Brent Newton–an adjunct faculty member at the Georgetown University Law Center and American University’s Washington College of Law–has written a law review article about the current state of legal education that’s getting quite a bit of buzz. Brent E. Newton, Preaching What They Don’t Practice: Why Law Faculties’ Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy, 62 S.C.L. Rev. 105 (2010) (available here).
The lion’s share of Mr. Newton’s article is devoted to the argument that law review articles have become “increasingly useless” to judges and practicing lawyers. Id. at 118. He charges that law review articles are written, at best, for an audience of fellow theoretical law professors and, at worst, for “the mirror.” Id. (quoting Andrew P. Morriss, The Market for Legal Education & Freedom of Association: Why the Solomon Amendment‖ is Constitutional and Law Schools are Not Expressive Associations, 14 Wm. & Mary Bill Rts. J. 415, 473 (2005)). And he quotes Professor Schlag’s contention that “American legal scholarship today is dead–totally dead.” Pierre Schlag, Spam Jurisprudence, Air Law, and the Rank Anxiety of Nothing Happening (A Report on the State of the Art), 97 Geo. L.J. 803, 804 (2009)).
But one place where legal scholarship has managed to remain relevant to practitioners is the military. Despite its faults (and it certainly does have faults), the body of scholarship published by the military’s various law journals is comprised almost entirely of what Mr. Newton would call “practical” articles instead of “theoretical” ones. I just reviewed a colleague’s brief that made extensive use of an article published in one of the military law journals. that article helped frame the argument my colleague advanced in his brief. I’ve previously lauded other articles in military law journals that similarly guided practitioners, such as MAJ Froehlich’s outstanding article, The Impact of Melendez-Diaz v. Massachusetts on Admissibility of Forensic Test Results at Courts-Martial, from the February Army Lawyer. And shortly before reading Mr. Newton’s article, I read MAJ Rosenblatt’s brilliant and fascinating article in the September Army Lawyer, Non-Deployable: The Court-Martial System in Combat from 2001 to 2009. If you haven’t read MAJ Rosenblatt’s article, READ IT NOW. It’s that important, it’s that interesting, and it’s that well-done.
Okay, have you read it? MAJ Rosenblatt makes an outstanding case that the UCMJ doesn’t work as intended in a deployed environment, advancing the memorable “Burger King Theory” to help make his case. Qualms about the UCMJ’s deployability certainly aren’t new — as the 1983 WALT Report demonstrates. See Lieutenant Colonel E. A. Gates & Major Gary V. Castla, Report to the Judge Advocate General by the Wartime Legislation Team, 104 Mil. R. Rev. 139 (1984); see also Colonel Ted B. Borek, Legal Services During War, 120 Mil. L. Rev. 19 (1988). But MAJ Rosenblatt provides fresh observations based on deep research into the manner in which the UCMJ actually worked (or didn’t work) in the deployed settings in Afghanistan and Iraq.
While MAJ Rosenblatt makes an outstanding case that changes must be made, I’m left unconvinced by several of his specific recommendations. His recommendation concerning expanded use of VTC for witnesses on the mertis seems sound. He also recommends restrictions on a deployed servicemember’s right to be represented at court-martial by a civilian counsel and eliminating the right to refuse non-judicial punishment for servicemembers receiving hostile fire pay. Recall that earlier this year, three SEALs refused NJP for acts allegedly committed in Iraq, all three hired civilian counsel, two of the three were actually tried in Iraq, and all three were acquitted. Recall also that their cases were widely publicized and the decision to prosecute them was strongly criticized by 40 Members of Congress. I sat through most of the third trial and I’m firmly convinced that justice was done. As I wrote at the time, I was not merely unpersuaded beyond a reasonable doubt, but unpersuaded by a preponderance of the evidence that SO2 McCabe was guilty of any of the charged offenses. Of course, I have no way of knowing what would have happened if those SEALs had been denied the right to refuse NJP or if they had been compelled to go to trial represented by military counsel alone rather than by a team of experienced civilian counsel and military counsel. Perhaps had they had no NJP refusal right, the relevant commander wouldn’t have punished them. But it is interesting to note that the three SEALs all risked far greater punishments and a federal conviction by insisting on a trial by court-martial. They obviously didn’t feel secure trusting their careers to the NJP process. Now obviously we shouldn’t make policy based on what happened in three particular cases. But those cases do give me great pause when reading MAJ Rosenblatt’s recommendations. MAJ Rosenblatt’s article also discusses specific Army NJP regulations. The article doesn’t appear to appreciate that the manner in which NJPs are conducted in the Army and Air Force are more protective of the servicemember’s rights than are NJP proceedings in the Marine Corps and Navy, nor that the consequences of an NJP may be greater for Marines and Sailors than for Soldiers. A statutory expansion of the exception to the NJP refusal right would presumably affect servicemembers from all branches, but the effect on those in the Department of the Navy would likely be more severe than for their Army and Air Force counterparts.
Despite my concerns about MAJ Rosenblatt’s prescribed cure, he certainly convinced me that the patient is sick. Some treatment is needed; I hope MAJ Rosenblatt’s article will be a catalyst for determining the optimal treatment and then implementing it. If so, then MAJ Rosenblatt’s article will further demonstrate the relevance of military justice scholarship.