Law Commons^™

After Action: The U.S. Drone Program's Expansion Of International Law Justification For Use Of Force Against Imminent Threats, Elodie O. Currier

Vanderbilt Law Review

Until the 2000s, the United States' attempts to shift international legal norms on imminence to allow for greater use of armed force abroad were largely unsuccessful. In the past two decades, however, drone use and careful legal gamesmanship by U.S. officials have opened an unprecedentedly broad allowance for use of force in imminent self-defense. As drones become increasingly available to state and non-state actors, this permissive regime poses a threat to national and international security. This Note analyzes two decades of international customary law formation around drone use outside of armed conflict through a new lens post U.S.-withdrawal of Afghanistan. …

Generals & General Elections: Legal Responses To Partisan Endorsements By Retired Military Officers, Hannah M. Miller

Vanderbilt Law Review

Retired generals and admirals of the U.S. military appear to be endorsing partisan political candidates in greater numbers, with more visibility. This Note argues that the practice represents a clear danger to civilian control over the military and weakens military effectiveness. It explains that while retirees remain subject to military jurisdiction, the existing array of statutory and regulatory restrictions on political activity cannot adequately address the problem. Neither can professional norms be expected to shore themselves up to solve it. This Note describes how political restrictions on service members have evolved over time in response to novel challenges to civilian …

Federalism And The Military Power Of The United States, Robert Leider

Vanderbilt Law Review

This Article examines the original meaning of the constitutional provisions governing the raising and organization of military forces. It argues that the Framers carefully divided the military between the federal and state governments. This division provided structural checks against the misuse of military power and made it more difficult to use offensive military force. These structural checks have been compromised by the creation of the U.S. Army Reserve, the dual enlistment of National Guard officers and soldiers, and the acceptance of conscription into the national army, all of which have enhanced federal military power beyond its original constitutional limits.

This …

Hung Up On Words: A Conduct-Based Solution To The Problem Of Conspiracy In Military Commissions, Joshua D. Foote

Vanderbilt Law Review

At 9:02 a.m. on September 11, 2001, the world watched in horror as American Airlines Flight 175 slammed into the South Tower of the World Trade Center on live television,' ending all consideration that the first collision might have been an accident. Halfway around the world, Ali al Bahlul sat in a remote part of Afghanistan operating a radio so that Usama Bin Laden could monitor reports of the attacks. That day, Al Qaeda terrorists killed 2,977 people, caused billions of dollars of economic damage, and initiated the defining sociopolitical issue of the early 21st century.

Legal practitioners have faced …

The Untouchables: Private Military Contractors' Criminal Accountability Under The Ucmj, Katherin J. Chapman

Vanderbilt Law Review

September 16, 2007 has been called Baghdad's "Bloody Sunday."' On that scorching afternoon in Baghdad, Iraq, a team of Blackwater Worldwide private military contractors slew seventeen Iraqi civilianS and wounded twenty-seven others. A Blackwater spokesperson claimed that the civilian contractors reacted in response to an attack by enemy combatants and "heroically defended American lives." Despite such claims, U.S. soldiers who arrived at the scene within twenty-five minutes found no evidence of enemy activity and characterized the event as criminal. Despite such evidence and notwithstanding four potential sources of criminal law-international law, host-nation law, U.S. civilian law, and U.S. military law-these …

Reforming Federal Habeas Review Of Military Convictions: Why Aedpa Would Improve The Scope And Standard Of Review, John K. Chapman

Vanderbilt Law Review

The writ of habeas corpus is a collateral remedy available to prisoners who have exhausted all available appellate remedies. Habeas corpus, which literally means "to have or produce the body," involves a court order directing the custodian of a prisoner to bring the prisoner before the court in order to assess the validity of the prisoner's confinement. The importance of habeas corpus in the federal system has been recognized since the drafting of the Constitution and its historical roots trace back as far as the 12th Century in England. It is a procedure designed to protect individuals by forcing the …

War And American Constitutional Order, Mark E. Brandon

Vanderbilt Law Review

In their introduction to a fine new edition of Alexis de Tocqueville's Democracy in America, Harvey C. Mansfield and Delba Winthrop claim that "[i]f the twentieth century has been an American century, it is because the work of America... has been to keep democracy strong where it is alive and to promote it where it is weak or nonexistent." By "democracy" they doubtless intend something akin to "constitutional democracy," "liberal democracy," or "republican government." I take each of these to be a rough proxy for a constitutionalist system that includes (1) institutions authorized by and accountable to the people (both …

International Nuclear Development In The Age Of Interdependence, William O. Doub, Lawrence A. Weiss

