Analysis and Commentary on Military Law
Rejecting Vaccination Status Discrimination: Learning from the Laws of War

Illinois Law professor Lesley M. Wexler argues that a just society should not punish unvaccinated persons in the allocation of even scarce medical care and resources, despite the exceptional circumstances of a global pandemic. In support of this position, Professor Wexler analogizes to the exceptional circumstances of war, pointing out that the laws of war also emphatically reject status discrimination in medical decision-making.

“A Tragic Mistake”: Understanding the Aftermath of the Kabul Drone Strike: Part II—Condolence and Solatia Payments

In this second of a three-part series of columns on the Kabul drone strike in August that killed numerous civilians, Illinois Law professor Lesley M. Wexler addresses the U.S. approach to voluntary condolence and solatia payments. Professor Wexler explains what these payments require and how they often fall short, and she points out the gulf between commitments to making condolence and solatia payments and payments actually made.

“A Tragic Mistake”: Understanding the Aftermath of the Kabul Drone Strike: Part I—Detecting Mistakes and No Required Reparations

In this first of a three-part series of columns on the Kabul drone strike in August that killed numerous civilians, Illinois Law professor Lesley M. Wexler raises two key concerns: that civil society rather than the government brought the mistake to light, and that there is no legal requirement to pay reparations. Professor Wexler describes the reasons behind our reliance on journalists and civil society to investigate problems like this strike and explains the relevant laws of war that allow the victims’ families to go uncompensated.

United States v. Briggs: The Court Reaches a Wrong but Just Result

Cornell Law professor Sherry F. Colb comments on a decision by the U.S. Supreme Court this term holding that the Uniform Code of Military Justice (UCMJ) contains no statute of limitations for rape. Professor Colb argues that the Court stretched the language of the statute to reach a “desirable” decision, demonstrating that judges at all levels can interpret a statute to reach the result they want to reach.

Military #MeToo, Part II: In Bad Company— Canada’s Armed Forces #MeToo Crisis

In this second of a series of columns on military sexual harassment and sexual assault, Illinois Law professor Lesley M. Wexler compares and contrasts the U.S. military’s efforts to address the problem with how the Canadian military is addressing the same issue. Professor Wexler notes that Canada’s government has adopted several tools to address sexual harassment and misconduct that the United States has not yet accepted, and while the two militaries are not identically situated, we should pay close attention their efforts and see whether lessons may be learned.

Military #MeToo Justice: Is a Change Going to Come?

Illinois Law professor Lesley M. Wexler comments on a recent announcement by the Army Forces Command that fformal sexual harassment complaints would be moved out of the direct chain of command, instead going to an investigating officer outside the accused’s brigade. Professor Wexler explains that, while this might read as a small procedural change, it is actually a meaningful step for an institution long committed to a commander-centric justice model.

Shinzo Abe’s Biggest Failure Is His Greatest Legacy: Preservation of Japan’s Anti-Military Constitutional Provision

In response to the news that Japan’s Prime Minister Shinzo Abe resigned due to health reasons, Cornell law professor Michael C. Dorf comments on Abe’s efforts to amend Article 9 of Japan’s Constitution, which was imposed on the country by Supreme Allied Commander Douglas MacArthur after World War II. Dorf describes one bad reason and two good reasons that have been offered for a change in Article 9, but he argues that the case for retaining Article 9 is stronger.

Did a Federal District Judge Defy the Supreme Court in Invalidating Male-Only Draft?

Cornell law professor Michael C. Dorf comments on a recent decision by a federal district court judge in Texas declaring unconstitutional the US’s male-only military draft. Dorf points out that the judge’s decision defies the Supreme Court’s admonition that federal court judges should follow even outdated Supreme Court precedents, “leaving to th[at] Court the prerogative of overruling its own decisions” and considers whether there is any other reason that admonition should not apply.

