Law Commons^™

How Conscientious Objectors Killed The Draft: The Collapse Of The Selective Service During The Vietnam War, Bill Raley

Cleveland State Law Review

This Article argues that a key-but-overlooked factor in the Vietnam-era breakdown of the draft system was the Supreme Court’s expansion of the religious conscientious objector ("CO") exemption. It asserts that the Court understood that the CO exemption violated the Establishment Clause, but rather than strike the exemption down, the Court avoided the constitutional issue by interpreting away the religious element of CO statutes. The Article concludes that the Court’s rulings caused CO exemptions to skyrocket, which in turn caused the draft system to collapse toward the end of the Vietnam War.

The Cold Vacuum Of Arms Control In Outer Space: Can Existing Law Make Some Anti-Satellite Weapons Illegal?, Jeffrey A. Murphy

Cleveland State Law Review

The current space law paradigm came into existence when two major national powers were vying for supremacy after a catastrophic world war. The nuclear age had dawned. The United Nations drafted and ratified the Outer Space Treaty under these conditions with limited foresight to the specific nature of future space activities. As more nations and private actors enter the space arena, the nature of the weapons used in space has changed, and the number of targets and opportunities for collateral damage has greatly increased.

This Note looks at the weapons aimed at space and the laws that try to govern …

The Faces Of The Second Amendment Outside The Home, Take Three: Critiquing The Circuit Courts Use Of History-In-Law, Patrick J. Charles

Cleveland State Law Review

This article seeks to critique the circuit courts’ varying history-in-law approaches, as well as to provide advice on the proper role that history-in-law plays when examining the scope of the Second Amendment outside the home. This article sets forth to accomplish this task in three parts. Part I argues why history-in-law is appropriate when adjudicating Second Amendment decisions outside the home. Part II examines the benefits and burdens of utilizing history-in-law as a method of constitutional interpretation, while breaking down the alternative approaches employed by circuit courts when adjudicating Second Amendment decisions outside the home. Lastly, Part III offers practical …

Whatever Happened To Military Good Order And Discipline?, Colonel Jeremy S. Weber

Cleveland State Law Review

Discipline is often called “the soul of an army.” If this is so, the United States military seems to be experiencing a spiritual crisis. Article 134 of the Uniform Code of Military Justice (UCMJ) allows commanders to punish acts prejudicial to “good order and discipline,” but the reach of this provision has been increasingly limited in recent years. Appellate courts have repeatedly overturned convictions of conduct charged as prejudicial to good order and discipline, and in recent years, the military’s high court has issued a series of decisions limiting the reach of the UCMJ’s “general article.” Congress has also recently …

Book Review: Analyzing The Effectiveness Of The Tallinn Manual’S Jus Ad Bellum Doctrine On Cyberconflict,: A Nato-Centric Approach, Terence Check

Cleveland State Law Review

Review of: Tallinn Manual on the International Law Applicable to Cyber Warfare, Michael Schmitt, ed., New York: Cambridge University Press, 2013.

Post-Traumatic Stress Disorder In The Military: The Need For Legislative Improvement Of Mental Health Care For Veterans Of Operation Iraqi Freedom And Operation Enduring Freedom, Madeline Mcgrane

Journal of Law and Health

This Note argues that legislation requiring improved mental health treatment for veterans of OIF (Operation Iraqi Freedom) and OEF (Operation Enduring Freedom) is necessary to protect American service members from the dangers of mental illness. In order to prevent crimes and suicides committed by veterans of OIF and OEF as a result of undiagnosed PTSD (post-traumatic stress disorder), the United States Congress should enact legislation imposing requirements on all branches of the military that: 1) mandates screening of all veterans at risk for PTSD upon their return from deployment; 2) ensures veterans are provided with adequate and timely mental healthcare; …

Military Justice In The South, 1865-1868: South Carolina As A Test Case , Thomas D. Morris

Cleveland State Law Review

The end of Reconstruction involved an intricate interplay of legal rights and remedies with a bloody mix of racial violence. That is another story. What I have endeavored to address here is the role of the military in the first few years following the military defeat and surrender of the Confederacy.

Disguising Empire: Racialized Masculinity And The Civilizing Of Iraq, Nancy Ehrenreich

Cleveland State Law Review

I will argue here that the rhetoric used by the Bush administration (and the media) to sell U.S. military aggression to the American public has played upon the gender insecurities and racial biases of the population. To be more specific, it has reinforced a racialized national sense of masculinity by playing on the association of maleness with violent domination of people of color - domination seen as laudable because it is undertaken "for their own good." In so doing, it has also reinforced the message that the way for people of color in this country to become true "Americans" is …

It's Time To Put The Military's Death Penalty To Sleep , Michael I. Spak

Cleveland State Law Review

Part I will focus on the death penalty in the civilian sector of the United States. It begins with a brief history of and an introduction to death penalty laws in the United States. A critical examination of the primary arguments used to justify the death penalty follows. Part I next offers a brief overview of other independent reasons for the abolition of the death penalty. After having concluded that the application of the death penalty is unfair in the civilian sector and should thus be abolished, the article will then shift its focus to the death penalty in the …

Sexual Harassment In The Military: Time For A Change Of Forum , Michael I. Spak, Jonathan P. Tomes

Cleveland State Law Review

This article will review the current status of sexual harassment in the military, discuss why courts-martial are ineffective in punishing and deterring sexual harassment, and suggest that permitting sexual harassment claims in a forum other than the military justice system would help deter future sexual harassment in the military at no greater cost to military discipline and preparedness than is inherent in the current system.