Vanderbilt Law Review

The proposal set forth in ... this Article admittedly is no full solution to the problem of preventing the spread of nuclear weapons. Just as important as the control over nuclear materials and technology is the political effort to provide nations with sufficient security so that they perceive little need to develop or acquire nuclear weapons. This Article does assert, however, that a necessary part of any full solution is the cooperative development of a new international consensus regarding the policies governing the international nuclear market and the means to effectuate these policies. Based on the success of the regime …

Book Reviews, Daniel H. Benson, Maxwell Bloomfield, Donald E. Schwartz

Vanderbilt Law Review

THEY CALL IT JUSTICE: COMMAND INFLUENCE AND THE COURT-MARTIAL SYSTEM. By Luther C. West. New York: The Viking Press, 1977. Pp.xii, 302. $12.95.

Reviewed by Daniel H. Benson

In his book West is dealing with a subject that is difficult to discuss without generating hostility, misunderstanding, and, occasionally, incredulity. He is attacking the classic military understanding of the basic purpose of the court-martial system. He asks the reader to accept his word and assurances concerning the accuracy of the problems he describes, over the assurances of the military justice establishment that all is well. In doing all of this, West …

Recent Cases, James H. Lokey, Jr., Stephen D. Goodwin, Charles L. Jarik

Vanderbilt Law Review

Constitutional Law--Criminal Procedure-Circuits Split over Application of Stone v. Powell's "Opportunity for Full and Fair Litigation"

James H. Lokey, Jr.

In Stone v. Powell,' the third 1976 decision, the Supreme Court made a limited but distinct break with precedent. Stone held that a state prisoner may not be granted federal habeas relief on the ground that evidence obtained in an unconstitutional search and seizure was introduced at his trial as long as the state has provided an "opportunity for full and fair litigation" of his fourth amendment claim." The Court, as noted previously, did not define what kind of "opportunity" …

Book Reviews, William L. Shaw, Cephus L. Stephens

Vanderbilt Law Review

BOOK REVIEWS

LITTLE GROUPS OF NEIGHBORS: THE SELECTIVE SERVICE SYSTEM. By James W. Davis, Jr. and Kenneth M. Dolbeare. Markham Publishing Co., Chicago, 1968. Pp. 268.

reviewer: William L. Shaw

====================================

THE SUPREME COURT AND THE NEWS MEDIA. By David L. Grey, Evansville: Northwestern University Press. 1968. Pp. 194. $5.95.

reviewer: Cephus L. Stephens

Survey Extended -- The Literature Of Military Law Since 1952, John E. Hartnett, Jr.

Vanderbilt Law Review

The passage of six years since the publication of A Survey of the Literature of Military Law--A Selective Bibliography' has not seen any slackening in popular and professional interest in military law noted in the original article. Indeed, the wide attention directed to the area of military law by the controversial decisions of the Supreme Court in the Toth and Covert cases has in a measure increased the flow of comment. Accordingly, the writer considered it in order to collect and publish the bibliographical information on the literature which has appeared in the interim, and in some measure to appraise …

Book Reviews, Robert J. Harris (Reviewer), Charles B. Nutting (Reviewer), Daniel Walker (Reviewer)

Vanderbilt Law Review

Book Reviews

American Constitutional Law By Bernard Schwartz Cambridge:Cambridge University Press, 1955. Pp. xiv, 364. $5.00

reviewer: Robert J. Harris

=================================

The Development of Academic Freedom in the United States By Richard Hofstadter and Walter P. Metzger New York: Columbia University Press, 1955. Pp. xvi, 527. $5.50

Academic Freedom in Our Time By Robert M. MacIver New York:Columbia University Press, 1955. Pp. xiv, 329. $4.00

reviewer: Charles B. Nutting

================================

Military Justice in the United States

By Robinson 0. Everett

Harrisburg: Military Service Publishing Company, 1956. Pp. 338

reviewer: Daniel Walker

Toth V. Quarles -- For Better Or For Worse?, William R. Willis Jr.

Vanderbilt Law Review

In summary, it would appear that the Supreme Court, through the Toth decision, has created a situation that bears a potentiality of injustice and social detriment completely out of proportion to that feared from the provisions in the Uniform Code of Military Justice unhesitatingly declared unconstitutional. If the Court had adopted a practical and realistic approach to the problem, comparing the rights of the individual under both the constitution and military law, and visualizing the problem created by its present decision, the result could have been different. Now, Congress must attempt remedial action and determine the method of cure that …

Book Reviews, James B. Earle, J. Allen Smith, Samuel E. Stumpf, Ingram Bloch, J. Raymond Denney

