Volume 102

Overcoming Overcorrection: Towards Holistic Military Sexual Assault Reform

This Note brings a different perspective by analyzing the issue of military sexual assault from the often-ignored perspective of defendants, arguing that the military justice system, which once failed victims, is now failing the accused. Besides defense attorneys arguing on behalf of their clients, few have taken this position, and those who have discussed these issues have not provided a sustained discussion of potential reforms. Viewing this emotional issue from the perspective of a defendant is not intended to undermine, doubt, or discount victims or the larger problem of sexual assault in both the military and our broader society. Rather, the goal of this Note is to add a new perspective in the hope of spurring more durable, lasting, and balanced reforms. This Note synthesizes problems within the military justice system that, when considered in isolation, may seem insignificant compared to the broader problem of sexual assault. However, when considered in concert, the picture is clear: The military justice system remains deeply broken, but it is not beyond repair. As such, this Note then presents a series of reforms that would ensure a fairer, more stable military justice system for both victims and defendants.

This Note will proceed in four parts. Part I will serve as an overview of the military justice system. A familiarity with the unique features of the military justice system and the court-martial process is vital to understanding these issues. Part I will also analyze some of the procedural changes that have been made in response to the sexual assault epidemic. Part II will summarize the doctrine of unlawful command influence (“UCI”) and examine how it applies to sexual assault in the military. Part III will look more closely at the content of SAPR trainings, which all service members and civilian employees attend on a regular basis, and consider the potential unintended consequences of this training on the military justice system. Finally, Part IV will evaluate the reform proposals put forth by Senator Gillibrand and Senator McCaskill and offer an alternative model that would facilitate a system of justice that is fair to both victims and the accused by placing the disposition of traditional crimes in the hands of independent prosecutors while leaving military-specific crimes in the hands of commanders.

Corporations, Unions, and the Illusion of Symmetry

Prominent corporate and labor law scholars claim that corporations and unions should be treated symmetrically when it comes to spending money on ideological activities. Citizens United v. FEC recognized this symmetry in one respect, by holding that both corporations and unions can spend unlimited amounts of money on politics. But Citizens United ignored the fact that dissenting employees have a right to avoid paying for union spending with which they disagree, while dissenting shareholders have no such right. Sensing that the Supreme Court might expand union dissenters’ rights in Friedrichs v. California Teachers Ass’n, these scholars intensified their calls for legal reform to bring the disparate treatment of corporations and unions into line.

This Article argues against the idea of moving towards greater union-corporate symmetry. The strength of arguments for symmetry depends on accurately identifying the principle underlying dissenters’ rights. On this score, existing accounts propose several candidates—from the idea that it is illegitimate to use power in the economic sphere to achieve goals in the political sphere, to the view that dissenters should not suffer misattribution of ideological beliefs, to claims about the corruption that comes from using other people’s money for political speech. But none of these principles hold up to scrutiny.

In their place, this Article argues—on both doctrinal and normative grounds—that dissenters’ rights are best seen as grounded in concerns for individual freedom of conscience. It then shows how the freedom-of-conscience principle undermines the case for union-corporate symmetry. The structure of modern corporations—and in particular the nature of modern capital markets—severs the link between shareholders’ wallets and their consciences. And when compared to the direct connection between dissenting employees and unions, threats to shareholder conscience are remote. Recognizing this fundamental difference between corporations and unions provides reason to be skeptical of various arguments for legal reform based on appeals to symmetry and clears the way for more persuasive claims to take their place.

The Amicus Machine

The Supreme Court receives a record number of amicus curiae briefs and cites to them with increasing regularity. Amicus briefs have also become influential in determining which cases the Court will hear. It thus becomes important to ask: Where do these briefs come from? The traditional tale describes amicus briefs as the product of interest-group lobbying. But that story is incomplete and outdated. Today, skilled and specialized advocates of the Supreme Court Bar strategize about what issues the Court should hear and from whom they should hear them. They then “wrangle” the necessary amici and “whisper” to coordinate the message. The result is orchestrated and intentional—the product of what we call “the amicus machine.”

This Article has two goals: The first is to offer a new description of the origin of many Supreme Court amicus briefs, explaining how it is that the Justices and the advocates benefit from this choreographed amicus process. Second, we make the perhaps surprising claim that the amicus machine is normatively desirable. Others have warned about the influence of the powerful lawyers of the Supreme Court Bar generally. While acknowledging these risks, we argue that—when it comes to amicus briefs—the benefits of specialization outweigh the costs.

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