The Health And Welfare Of The Palestinians Under Israeli Occupation, Neal Atway

Journal of Law and Health

This note will attempt to give a brief background on how the West Bank and Gaza Strip became the "occupied territories", analyze the treatment of Palestinians under Israeli occupation, and interpret the international law that relates to those territories, specifically the Fourth Geneva Convention and the United Nations Resolutions which address the protection of the health and well-being of the Palestinians under Israeli occupation.

De-Coupling The Military/Industrial Complex - The Liability Of Weapons Makers For Injuries To Servicemen, Barry Kellman

Cleveland State Law Review

This Article is about the military contractor defense: the legal doctrine which insulates weapons makers from liability to servicemen for injuries caused by defectively designed weapons. Essentially, the military contractor defense shields weapons makers from state product liability law because of fears that operation of that law will cause the judiciary to trespass into the military sphere. This Article suggests that the military contractor defense constitutes a rejection of the judicial role in regulating procurement. This rejection is an unwarranted step in favor of an overgrown military establishment. The theme of this Article is that military policy is something which …

Wrongful Fraternization As An Offense Under The Uniform Code Of Military Justice, Margaret A. Mcdevitt

Cleveland State Law Review

In view of the desire of the armed services to continue to prosecute fraternization and continued judicial sanctioning, this Note undertakes an analysis of the fraternization prohibition in order to illustrate the current problems. The first part of this Note proposes that the evolution of the prohibition demonstrates that fraternization has become exclusively a disciplinary offense. The development of the offense over the years also shows that the failure of the military to define the offense precisely by regulation or article allowed military courts to construct varying and confusing definitions. The second part of the Note analyzes the validity of …

Wrongful Fraternization As An Offense Under The Uniform Code Of Military Justice, Margaret A. Mcdevitt

Cleveland State Law Review

In view of the desire of the armed services to continue to prosecute fraternization and continued judicial sanctioning, this Note undertakes an analysis of the fraternization prohibition in order to illustrate the current problems. The first part of this Note proposes that the evolution of the prohibition demonstrates that fraternization has become exclusively a disciplinary offense. The development of the offense over the years also shows that the failure of the military to define the offense precisely by regulation or article allowed military courts to construct varying and confusing definitions. The second part of the Note analyzes the validity of …

Conscientious Objection To War: The Background And A Current Appraisal, Richard P. Fox

Cleveland State Law Review

This article reviews the legal history of conscientious objection to war in the United States. Then the current status of the law and the 1982 Selective Service Regulations are discussed and appraised. It is hoped that some of the popular misconceptions regarding conscientious objection will be dissipated by this article.

The Military And The Law, James K. Gaynor

Cleveland State Law Review

Military law is the law which governs members of the Armed Services and, to some extent, the relations of other persons with the Armed Services. Military law often is thought of as synonymous with court-martial, but that is not correct. The number of people who will be involved in a court-martial during a year-either as an accused, or as one having duties in connection with a court-likely will be less than two percent of any large military organization. Members of the military service, however, are involved with military law every day in the year. It governs the way in which …

Military Law And The Miranda Requirements, Gaylord L. Finch

Cleveland State Law Review

The purpose of this article is to examine the Code and its effectiveness in dealing with the military accused in the area of criminal procedure. Emphasis will be placed on the serviceman's right to counsel, the serviceman's Fifth Amendment privilege against self incrimination and the scope of the Bill of Rights when applied to the serviceman. The discussion will be limited to the relationship of the military to its own personnel.

Book Review, Norman E. Mcintyre

Cleveland State Law Review

Reviewing Alfred Avins, The Law of AWOL, Oceana Publications, 1957

Federal Civil Jurisdiction Of Military Justice, Chester B. Gynn Jr.

Cleveland State Law Review

Control exercised by the federal civil courts over courts-martial differs from that found in other types of cases involving the relation of federal and state courts. The federal civil courts are constitutional courts; the military courts are administrative courts established by Congress and empowered by the Constitution; while state courts receive their power from entirely different sovereigns. Thus, to determine the powers of review which federal civil courts have over courts-martial, reference must be made almost exclusively to cases involving courts-martial.

The Suppression Of Dissent In Wartime - England 1792-1795, Harry M. Broder

Cleveland State Law Review

As we search today for an effective solution of the problem of preserving our basic freedoms from internal and external enemies, it seems particularly appropriate to consider a some-what analogous situation in history. From 1789 to 1795, English opinion changed from widespread approval of the French Revolution and its aims to a hatred and fear that included all persons and ideas which advocated any departure from the status quo in England itself. As late as 1792, the possibility of war seemed so remote the the Army estimates were reduced. One year later, France and England were at war, and the …

An International Bill Of Rights For Prisoners Of War, John Mcginness

Cleveland State Law Review

On August 12, 1949 plenipotentiaries of sixty-one nations of the world, including the United States and the Soviets, concluded a Convention at Geneva which revised the Geneva Convention of July 27, 1929 relative to the treatment of prisoners of war. Many of these revisions are based upon the experiences of World War II. Although neither the United States nor the Soviets have ratified this Convention, the United States Forces in Korea have been, and are, under instructions to observe their provisions at all times. This Convention appears to be a positive step forward in the clarification of international law as …