Landmark Cases: United States v. Clay

Anyone who survived law school or non-lawyers with an interest in the Supreme Court are probably familiar with some or most of the Supreme Court’s landmark decisions. There are even books written about them. Over the coming weeks and months, I will be highlighting what I believe to be landmark decisions by the military’s highest court. In this post, I highlight United States v. Clay, 1 C.M.R. 74 (C.M.A. 1951) and the “military due process” doctrine. Continue reading

The Role of the Judge in the Common Law Tradition

If the common law is a collection of customs, who is the keeper of the customs? Advocates will naturally argue their client’s position is in line with existing custom, but only one party can be right. Of course, that person is the judge (we are putting aside, for the moment, discussions about the role of the jury and how it entered legal practice). Blackstone’s description of the role and responsibility of the judge in the common law tradition is quite interesting.

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A Potential Working Definition of Military Common Law

One of the obstacles to researching military law is most of the scholarship occurred prior to the digitization of law journals. Many insightful articles are found by accident, buried in a footnote and inaccessible through research sites such as Westlaw and LexisNexis. One such article is CAPT Guy Zoghby’s 1965 article, Is There a Military Common Law of Crimes.[1] While he focuses on civilian offenses found in the Uniform Code of Military Justice (UCMJ), Zoghy does give us at least a starting definition of military common law.

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Journal of the American Revolution

Established in 2013, this online journal “is the leading source of knowledge about the American Revolution and Founding.” Nearly every day, I receive an email containing a series of well-written and insightful articles written by experts in the field. And it is FREE. In addition to the free online magazine, the journal produces annual hardcover volumes and oversees a book series focused on microhistories “about unknown or lesser-known topics,” as well as an insightful and informative podcast.

I’m excited to add this journal to the Selected Journals list and encourage you to check it out!

“Hello, boys! I’m baaack!”

Other than a day in May, Independence Day (July 4) is my favorite day of the year. So, in honor of the CLASSIC 1996 movie, Independence Day, you get the quote (a bit out of context; I’m not flying into any alien weapon). Took some time away from blogging to work on some Professional Military Education (PME) and to do some thinking about my research agenda and future projects.

Well, that is done (for now). So, time to get back at it!

First,  back to blogging.  But, unlike the past, longer, in-depth posts will be mixed in with more frequent shorter posts that will range from current developments, practice pointers (from my personal perspective), and highlighting other posts and publications, and more. My hope is to not only have a medium for my thoughts on military law and my ongoing education in military history and society, but to also demystify military law to non-military scholars, practitioners, and the general public.

Second, and the major reason for the temporary suspension, is the announcement of the launch of the Center for the Study of Military Justice (C4SMJ). This non-profit, 501(c)(3) organization is dedicated to furthering the study of military law, history, and society through providing grants to established and aspiring scholars. We are still in the development stage, but our first project will be our initial capital development. Much more to follow, but we are excited to discuss our plans with interested donors!

Subscribe to get updates on posts and the C4SMJ, or check back often for updates! Looking forward to it!

Temporary Suspension of Posting

After some thought, I have decided to temporarily suspend blogging while I reflect on my next major project and my vision for this particular project. I launched this blog a few years ago to accompany a three article idea studying military appellate institutions. The idea was to use this medium to pull back the curtain on the military justice system through blending the understanding of military law, history, and society and thus making it more accessible to civilian lawyers and other interested readers. The goal included publishing often, which became monthly. But after nearly six years and the third article under review for publication, my upcoming transition into a new job, and the daily rigors of my current day job, it has become much more difficult to keep up that pace. Plus, after being at this for quite some time, it is time to take a step back to think about how best to pursue my ultimate aspiration. For the time being, I will continue to maintain the site and keep the Bibliography updated. In time, I hope to return to this project with a more clear vision for this site’s ultimate purpose.

Understanding Military Intermediate Appellate Tribunals As Early Successes In, But Perhaps Now Left Behind By, Military Justice Reform

The debate over the appropriate role of the military commander in sexual assault cases remains a hotly contested issue among victim advocates, policymakers, and the military establishment. Listening to the rhetoric, one can excuse the interested reader for believing this is new—but it is not. Reformers both inside and outside the military have advocated for removing military commanders from military criminal law prosecutions for over 70 years.

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The Military Commander As The Military Magistrate — A Second Look

With things settling down at the new home and things apparently working out with the condo (fingers crossed!), it’s time to return to writing. My latest law review article is coming along nicely (I hope), so I thought I’d jump back into my blogging.

Military commanders are afforded tremendous power over members of the military under their command, as well as the physical installations (bases) where they command. As it relates to military justice—i.e. military criminal law—the commander is essentially the mayor, the district/state attorney, the person who selects the group (venire) from which the jury comes out of, and also serves as the military magistrate. And in these areas, it is safe to say these powers are exercised broadly—and with little to no questioning of that authority. This post discusses this latter power and reviews the seminal case in this area and suggests that perhaps the legal, political, social, and military history surrounding military justice reform may not make the question so clear cut.

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