For a lecture I gave at Friday’s Judge Advocates Association/CAAF appellate advocacy symposium, I thought it would be interesting to look at what CAAF cites in its opinions.
I surveyed 20% of CAAF’s opinions from last term and counted every citation of authority. (Each citation of authority was counted once per case. So, for example, if Moreno was cited 10 times each in 2 opinions, it would be counted twice.)
Here are the top five kinds of authority that CAAF cited with the percentage of all cites that fall within that particular category:
1. CAAF/CMA opinions (42%)
2. Supreme Court opinions (19%)
3. Article III Courts of Appeals opinions (15%)
4. CCA/CMR opinions (5%)
5. UCMJ articles (5%)
When you throw in a few stray judicial opinions from other sources, 82% of all citations of authority in the surveyed cases were case law. And R.C.M.s, M.R.E.s, and Part IV of the MCM didn’t crack the top five (though M.R.E.s were the sixth most cited kind of authority and R.C.M.s were the seventh most cited kind of authority).
But it probably makes sense why so many more cases would be cited than statutes or rules. Consider a case like United States v. Bright, 66 M.J. 359 (C.A.A.F. 2008). The essence of the case concerns a single UCMJ provision: Article 120. But the case cites five different CAAF/CMA opinions construing Article 120 (Simpson, Hicks, Cauley, Webster, Clark). Bright also includes a smattering of other CAAF/CMA cases for questions such as the standard of review. So in our common law system, where case law provides a layer of analysis on top of the statutory language, it’s probably the norm rather than the exception for a breakdown of authority cited by a court to include more cases than statutes and rules.