In Loving v. United States, 68 M.J. 1 (C.A.A.F. 2009), Judge Erdmann wrote the opinion of the court, in which Chief Judge Effron and Judge Baker joined.  Judge Stucky concurred in part and in the result while Judge Ryan dissented.  Now look at the Loving opinion on LEXIS.  No Stucky concurrence; no Ryan dissent.  How could they have been omitted?

5 Responses to “The perils of electronic research, continued”

  1. Patrick Pflaum says:

    I’m not sure if you’ve pointed this out before, but the same thing happened in McCracken, 67 MJ 467. The LEXIS version (2009 CAAF LEXIS 743) omits the separate opinions of Judge Baker (concurring) and Judge Stucky (concurring in part and dissenting in part). As in the Loving case, the separate opinions are referenced in the header, but not included in the body.

  2. Anonymous says:

    relax folks, I believe once the case is paginated and final Lexis will update the case and include the concurring opinion, etc…

  3. Christopher Mathews says:

    Unfortunately, online research services aren’t always all they’re cracked up to be. I have in mind a small but illustrative example:

    In 1997, the Air Force Court of Criminal Appeals published its decision in United States v. Eatmon. One of the issues raised by the appellant was the propriety of a sentencing instruction to the effect that confinement is intended to rehabilitate the offender, rather than to punish. The court concluded that the instruction was not misleading and did not form a basis for relief. Over the years this “Eatmon instruction” became a standard part of the instructions toolbox for prosecutors and, as time went on, for military judges.

    In 2005, CAAF made summary disposition of United States v. Holmes. In that case, the appellant challenged the Eatmon instruction given by the judge; CAAF found error. But because the CAAF decision did not explicitly overrule Eatmon (as I recall, it made no reference to case at all), the electronic reporting services did not flag that decision in their databases. Counsel continued to request, and military judges contined to give, the Eatmon instruction.

    The next year, AFCCA decided United States v. Brewster, 64 M.J. 501 (A.F.C.C.A. 2006), another case challenging the instruction. That decision contains a footnote “expressly overrul[ing]” the Eatmon case (to the extent it endorses such instructions). That footnote, and the fact that Brewster was issued as a published opinion, were enough to get the reporting services to flag Eatmon. The rest is up to counsel and the courts-martial.

  4. Anonymous says:

    Another reason not to use LEXIS. But, I realize the AD folks are stuck with it.

  5. Phil Cave says:

    What’s a reason to use WestLaw?