJ will be rolling out its initial program over the next several months. Information can and will continue to be found on this blog (here) and C4SMJ’s website, which is currently under development.

C4SMJ is classified a public charity and, because of my day job, will not solicit nor accept federal funding. So, broad based public support is vital to C4SMJ’s success. And, because of its 501(c)(3) status, contributions may be completely tax deductible.

Those interested in learning more and staying up to date can visit C4SMJ’s page on this blog. Better yet, why not sign up to automatically receive updates! Visit C4SMJ’s page or, to make things even easier, simply fill out the form below and keep an on your inbox over the next several months!

** C4SMJ does not share, nor will it sell, any contact information**

Landmark Case: United States v. Jacoby

United States v. Clay, 1 U.S.C.M.A. 74 (1951), held that service members are specifically excluded from the protections enshrined in the Constitution. Instead, they were solely entitled to the statutory rights granted them by Congress. These rights, referred to as “military due process,” may mirror those found in the Constitution, but they need not be. That all changed with the CAAF’s decision in United States v. Jacoby, 11 U.S.C.M.A. 428 (1960), which makes it a landmark—if not THE landmark—military justice decision.

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Another Look at the Supreme Court’s Military Justice Vagueness Doctrine

I previously explored the rule set down by the Supreme Court (“Court”) in Parker v. Levy[1] that “the proper standard of review for a vagueness challenge to the articles of the Code is the standard which applies to criminal statutes regulating economic affairs.”[2] After recently coming across some material on the level of scrutiny applied to criminal statutes regulating economic activity under the Commerce Clause in Article I of the Constitution of the United States, I dug a little deeper. And it surprised me.

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On the Origins of the Reasonable Doubt Standard of Proof

It is (or should be) well understood in American society that the Government must prove you guilty beyond a reasonable doubt before taking away your liberty or your life—the highest standard of proof available in our criminal justice system. But what if I told you this standard has absolutely nothing to do with protecting those accused of crime? What if I told you the reasonable doubt standard is an ancient theological concept established to increase, not reduce, convictions?
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Museum of the American Revolution

Much of military law remained relatively unchanged in the nearly 200 years between the American Revolution and the enactment of the Uniform Code of Military Justice in 1950. Understanding how we lived and fought during the Revolution helps understand why certain laws were enacted, which of course informs the question of whether that reason still exists in the modern military. So it is exciting to recognize a relatively new museum dedicated to the American Revolution. From the museum’s website:

Opened on April 19, 2017, the Museum of the American Revolution explores the dramatic, surprising story of the American Revolution through its unmatched collection of Revolutionary-era weapons, personal items, documents, and works of art. Immersive galleries, powerful theater experiences, and interactive digital elements bring to life the diverse array of people that created a new nation against incredible odds. Visitors gain a deeper appreciation for how this nation came to be and feel inspired to consider their role in the ongoing promise of the American Revolution. Located just steps away from Independence Hall, the Museum serves as a portal to the region’s many Revolutionary sites, sparking interest, providing context, and encouraging exploration.

Any description here of the museum’s core and special exhibits, and its collections, simply do it no justice.

I encourage any reader to click on the link below and explore this fascinating look into the beginnings of this great experiment.

I have yet to visit Philadelphia, but this museum is definitely on my list for an eventual trip.

Website: amrevmuseum.org
Instagram: amrevmuseum
Facebook: @amrevmuseum
Twitter: @amrevmuseum