A Military Justice Solution in Search of a Problem: A Response to Vladeck

The Georgetown Law Journal Online, Vol. 104-29

SMU Dedman School of Law Legal Studies Research Paper No. 170

19 Pages Posted: 3 May 2015 Last revised: 8 May 2015

See all articles by Geoffrey S. Corn

Geoffrey S. Corn

South Texas College of Law

Chris Jenks

Southern Methodist University - Dedman School of Law

Date Written: May 1, 2015

Abstract

In “Military Courts and Article III,” law professor Steve Vladeck proposes a wholesale replacement of the foundation upon which court-martial jurisdiction has stood since the inception of the United States. In an effort to provide a unifying theory grounded in international law, Professor Vladeck fails to properly distinguish the jurisdiction established by Congress to regulate the armed forces from the jurisdiction established to punish violations of the laws of war. This conflation yields confusion about military jurisdiction which ripples throughout the theory. Our response, which centers on courts-martial, argues that Professor Vladeck has offered a solution in search of a problem. Moreover, Professor Vladeck’s analysis fails to acknowledge the importance of deference to Congress’s exercise of its war powers, and the resonance of U.S. and English history familiar to the Framers. We write to clarify the categories of military jurisdiction, their basis, and their rationale.

Keywords: military justice, court-martial, military courts, article III, Uniform code of military justice, UCMJ, international law, law of armed conflict, commission, military, tribunal, law of war, occupation

Suggested Citation

Corn, Geoffrey S. and Jenks, Chris, A Military Justice Solution in Search of a Problem: A Response to Vladeck (May 1, 2015). The Georgetown Law Journal Online, Vol. 104-29; SMU Dedman School of Law Legal Studies Research Paper No. 170. Available at SSRN: https://ssrn.com/abstract=2601672

Geoffrey S. Corn

South Texas College of Law ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

Chris Jenks (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

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