Vanderbilt Law Review

Book Reviews

The Oppenheimer Case: The Trial of a Security System

By Charles P. Curtis

New York: Simon and Schuster, 1955. Pp. xi, 281. $4.00

reviewer: Ingram Bloch

=============================

Trial Tactics and Methods

By Robert E. Keeton

New York: Prentice Hall, Inc., 1954. Pp. xxiv, 438. $6.65

reviewer: J. Raymond Denney

=============================

Military Law under the Uniform Code of Military Justice

By William B. Aycock and Seymour W. Wurfel

Chapel Hill: University of North Carolina Press, 1955. Pp. xviii, 430.

reviewer: James B. Earle

=================================

Why Johnny Can't Read

By Rudolf Flesch

New York: Harper & Brothers, 1955. Pp. ix, …

Book Reviews, Nels F.S. Ferre (Reviewer), Seymour W. Wurfel (Reviewer), Lloyd S. Adams (Reviewer)

Vanderbilt Law Review

Few topics are currently more at the center of both interest and need than that of Dr. Stumpf's new book. The ship of democracy is being tossed by heavy seas. Many are looking for a haven of faith. They tell us that the ship cannot stay afloat unless it reaches the well-protected harbor of religion. It needs at least to be overhauled, they say, and made more seaworthy in that harbor before it braves again the heavy onslaughts which it must necessarily breast. Dr. Stumpf probes too deeply into the relation between democracy and religion, however, to fall prey to …

Aspects Of The Military Law Of Confessions, Robert D. Duke

Vanderbilt Law Review

The Uniform Code of Military Justice, which became effective in May, 1951, was enacted largely in response to the criticisms leveled at the administration of military justice during World War I. The Code reflected the prevailing feeling that military justice should be brought more nearly into line with the criminal procedures followed in civilian courts. To further this objective, Congress required that in general court-martial cases legally qualified counsel be appointed to represent both the Government and the accused. The position of "law officer" was created and invested with much of the authority exercised by a federal district judge in …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases--

Attorney and Client--Contingent Fee Contracts--Divorce Action

Corporations--Corporate Power--Contributions to Philanthropic Institutions

Corporations--Criminal Anti-Trust Action--Indemnification of Directors for Litigation Expenses

Evidence--Presumption of Law and Inference of Fact--Retrospective Presumption of Continuity

Federal Procedure--Class Actions--Discretion of Trial Court

Income Taxation--Deductions--"Ordinary and Necessary"--Expenses

Income Taxation--False Statements--Criminal Penalties

Labor Law--Arbitration Agreements--Specific Enforcement in Federal Courts

Military Law--Discharged Personnel--Power to Arrest for Serious Crimes

Military Law--Privilege Against Self Incrimination--Admissibility of Handwriting Specimen Obtained Involuntarily

Torts--Automobile Guest--Contributory Negligence as a Matter of Law

Workmen's Compensation--Employees' Altercations--Aggresso

The Court Of Military Appeals -- Its History, Organization And Operation, Daniel Walker, C. George Niebank

Vanderbilt Law Review

When a civilian "supreme court" for the review of court-martial convictions was first proposed in Congress, it evoked immediate, vociferous and emotional reactions from those most directly concerned with military criminal law. Vigorous opposition came from the traditional militarist, who argued that there was no place for civilians in a military procedure, and that creation of such a court would place unnecessary emphasis on civilian influence. It was said that military effectiveness would be unduly restricted and that the nonmilitary mind would not be able to appreciate fully the military problems often involved in court-martial cases. Some of these officers …

The Boards Of Review Of The Armed Services, Roger M. Currier, Irvin M. Kent

Vanderbilt Law Review

To most attorneys not having been directly associated at some time with the Armed Forces of the United States, the words "boards of review" mean little. Perhaps at the outset it would serve to clarify the matter if each attorney, when thinking of "boards of review," would substitute in his mind the words "courts of appeal" as those words are understood in the federal judicial system. The boards of review can be aptly analogized to our federal courts of appeal because for the bulk of serious cases which arise in the Armed Forces, review by a board of review is …

Ucmj--Does It Work? Evaluation At The Field Level, 18 Months Experience, Chester Ward

Vanderbilt Law Review

Combat area experience of Naval units applying UCMJ in the Korean theatre is now available for appraisal. To foreshadow effects of the new code upon administration of Naval Justice under conditions of another world war, the Commander-in-Chief, U.S. Pacific Fleet, directed an on-the-spot survey of the impact of the Code upon all types of naval vessels in the Japan-Korea area. Included were nearly 100 ships, consisting of 9 large combat types, 38 destroyers or destroyer-escorts, 2 submarines, 22 transport and amphibious type and 12 mine-sweepers. The reactions to UCMJ produced through this CINCPACFLT survey are predominantly and primarily those of …

"Military Due Process": What Is It?, Seymour W. Wurfel

Vanderbilt Law Review

On November 27, 1951, the United States Court of Military Appeals, then some five months old, fashioned in the Clay case' what is characterized as a label. It embellished this label with quotation marks at least twice in the course of the opinion. This label, which was, in the language of the Court, used "for lack of a more descriptive phrase,"was "military due process." This, and later use of the term by the Court in other opinions, has caused some students of military law to speculate as to whether there is occurring the emergence of a new doctrine of law. …

A Comparative Study Of Military Justice Reforms In Britain And America, Robert S. Pasley Jr.

