law of evidence. The same is true of other areas of law as well.58

It is also significant that the drafters of the Military Rules of Evidence declined in a number of instances to select a rule of law in cases where the federal rule was unclear or where there was no prevailing view. 59 The result of this is to call upon the military courts to determine what rule would be generally applied in the trial of criminal cases in the district courts, thus directly involving themselves in the process of doctrinal development. This being so, it would be regrettable if military jurisprudence were to continue to grow in a hothouse environment-influenced, to be sure, by outside stimuli, but scarcely influencing the outside.

III. ACCESS TO LAW: PUBLICATION POLICIES.

Since 1975, decisions of the Court of Military Appeals and the four Courts of Military Review have been published by the West Publishing Co. Prior to that time, they were published by the Lawyers Co-operative Publishing Co. 60 Although the shift to West was accompanied by consider

58. To the extent that states increasingly model their rules of evidence on the Federal Rules, the opportunities for contribution to the development of state evidence doctrines are also enhanced. In the military law field, a number of states have departed from the UNIFORM [State] CODE OF MILITARY JUSTICE § 701, 11 U.L.A. 335, 376 (1961), and apply the rules of evidence used in federal courts-martial when conducting the occasional state National Guard court-martial. See 1 WIGMORE, EVIDENCE § 4d, at 26-27 (W. Reiser Supp. 1981) (collecting state statutes). An exception must therefore be recognized to the general proposition that "such proceedings would be completely apart from the Uniform Code of Military Justice and would have no federal aspects." United States v. Self, 13 M.J. 132, 137 n.9 (C.M.A. 1982).

59. E.g., Mil. R. Evid. Drafters' Analyses of Rule 313(c) (no opinion expressed regarding lawful scope of inventories), Rule 314(e)(4), (f) (noting unresolved issues), Rule 321(b) (2) (noting need for recourse to case law), Rule 607 (noting intent that rule be interpreted in a particular fashion unless the Article III courts interpret the counterpart differently), Rule 608(b)-(c) (noting "[d]eveloping Article III practice"), Rule 702 (degree of acceptance of certain types of expert testimony in Article III courts as a factor to consider), Rule 801(d)(2)(E) (noting split among circuits, urging continuation of current military doctrine until Article III practice is settled), Rule 803(24) (noting unsettled state of the civilian cases, urging use of rule "in the same manner as it is generally applied in the Article III courts"), Rule 804(b)(3) (rule to be applied consonant with practice of Article III courts).

60. There was a brief interregnum during which multilithed materials were produced. West began publication of the slip opinions and Daily Journal of the Court of Military Appeals in March 1977. 1977 ANN. REP. OF C.M.A. AND THE JUDGE ADVOCATES GENERAL 4. The first issuances of the Military Justice Reporter were the advance sheets for 3 M.J. The missing period from the end of the C.M.R. series was covered in 1-2 M.J., which appeared only as bound volumes.

able discussion and review of the options, 61 further attention to the publication policies is in order. A similar reassessment has been taking place in the Article III courts."

The early history of the publication policy is ably summarized by William T. Generous, Jr., from whom we learn that one of the options explored at the beginning of operations under the Code was publication of selected opinions of the Court of Military Appeals in the Federal Reporter. 63 This was rejected by the Court because it "would not satisfy the need to communicate all decisional law to the Armed Forces. . . ."64 The Court also insisted that its own decisions be reported in full separately, in addition to inclusion in the Court-Martial Reports (C.M.R.).65 The result was the system of dual reports in effect through 1975.

Under that system, the United States Court of Military Appeals Reports (C.M.A.) included all of the Court's full opinions as well as such miscellaneous actions as denials of petitions for grant of review. The CourtMartial Reports included all Court of Military Appeals decisions, although they did not report orders denying review of Board of Review or Court of Military Review decisions that were themselves unreported. 66 Decisions of the latter were published at the discretion of the individual armed services. Some of the unpublished cases were published unofficially in the Military Law Reporter.

With the advent of West's Military Justice Reporter, publication of actions of the Court of Military Appeals became all-inclusive. The Daily Journal, previously available only in mimeograph form or in the Court's

61. Much of this discussion took place within the Code Committee established under Article 67(g), 10 U.S.C. § 867(g) (1976). See, e.g., 1977 ANN. REP. OF C.M.A. AND THE JUDGE ADVOCATES GENERAL 1; 1976 id. 2. The Code Committee had a "West publication committee" to handle the administrative aspects of the transition. See Minutes of July 12, 1977 Code Committee Meeting. Initially, contact with West was handled by the Code Committee's Executive Secretary (Court Executive of the Court of Military Appeals). Minutes of April 12, 1977 Code Committee Meeting. At present, the Air Force is responsible for administration of the contractual relationship with West. The Code Committee was also instrumental in the creation of a military justice citator by Shepard's /McGraw-Hill. 1977 ANN. REP. OF C.M.A. AND THE JUDGE ADVOCATES GENERAL 1.

