What am I missing? Bonus points to anyone who catches the reference in the titles. Brenner FissellEditor-in-Chief
Cloudesley Shovell
6/18/2020 08:44:28 am
You're missing a riposte column!
Jason Grover
6/18/2020 01:17:13 pm
I agree with the good admiral. I think history and context are important here. The system grew out of a dissatisfaction with a WW2 split-system. The returning veterans wanted it changed as they got elected to Congress. And a good 10 percent of the WW2 vets had some experience with those split systems. So Congress updated the system, made it uniform, and tried to address many of those abuses and inequities. Then in 1968, they pushed the system more towards a civilian model. But in my view, factual sufficiency is an absolute balance to other parts of the system, like member selection and the lack of a jury of your peers randomly selected from your community. Change one side of the equation that protects servicemembers from system abuses without changing the other side that deprives them of constitutional protections afforded every other citizen disrupts the delicate balance. Over the last ten years, we've seen lots of systemic changes, so this is a sign of the times. But I think we'd be better off revamping the whole structure to keep that balance between fairness, justice, prompt resolution, and appropriate methods to ensure good order and discipline rather than a piecemeal attack on specific parts we don't like.
Brenner M. Fissell
6/18/2020 02:01:43 pm
Dear Admiral,
Cloudesley Shovell
6/18/2020 04:54:34 pm
Prof. Fissell,
Brenner M. Fissell
6/19/2020 02:09:36 pm
CS: understood, thank you! Alas my office is currently sealed off like an Ebola ward.
Zeke Kennen
6/19/2020 04:20:36 am
Congress has created a military justice system that differs in important ways from the civilian justice system that serves the broader population. For example, military members are not afforded the right to a trial before their peers - the panel is expressly required to be superior in grade to the accused. Further, the panel is not selected at random, but is instead hand-picked by the same officer (“convening authority”) that made decision to prosecute (“the decision to “refer” the case to trial). That panel is also small - a mere 4 members is permitted in special courts-martial. That matters because empirical evidence shows that smaller panels engage in less rigorous deliberations and, the smaller they are, the less likely they are to overcome biases among the group. Those deficiencies are only amplified by the fact that the relatively-small, prosecutor-picked, panel of superiors is also not required to be unanimous to convict the accused (a mere 3/4 concurrence is sufficient to convict).
Brenner M. Fissell
6/19/2020 11:35:54 am
Thanks, very interesting. Factual sufficiency as constitutive element of due process given other features. I think as a matter of underlying constitutional principle this is persuasive. As a constitutional law, perhaps not, given that this is Congress itself making the change. See Curry v. Sec'y of Army, 595 F.2d 873, 880 (D.C. Cir. 1979). As Phil Sundel used to say, Curry means that the process due is what Congress says is due. Comments are closed.
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