Wednesday, May 30, 2007

CAAFlog Talk, with Linda Richman returns

I recently noted a law review article by JO'C. And the upcoming volume 189 of the Military Law Review will include my article about the actual operation of the military death penalty system. My reading this evening will be Professor James Liebman's recent law review article, Slow Dancing with Death: The Supreme Court and Capital Punishment, 1963–2006, 107 Col. L. Rev. 1 (2007).

But a recent New York Times article tells us that law review articles are becoming increasingly irrelevant. What's your view? Are military law journals, which are much more practical than theoretical, more relevant than the typical law review article? Are relevance and practicality virtues or vices? Discuss.


John O'Connor said...

Law review articles were relevant once? And I say that as someone who's written six.

I can't say that I'm a huge fan of most military justice law review articles. Ones written by law professors often are shrill attacks on the military justice system with no real understanding of the way the system works, the military imperatives underlying it, and a simplistic treatment of existing "military" precedents. Student-written comments are generally worse. I also find that when the Military Law Review publishes articles written by TJAGSA students, they seem to stress extensive footnoting over original analysis.

Way too often, in my view, articles on "military" law (particuarly law review comments) take a practice that has existed forever and somehow "discover" that it is unconstitutional, with little in the way of argument other than the facile (and generally unhelpful) comment that it's done differently in the civilian world, or an emotional claim of unfairness without serious consideration of what has been held sufficiently fair in prior cases.

But that's a huge generalization, as there are a number of law review articles that I find highly thought-provoking. I'll recommend these two, which are probably my favorites (not counting, of course, anything CAAFlog writes):

Frederick Bernays Wiener, American Military Law in the Light of the First Mutiny Act's Tricentennial, 126 Mil. L. Rev. 1 (1989)

George S. Prugh, Jr., Observations on the Uniform Code of Military Justice: 1954 and 2000, 165 Mil. L. Rev. 21 (2000) (particularly the part reprinted from Prugh's 1954 article).

It's also worth noting that O'Callahan v. Parker essentially grew out of a well-argued but (in my view) horribly inaccurate law review article published in 1960, Duke & Vogel, The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction, 13 Vand. L. Rev. 435 (1960). So, there's always hope for those budding authors inclined to discover new constitutional infirmities in centuries-old military justice practice. I'm sure the variable size of court-martial panels will be the next thing declared unconstitutional.

Eugene R. Fidell said...

There's good news and bad news about law reviews. The good news is that much of value is being written and published about our favorite subject--and increasingly in the civilian law reviews. I was not on the NIMJ committee that screened articles for this year's Kevin J. Barry Prize (chaired by Prof. Beth Hillman), but I understand that there were numerous serious contenders. Now for the bad news: I suspect much of what is written is read by few if any people. This may reflect the redirection of scholarly interest into other media such as the blogs--of which CAAFlog is a super example. Blog posts tend to be short (exceptions of course come to mind, such as the excellent "Balkinization" site). "Net, net," things are obviously shifting, and it's hard to know where they'll settle down.

Anonymous said...

For the practical I tend to gravitate to the Army Lawyer or that Navy Justice School memos. and I have found both very useful.

CAAFlog is good motivation to keep up on recent caselaw.

Nothing like a war to bring attention to military justice.