The Enlistment Contract: A Uniform Approach

This article examines the diverse views, the resulting problems, and the feasibility of a uniform approach to enlistments. The inquiry begins with an historical analysis of the soldier-state relationship

Federal Rules Pending Public Comment

In August 2011, the Administrative Office of the United States Courts published several rules for public comment. The amendment to Rule 11 would require the judge to apprise a defendant who wishes to plead guilty that, if convicted and not a United States citizen, the defendant may be deported, denied citizenship, and denied future admission to the United States. Several amendments have been proposed for Rule 12 with reference to the appropriate times for pleadings and pretrial motions, and the consequences and standards of review for untimely motions. The change to Rule 34 is intended to conform the rule to the proposed amendments to Rule 12, which would remove language that a claim that the indictment or information fails to state an offense may be raised at any time. Finally, an amendment was proposed for Federal Rule of Evidence 803(10) which would incorporate a “notice-and-demand” rule for some evidence

Judicial Federalism and Supreme Court Review of State Court Decisions: A Sensible Balance Emerges

State courts are free to exercise final authority as arbiters of state law and adopt state standards that protect individual rights more than federal law. While state courts have responded to such urgings with expansive rulings, they have not always been careful about spelling out in their decisions whether they were relying on state law, federal law, or both. This judicial imprecision creates a jurisdictional dilemma for the Supreme Court when it is asked to review the state court decision. If the state\u27s decision rests on independent and adequate state grounds, the Court will apply judicial restraint and decline review. The genesis of the Supreme Court’s “independent and adequate state ground” rule is generally considered to lie in Murdock v. City of Memphis. The Court held that presence of a federal question in a state court decision did not empower the Supreme Court to decide state issues; if there was a state ground that sufficiently supported the judgement. Deciding whether a state court decision was based on a sufficiently broad nonfederal ground generally involves two separate determinations: whether the state decision was grounded on independent state law, and if so, whether that law was adequate to support the judgement. The Supreme Court noted in Henry v. Mississippi the state procedural ground will not be considered adequate unless it serves a legitimate state interest. One of the principle reasons for the Court’s independent and adequate state ground rule is respect for state courts. However, potential tensions between federal and state court arise. It is also clear that a workable and practical balance is needed. That balance emerges from Michigan v. Long. The Court’s new option for handling ambiguous state decisions which might rest on an independent and adequate state ground is a reasonable rule

Federal Rules Update: Technology-Related Rules

In June 2009, the Standing Committee on the Federal Rules of Procedure and Evidence authorized publication for comment on a number of technology-related rules of criminal procedure. Criminal Rule 1 would state that the terms “telephone,” “telephonic,” or “telephonically” mean any form or live electronic voice communication. Rule 3 would allow officers to submit a complaint and supporting material electronically. Changes to Rule 4 would address electronically processed and submitted arrest warrants. Proposed new Rule 4.1 would permit magistrate judges to consider information presented electronically in deciding whether to issue a warrant or summons or approve a complaint. The amendment to Rule 9 would permit a court to issue a summons or arrest warrant based on information supplied by telephone or other reliable electronic means. Under the amendment to Rule 32.1, a court may allow use of video teleconferencing in a proceeding to decide whether to revoke or modify the defendant’s probation or supervised release. Rule 40 would permit video teleconferencing for appearances under the rule. Rule 41 would move the current provisions dealing with requesting warrants by electronic means to proposed Rule 4.1. Rule 43 would be changed to permit the court to use video teleconferencing for the arraignment, plea, trial, and sentencing in misdemeanor cases. Finally, the Rule 49 amendment addresses electronic service and filing

The Military Justice Conundrum: Justice or Discipline?