President Trump’s Emergency Wall Declaration: A Guide to the Legal Issues

NYU law professor Samuel Estreicher and JD candidate David Moosmann comment on some of the legal issues presented by President Trump’s declaration of a national emergency to secure funds for a border wall along the southern US border. Estreicher and Moosmann argue that there is a need for legislation tightening up the standards for presidential declarations of a national emergency, and for Congress to review and consolidate the seemingly vast array of statutes that authorize emergency measures on a presidential declaration.

Burn Pits are the New Agent Orange: The Limited Circle of Concern for Pollution Victims of War

Illinois Law professor Lesley Wexler explains why the open air burn pits as used in recent conflicts such as Iraq and Afghanistan are being called the “new Agent Orange.” Wexler describes the challenges combatants, their children, contractors, and civilians have had in obtaining care for long-term injuries as a result of the use of Agent Orange during the Vietnam War and expresses concern that the same may occur for burn pits.

The Meaning of Trump’s Plan to Keep Gitmo Open

Cornell University Michael C. Dorf explains the symbolism of President Donald Trump's announcement during his State of the Union address that he would be keeping the detention facility at Guantánamo Bay open. Dorf points out that despite the extraordinarily high cost of keeping the facility open, Republicans support its continued operation simply as repudiation of President Obama, who wanted to close it. Dorf points out that Republicans' opposition to closing Gitmo during the Obama presidency also jibed with the not-so-veiled racism of many Republicans who questioned Obama's citizenship and commitment to the US (disregarding the fact that President Bush actually released more Gitmo detainees than President Obama did).

Cluster Munitions: Policy Reversal and International Law Norms

Illinois Law professor Lesley M. Wexler comments on the Trump administration’s reversal of longstanding policy on cluster munitions. Wexler describes both what changes and what remains the same under the new policy and considers whether, taken in the context of other similar shifts in policy, the Trump administration is implementing its “America-First” approach and discarding prior policies that upheld international law norms.

Reason in the Time of Trump’s Transgender Tweet: The Military Benefits of Fortifying Pro-Dignity and Anti-Discrimination Norms

Illinois Law professor Lesley Wexler explains why the U.S. military would benefit from strengthening its pro-dignity and anti-discrimination norms, rather than implementing divisive discriminatory policies such as President Trump’s recent tweet regarding transgender service members. Wexler points to concrete ways inclusivity fortifies the military and calls upon leadership to embrace inclusive policies.

Why Leaker Chelsea Manning Should Receive Appropriate Medical Care in Prison

Justia columnist and attorney David Kemp discusses the request by government leaker Chelsea Manning, formerly Bradley Manning, that she receive hormone treatment while in military prison. Kemp discusses several decisions by federal courts, all of which have held that prisons are constitutionally required to provide transgender inmates with necessary medical care. He argues that as a matter of public policy and constitutional law, the military prison holding Manning should also provide her needed medical care.

Legal Limits on the Forced Feeding of Hunger-Striking Guantanamo Bay Detainees

Justia columnist and Cornell law professor Michael Dorf comments on the law applicable to the forced feeding, via tubes, of those Guantanamo detainees who refuse to eat, as they are on a hunger strike, and are becoming dangerously weak. Human rights groups condemn the forced feeding as cruel, but the government says that it is better than the detainee’s dying. With U.S. law unclear on the force-feeding issue as it related to detainees, Dorf analyzes the situation, citing two relevant Supreme Court precedents and other legal sources that might shed light on the issue. He also suggests that the detainees’ best hope, in this situation, might be to invoke international law, though their chances of prevailing will still be slim.

Battle of the Sexes: The Department of Defense Lifts the Restriction on Women in Combat

Justia columnist and Hofstra law professor Joanna Grossman comments on DoD’s recent decision to remove the ban on women in combat. After providing a brief history of women in the military, Grossman characterizes the ban as having been a stubborn form of sex discrimination, and notes that the ban had been honored in the breach, as military women were increasingly participating in combat roles that put them in harm's way, as a number of their deaths have sadly proven. Thus, Grossman calls on the military to recognize the reality that women already occupied what are in effect combat roles, even before the DoD restrictions were lifted, and to ensure military women’s equality by addressing the high level of sexual abuse in the military.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Fels Institute of Government Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more