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.

18 Responses to “The state of military justice scholarship”

  1. Rob M says:

    Maybe it’s because military law scholarship is produced primarily by practicing military lawyers. Newton is dead right that most scholarship is written for fellow like-minded theoretical professors, because that’s who decides who gets tenure, and that’s the reason they write in the first place.

  2. sg says:

    The military has The Uniformed Services University of the Health Sciences, in which personnel are trained as doctors and nurses and other advanced medical specialties with emphasis on the military aspects of their medical duties.
    Would the military legal community benefit from such an institution in your view?

  3. Dwight Sullivan says:

    SG,

    We actually already have three such institutions: the Naval Justice School in Newport, RI, which provides a 10-week training course to new lawyers from the Sea Services, the Air Force JAG School at Maxwell AFB, which provides similar training to new Air Force lawyers, and the Army JAG School in Charlottesville, VA, which not only provides similar training for new Army lawyers, but also has a 10-month-long master of laws program for every new Army JAG major, plus some lawyers from other services. All three schools also present various short courses to provide continuing legal education to military lawyers.

    All three schools also publish a law journal or two.

    Periodically, proposals surface to combine the three schools into one as a cost-saving measure.

  4. Phil Cave says:

    Yep, go purple!

  5. sg says:

    Thank you, Sir. Has there ever been consideration of a primary degree-granting institution? I know that the USU takes people with batchelors’ degrees. I was wondering if there was ever consideration of a full blown law school.

  6. Dwight Sullivan says:

    SG,

    I haven’t heard of such a proposal — and I doubt it would get any traction.

  7. John O'Connor says:

    I think there’s a lot to be said about law review articles, in the main, being too theoretical to be of any use to anybody.

    That said, I don’t think the chief virtue of military journals is their practicality. To me, the most important thing for a military law journal is to be “interesting.” Anything, theoretical or practical, that gets JAGs thinking about military law is a good thing. I prefer that articles have some practical value, but the real issue that I saw was too many JAGs with too little interest in the origins, structure, and nuances of military law. Too many JAGS that I saw were interested in convincing members to the exclusion of the “law” aspects of their cases, when both are really important. When you’re a specialized area of the law, it’s important that your practitioners endeavor to know the area frontward and backward. Any article interesting enough to get practitioners to pick up a copy of the Army Lawyer or Military Law Review is a good thing.

  8. Anonymous says:

    no need, the military turns away almost 10 times more highly qualified law school grad applicants than they take in, so we are getting max quality accessions.

  9. Anonymous says:

    Being in the grad course right now, I think it would be difficult to combine the three and give full shrift to the nuances of the various service’s legal frameworks.

  10. Phil Cave says:

    Anon 1247: That may apply to all but the USMC. I happened to be talking with a senior Marine recruiter this week who is recruiting officers. Apparently they are having a difficult time making production on Marine JA’s? Anyone else hearing this?

  11. Brien Le Chien says:

    What military justice needs is not so much the equivilent of USUHS, but rather the equivilent of the Jenry M Jackson Foundation for the Advancement of Military Medicine (which comes complete with its own JER exception). If MJ could get the same funding and educational perks that HMJ gives out to doctors, it would be fantastic, and good for the profession.

  12. Mike says:

    I read MAJ Rosenblatt’s article and I concur that it is an important read and extremely well done. I think, however, it highlights several “shortcomings” that are actually important positive characteristics of military justice. MJ, for all of its flaws, is flexible and portable giving commanders options always. Sometimes it is simply wise to send a hotly contested court-martial to the rear. Sometimes, the “deployment discount” is an important reality to maintain mission focus. In all justice matters, there is a party who has to answer the question, “how much do we care about this offense? What is it worth?” In the MJ system, we ordain commanders with the authority to make that value judgement – rightly so in my opinion. And the answer certainly varies based on mission requirements.

    As the article pointed out, Military Justice is not always a priority in a deployed environment – again, rightly so. I think the article infers that we should seek Pure Justice. If that is the case, then our systems fails. But in my opinion, we seek our own special flavor of justice – Military Justice. In that endeavor, I think the system provides its practitioners all the tools necessary to vigorously pursue pure justice with the caveat that military expediency and ultimate success reign supreme. The real task is getting commanders, and their legal advisors, to work hard and take advantage of the built-in flexibility to reach appropriate dispositions in each case. Better trained and more experienced JAs is all that is required to administer a world-class MJ system.

  13. Dew_Process says:

    Well said, Mike. You nailed it.

  14. noodle says:

    Theory has more practicality than Mr Newton might give credit for. OLC memos, anyone? It’s not all about charging your criminal cases down in Texas.

  15. Anonymous says:

    Pure Justice is some potent stuff. You want to cut it with something like Military Exigency to make it a little less hard-hitting.

  16. Anon. says:

    I agree that a single JAG school will not get traction in the near future. However, I believe there will come a time when we cannot ignore the cost advantages as well the improvement in jointness a single school could provide. I believe it would be simple to provide a basic UCMJ/federal litigation/legal assistance course of instruction and then break off into service specific instruction. The only downside is that the Navy, USMC and AF JAG communities (depending n where a single school is sited) would lose contact with their educational bases (Newport, Quantico, and Montgomery).
    The chaplain and medical corps have managed to accomplish this without losing their service identities.
    I have heard that the costs of combination outweigh the savings, but have never seen actual statistics.

  17. Dew_Process says:

    For those of you who have not read Mr. Newton’s article, he, in general, makes some valid points. E.g., in NY, because newly admitted lawyers were so lacking in “basic” skills, mandatory CLE requires that they take 32 hours of “transitional legal education,” i.e., practical skills or basic, entry-level courses, as well as ethics, law practice management, etc., which would seem to validate his point.

    However, his article does not mention an important bit of scholarship, Prof. [now, acting Solicitor General] Neal Katyal’s Comment, HAMDAN v. RUMSFELD: The Legal Academy Goes to Practice, 120 Harv. L. Rev. 65 (2006), available here:
    http://www.law.georgetown.edu/faculty/nkk/documents/katyal.harvard_000.pdf

    Neal is one of those Mr. Newton seemingly is targeting, yet in general he agrees with Newton’s core complaints. Just tossing this out here for those interested in the topic in general and a slightly differing perspective.

    DISCLAIMER: I worked closely with Neal during the entire Hamdan habeas litigation.

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