This article focuses on the long-standing debate over the purpose and functions of the American military justice system and whether the system is intended to provide for good order and discipline or to provide justice. The author provides a summary of the current procedures and practices in that legal system and discusses the roles of commanders and armed forces attorneys. He addresses the various thematic approaches which have been used to describe the relationship between justice and discipline and applies a crime-control and due process model to various features of the military justice system. He concludes that the system was originally designed in the 1770’s to enforce discipline and that on the whole, the current procedures and policies continue that approach

Federal Rules Update: How Rules Are Made: A Brief Review

A number of amendments to the Federal Rules of Procedure and Evidence became effective on December 1, 2009. The change to Criminal Rule 7 deleted subdivision (c)(2), which required that the indictment include notice that the defendant has an interest in forfeitable property. Criminal Rule 32 now provides that the presentence report state whether the government is seeking forfeiture of property. Criminal Rule 32.2 received six amendments concerning criminal forfeiture. Criminal Rule 41 created a two-step process for seizing and reviewing electronic storage media. Further, of the Rules Governing § 2254 Proceedings, Rule 11 was created to make the requirements concerning certificates of appealability more prominent, and Rule 12 renumbers the former Rule 11. Of the Rules Governing § 2255 Proceedings, Rule 11 parallels the content of Rule 11 from § 2254. Finally, a number of time-computation amendments were made to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure

Captain’s Advisory Council Notes

On 24 and 25 June 1974, the Captain’s Advisory Council, with the cooperation of the Fort Meade JAG shop, sponsored a Regional Continuing Legal Education Conference at Fort Meade. The purpose of the conference was to provide a medium for presenting a continuing legal education program which would complement existing programs as well as allow junior officers of the JAG Corps to meet in a relaxed, yet productive, atmosphere. After a Council subcommittee outlined a tentative agenda, council members representing various fields of military law planned and implemented general presentations to the conference as a whole, as well as seminars and workshops. The response of the conferees was most encouraging; most felt that holding such conferences was beneficial and that they should be instituted in other regions. That response, when viewed along with the wealth of enthusiasm and suggestions resulting from the conference, certainly provides impetus for the planning and implementation of future conferences. There is always a need for continuing legal education, and a regional continuing legal education conference is but one viable means of meeting that end

Wagner, Valadez, and Harrison: A Definitive Enlistment Trilogy

Enlistments continue to generate judicial and administrative interest. Over the past few years the topic has been raised in a variety of forums and forms; in some instances the law of enlistments has been refined and questions answered. But in other areas, the law remains unsettled, open to continued speculation, and subject to a variety of interpretations. One area where enlistment law has received keen scrutiny is the subject of enlistment contracts vis a vis the question of personal jurisdiction. A recent trio of Court of Military Appeals decisions, United States v. Wagner, United States v. Valadez, and United States v. Harrison, sheds some dispositive light on that issue. This article will examine these three cases and their potential impact on the law of enlistments. The first section reviews the three decisions and the remaining sections deal with some of the recurring issues raised in enlistment law and addressed by the Court in this most recent trilogy

Captain’s Advisory Council Notes

On 24 and 25 June 1974, the Captain’s Advisory Council, with the cooperation of the Fort Meade JAG shop, sponsored a Regional Continuing Legal Education Conference at Fort Meade. The purpose of the conference was to provide a medium for presenting a continuing legal education program which would complement existing programs as well as allow junior officers of the JAG Corps to meet in a relaxed, yet productive, atmosphere. After a Council subcommittee outlined a tentative agenda, council members representing various fields of military law planned and implemented general presentations to the conference as a whole, as well as seminars and workshops. The response of the conferees was most encouraging; most felt that holding such conferences was beneficial and that they should be instituted in other regions. That response, when viewed along with the wealth of enthusiasm and suggestions resulting from the conference, certainly provides impetus for the planning and implementation of future conferences. There is always a need for continuing legal education, and a regional continuing legal education conference is but one viable means of meeting that end

Federal Rules Update: How Rules Are Made: A Brief Review

In January 2008 and June 2008, the Standing Committee on the Rules of Procedure and Evidence authorized publication for comment on a number of rules of criminal procedure. The amendment to Criminal Rule 5 would include a requirement that, in deciding whether to release or detain a defendant, the court must consider the “right of any victim to be reasonably protected from the defendant.” The change to Criminal Rule 12.3 states that the name and address of the victim should not be automatically disclosed to the defense. Criminal Rule 15 would permit an unavailable witness to be deposed outside of the United States, without the presence of the defendant. Criminal Rule 21 would permit a judge to transfer a case to another district for the convenience of “any victim.” The amendment to Criminal Rule 32.1 would clarify the application of 18 U.S.C. § 3143(a) to a court’s decision to revoke or modify probation or supervised release. Finally, an amendment to Federal Rule of Evidence 804 would provide that a declarant’s hearsay statements against penal interest are admissible, if the declarant is unavailable