Wednesday, January 09, 2008

Falcon - Dicta or Binding Precedent? You Make the Call

I will keep this short and let the comments decide, particularly since CAAFlog has eloquently summarized Falcon below. In Falcon CAAF said the gambler's defense from Wallace did not apply in Falcon because the accused was charged under Art. 123a, not Art. 134. Essentially they are saying the Wallace gambler's defense has no place in this case. Then, after making that HOLDING, CAAF goes on to "expressly" overrule Wallace . . . in a case where they said Wallace did not apply. Isn't there some prudential or case-or-controversy-esque limit on CAAF overruling precedent in a case where the precedent does not apply? Talk amongst yourselves.

2 comments:

CAAFlog said...

This is an instance where CAAF's Article I status is liberating. It isn't bound by Article III's case or controversy limitation. Nevertheless, "Courts established under Article I of the Constitution, such as this Court, generally adhere to the prohibition on advisory opinions as a prudential matter." United States v. Chisholm, 59 M.J. 151, 152 (C.A.A.F. 2003) (per curiam).

Anonymous said...

CAAF wants to be an Art III court, just can't figure out how to act like one. See Moreno (another advisory opinion - by the same judge).