A zebra theory of jurisprudence

Somewhere in the sports pantheon, well below major league baseball and NCAA basketball (and, I’m sure the No-Man will insist, NCAA lacrosse), is a business trading as the National Football League. The NFL has an instant replay system that allows an aggrieved coach to challenge some, but not all, calls by the referee. The rules governing instant replay review are horribly arcane; they make the EPA’s General Conformity Rule seem simple by comparison.

Before this season, a referee’s call that a player was NOT down by contact was reviewable but a referee’s call that a player WAS down by contact was not. That meant that if the ball came out of a player’s hands as he was being tackled, the aggrieved coach could challenge a call that the player had fumbled the ball before he was down. But if the referee ruled that the player was down before the fumble, the team that recovered the fumble -- and would have had possession of the pigskin but for that call -- couldn’t challenge it. (While not important for purposes of my overwrought metaphor, calls that the player was down by contact are now reviewable for purposes of determining whether there was a fumble.)

I never saw any official policy to support this theory, but NFL commentators often said that refs were encouraged to call plays in a way that would make them reviewable. So if a ref was uncertain whether a ball was fumbled before the player’s knee hit the ground, he should resist the urge to blow the whistle so that an instant replay review would be available.

Now, finally, I get to the subject of this post, which is, as dedicated CAAFlog readers (both of you!) will have guessed, the Lane dissent. (The Lane dissent is to CAAFlog what Britney Spears is to the National Enquirer: the source of endless fascination in a generally disapproving sort of way.)

In Lane, 64 M.J. 1 (C.A.A.F. 2006), Judge Crawford dissented from the majority’s ruling that Senator Graham’s service as an Air Force Court of Criminal Appeals judge violated the Constitution’s Incompatibility Clause and that, as a result, the Air Force Court’s decision in Lane’s case was void.

Judge Crawford’s dissent advanced three overarching arguments: (1) Senator Graham’s simultaneous service in Congress and as an Air Force Court of Criminal Appeals judge did not violate the Incompatibility Clause; (2) even if it did, any violation of the Clause was harmless; and (3) any rule that simultaneous service as a Member of Congress and a CCA judge violates the Incompatibility Clause should be applied prospectively only.

I have previously written about the misuse of precedent to support that third point. Now let’s look at the second. Hypothesize that the majority had ruled that Senator Graham’s service on the Air Force Court had violated the Incompatibility Clause but that the error was harmless. That would have been the worst of all possible results because it would have declared a constitutional error but insulated that declaration from further Supreme Court review. Presumably Judge Crawford would welcome a Supreme Court ruling overturning the majority’s holding of an Incompatibility Clause violation. Yet her alternative holding would have prevented it. Such insulation would seem particularly unwarranted from Judge Crawford’s perspective when the only harm that results from the majority’s holding is that the Air Force Court has to ink up its Good Housekeeping Seal of Approval and stamp the case a second time – hardly an onerous burden on the system.

As an appellate defense counsel, I was always infuriated when a court would rule against me on the merits and then say something to the effect of, “Even if we were to hold that the military judge’s ruling had been erroneous, we would hold that the error was harmless.” It seemed that the court was trying to insulate its legal ruling from further review. The Lane majority, on the other hand, had the courage of its convictions. And the dissent forgot the lesson from the NFL: if you are on the losing end of a call, it’s better to have instant replay review.

--Dwight Sullivan