Vanderbilt Law Review

The Articles of War and the Rules for the Government of the United States Navy which were adopted by the Continental Congress in 1775 were patterned after the corresponding military and naval codes in effect at the time in Great Britain.' Since their initial adoption, they have each been amended on several occasions, and have finally been brought together into a single set of articles known as the Uniform Code of Military Justice, enacted in 1950. Similarly, the British statutes and procedures relating to military justice have been revised from time to time, most recently as a result of the …

A Survey Of The Literature Of Military Law -- A Selective Bibliography, William C. Mott, John E. Hartnett Jr., Kenneth B. Morton

Vanderbilt Law Review

In this article the authors attempt to set out, within the space allotted to them, a consideration of the significant writings in the field of American military law --as they understand the term. Apparently, no similar attempt to construct such a bibliography has heretofore been made. To begin with, a definition of terms is important. Military law, in a broad sense, may be said to include martial law, military government, the law of war, and military justice. For purposes of this article, military law is the exercise of military jurisdiction "by a government in the execution of that branch of …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Constitutional Law--Constitutionality of Group Libel Statute

Federal Employers Liability Act--Liability for Employment of Man with Violent Tendencies

Federal Jurisdiction--Diversity Jurisdiction and the Multi-State Corporation

Federal Jurisdiction--Erie Railroad Doctrine Extended to State-Created Rights Arising under Special Federal Question Jurisdiction

Labor Law--Picketing--Injunction against Breach of Bargaining Agreement

Landlord and Tenant--Exculpatory Agreement--Effect on Right of Subrogation of Landlord's Insurer

Military Law--Failure to Instruct as Prejudicial Error

Military Law--Infiltration of Command Influence as General Prejudice

Trusts--Distribution of Stock Dividends between Life Tenant and Remainderman

The Background Of The Uniform Code Of Military Justice, Edmund M. Morgan

Vanderbilt Law Review

The Articles of War and the Articles for the Government of the Navy have always constituted the code of criminal law and criminal procedure for the Armed Forces. In contrast to the law governing civilians, the punishments imposable are not specified in the Code but are left to be fixed by the military authorities, except that the later codes do not authorize punishment by death save for specifically designated offenses. The system also provides for summary punishment for minor infractions and a series of courts--a general court having power to try all offenses, a special court with limited power to …

Foreword: Comments By The Court, Robert E. Quinn

Vanderbilt Law Review

The United States Court of Military Appeals has been referred to as the "most vital element" in the reformation and unification of military criminal law brought about by the Uniform Code of Military Justice. It represents a further extension of civilian control over the military--a concept long deemed vital to the American framework of democratic government.

The Court is not faced with an easy task, and no one is more aware of this than the judges themselves. Like all institutions established as a result of reform movements, its activities are subject to close public scrutiny. The work of the Court …

Book Reviews, Reginald C. Harmon (Reviewer), A. B. Butts (Reviewer), Rollin M. Perkins (Reviewer), Stanley D. Rose (Reviewer), Charles H. Livengood, Jr. (Reviewer), Keith W. Blinn (Reviewer)

Vanderbilt Law Review

Military Justice under the Uniform Code

By James Snedeker

Boston: Little, Brown and Company, 1953. $15.00.

reviewer: Reginald C. Harmon

===================================

Conscription of Conscience

By Mulford Q. Sibley and Philip E. Jacob

Ithaca: Cornell University Press, 1952. Pp. x, 580. $6.50.

reviewer: A. B. Butts

====================================

Theft, Law and Society

By Jerome Hall

Indianapolis: Bobbs-Merrill Co., Inc. Second Edition, 1952. Pp. xxiv, 398. $10.00.

reviewer: Rollin M. Perkins

======================================

Freedom of the Press in England 1476-1776

By Fredrick S. Siebert

Urbana: University of Illinois Press, 1952. Pp. xiv, 411. $7.50.

reviewer: Stanley D. Rose

=========================================

Wage-Hour Law: Coverage

By Heiman …