Tag Archives: Military Law

Military Justice Since 1950: A Pyrrhic Victory?

By Eugene R. Fidell

With the major changes Congress enacted in the Military Justice Act of 2016,[1] perhaps it would be useful to try to sketch the arc of American military justice and its place in the national legal firmament since the Uniform Code of Military Justice (UCMJ) was enacted in 1950.[2] These comments are preliminary and reflect my personal views based on many years’ involvement with the military justice system. Not everyone will identify and arrange the data points the same way.

In the past, efforts have been made to characterize various periods, e.g., judicialization[3] or civilianization.[4] I would offer four basic phases, with leading figures for the first three. Like the Middle Ages, the Romantic Era, or the Industrial Revolution, these phases do not necessarily have bright-line start- or end-dates. In fact, they plainly overlap one another.

First, the period of reaction. I associate this initial period with Felix E. Larkin, for whom much of the credit for the UCMJ must go.[5] This period begins after World War II and ends with enactment of the Code five years later. This is largely a period of reaction to the abuses that were experienced in the administration of military justice during the war.[6] There were three primary features—

  • Creation of a civilian court of appeals[7]
  • Outlawry of unlawful command influence (UCI)[8]
  • Imposition of a single criminal code for all branches of the armed forces—although the services retained (and continue to retain) very substantial autonomy despite the ostensibly “uniform” code[9]

Second, the period of institution-building. I associate this period with Chief Judge Robert E. Quinn, the former Rhode Island Governor who led the Court of Military Appeals during its formative years.[10] The chief features of this period are—

  • The doctrine of “military due process”[11]
  • The related “Brosman doctrine” according to which the court was “freer than most” in picking the best rule of decision[12]
  • The court’s suprising willingness to entertain petitions for review that raise no legal issues
  • The related profligate use of the power to specify issues not raised by the parties[13]
  • Resistance to efforts by the Judge Advocate General’s corps to trim back the court’s powers[14]
Continue reading Military Justice Since 1950: A Pyrrhic Victory?

COVID-19 & Military Law

As a “specialized society separate from civilian society,” the military experiences not only many of the same challenges as the larger society as a result of COVID-19, but also other challenges arising in the contexts of their normal missions and times of crisis.

In light of the developments during the first half of 2020, Eugene Fidell’s article on COVID-19 and Military Law highlights some of the legal challenges that have arisen in the military world due to COVID-19. In doing so, he focuses on various perspectives, including the intersection between commanders’ responsibility for the health and safety of their personnel; systemic effects and adjustments to the internal administration of justice; and challenges presented to domestic law, legal institutions, and human rights following a shift to a domestic law enforcement mission. These perspectives have direct and indirect effects on unit cohesion, mission-readiness, mission-accomplishment, and public trust.

Military Justice: A Very Short Introduction (Book Review)

Eugene Fidell’s recently published book Military Justice: A Very Short Introduction fills an existing gap in academic military justice literature by providing readers with a condensed book focused solely on military justice. Fidell leverages his years of experience as both a practitioner and a scholar to bring us this “pint sized” book that covers topics ranging from the basics of military command to detention and military justice reform. Nevitt’s review of this “quick and easy military justice primer” makes it clear that readers from the newest law student to the most experience JAG could benefit from reading Fidell’s work.

Military Justice: A Very Short Introduction (Book Review)