A bit over 18 months ago, this column featured an article that was written by Air Force Judge Advocate Rodrigo Caruço and published by Vermont Law School: In Order to Form a More Perfect Court: A Quantitative Measure of the Military’s Highest Court’s Success as a Court of Last Resort, 41 Vt. L. Rev. 71.

In my original coverage, I explained that Major Caruço’s work first quantifies the extent to which CAAF’s decisions have tended towards error correction as opposed to the declaration of legal principles. After surveying comparable appellate courts in the civilian jurisdiction, his article posits that a healthy court of last resort – as CAAF should be – predominately engages in principle declaration – which CAAF does not.

My coverage of Major Caruço’s article posited that his measurement of the extent to which CAAF engages in the correction of errors rather than fulfilling its purpose of principle declaration may be an indicator of that court’s health, but it might better be seen as a measure of the overall health (or dysfunction) of the military justice system. My premise being that, in a healthy criminal justice system, a court of last resort should not have to correct many errors because those errors should have been corrected by subordinate reviewing courts and authorities. Instead, the court of last resort should be free – in a way that CAAF may not be – to focus its docket on cases which allow for the “declaration of legal principle by creation, clarification, extension, or overruling.” See J. Dickinson Phillips, Jr., The Appellate Review Function: Scope of Review, 47 Law & Contemp. Prob. 1 (Spring 1984).

Major Caruço’s work was recently featured in the University of Miami School of Law’s legal scholarship blog, the Journal of Things We Like (Lots) – JOTWELL.  Specifically, Professor Stephen I. Vladeck, of the University of Texas School of Law, penned a piece for JOTWELL entitled Why Military Justice Doesn’t Get Enough Academic Attention. In it he praised Major Caruço’s article as being a rare example of quality among “the paucity of good military justice scholarship[.]”

Professor Vladeck supports Caruço’s proposed “series of procedural reforms that would principally increase the number of cases CAAF takes, with a specific eye toward increased law declaration from that court.” In the Professor’s view, such reforms would help address the problem that, in the military justice system, “too many legal issues are resolved on a case-specific basis by military trial judges without the rigors of meaningful appellate oversight.”

Ultimately, however, Professor Vladeck asserts that providing for meaningful appellate oversight of the military justice system will require Congressional intervention.  He argues that Congress should enlarge the class of cases subject to mandatory review at CAAF.  He also insists that federal law should be amended to permit servicemembers to seek Supreme Court review even if CAAF declines to hear their case. This latter measure would not only improve appellate oversight, but it would expose the system to increased – and beneficial – scholarly critique if only by making military justice cases more visible to the wider community of scholars who follow the Supreme Court.

2 Responses to “Scholarship Saturday: CAAF as sentinel species (revisited)”

  1. stewie says:

    As long as you are putting on the Service courts, appellate judges who in many cases have only a few years of crim law experience, or a few years of judge experience, then CAAF is always going to be primarily an error-correcting court.
    Being a judge is hard at the trial level. I’ve got over a decade of crim law experience and while I would love to get that assignment I sure as heck would be pretty darn nervous that I’d screw up on an hourly basis. Doing it for even two tours isn’t going to make you an expert.
    But it’s not like we are filling our Service Courts with even that level of experience routinely. Although it seems to have gotten better during my time from where it was before when an entire panel might have 5 or less years of criminal law experience.
    One solution might be to make the Service Courts also civilian-led with tenure of some sort. Continue to use military judge advocates at the trial level.

  2. anon says:

    Sorry, but referring to the Supreme Court of the United States as “the Court” in an article about the CAAF made this a very awkward read.  And although there’s a lot of text, I’m not sure how anyone is served by getting CAAF explicitly out of the error correction business and making review more like Supreme Court review.