62. Civilian analyses of publication policies have tended to overlook the military courts. One early student note indicated that the Court of Military Appeals had been included in a survey of federal appellate court publication policies, but neglected to elaborate on the court's response. Note, Selective Publication of Case Law, 39 So. CAL. L. REV. 608, 611 n. 12 (1966).

63. W. GENEROUS, supra note 18, at 75.

64. Id.

65. Id. at 76.

66. 1 C.M.R. xi (1952).

Minute Books,67 is now published in full, including such entries as petitions and certificates for review, mandatory review cases and motions filed, petitions and motions granted, summary dispositions, mandates issued, interlocutory orders-and even marriages performed.68 All opinions are published, including memorandum actions and dissents from denials of grants of review or denials of petitions for extraordinary relief.

The matter is otherwise at the Courts of Military Review. Technically, the power to select cases for publication rests with each Judge Advocate General,69 and this has led to some concern that the publication power could be used to influence the Courts of Military Review.70 At present, the Army Court and the Navy-Marine Corps Court apply the American Bar Association standard for publication of opinions, as set forth in the margin.71 The Air Force Court generally publishes signed opinions and generally does not publish short per curiams unless the case involves an unusual

67. Fidell, supra note 7, at 100 n.12.

68. In re Cramer & Armao, 9 M.J. 246 (C.M.A. 1980) (Cook, J., officiating). Disciplinary orders have not been published. The court's only known disbarment, In re DeFina, No. 13,600A (C.M.A. Feb. 17, 1960), a case which engendered prolonged controversy, see DeFina v. Latimer, 79 F.R.D. 5 (E.D.N.Y. 1977), was never reported.

69. D. ADDLESTONE, J. KOSLOSKE, L. MILFORD, K. SNYDER, B. STICHMAN & NAT'L VETERANS LAW CENTER, MILITARY DISCHARGE UPGRADING AND INTRODUCTION TO VETERANS ADMINISTRATION LAW § 4.6.2, at 4/13 n.97 (1982).

70. H. MOYER, JUSTICE AND THE MILITARY 753 (1972). The Courts of Military Review currently enjoy substantial autonomy in this regard. The Judge Advocate General of the Navy has delegated his power to select opinions for publication to the Chief Judge of the Navy-Marine Corps Court. Internal Procedures Manual § 401 (N.C.M.R. 1977). 71. ABA Standards Relating to Appellate Courts § 3.37(b) (1977):

(b) Formal publication. An opinion of an appellate court should be published in the series of printed volumes in which the opinions of the court appear only if, in the judgment of the judges participating in the decision, it is one that:

(1) Establishes a new rule of law, alters or modifies an existing rule, or applies an established rule to a novel fact situation;

(2) Involves a legal issue of continuing public interest;

(3) Criticizes existing law; or

(4) Resolves an apparent conflict of authority.

A concurring or dissenting opinion should be published if its author believes it should be; if such an opinion is published the majority opinion should be published as well.

Paragraph 9-5 of the Internal Operating Procedures of the Army Court contemplates publication of opinions which question as well as criticize existing law, or which constitute "a significant contribution to military law because of its historical or interpretive review of prior jurisprudence." Cf. United States v. Pooler, 13 M.J. 786, 789 (A.C.M.R. 1982) (on motion for reconsideration) (full opinion unnecessary for fact-bound cases decided by intermediate appellate court required to satisfy itself as to findings and appropriateness of sentence). Section 402 of the Internal Procedures Manual of the Navy-Marine Corps Court tracks the ABA Standard.

legal or factual situation. 72 The Coast Guard also has no formal guidance on this subject; it publishes all of its few opinions. Miscellaneous orders are typically not published by any of the Courts of Military Review. Trial court issuances are not published unless they are appended to the appellate decision in a reported case.

Whether this state of affairs should continue depends on how one understands the purposes served by a reporting system for the military. First and foremost, certainly, is the need to advise the consumers of the system of the pronouncements of the higher courts. This should be done at reasonable cost, but the result should also not be overinclusive, since future military requirements may involve field settings 74 where there may be a premium on portability of research materials. Assuming there is no general shift to fiche systems for retrieval of military cases, this means that the inessential should be excluded from military reports. Among the chief candidates for exclusion would be much of the material found in the Daily Journal of the Court of Military Appeals. It has been held that denials of petitions for grant of review have no value as precedent,75 and thus one can argue that these should be excluded from the published reports. Many cases could well be left out of full-text publication, being relegated to the tables used for certain summary dispositions in the Article III courts of appeals.

This is not the place to repeat the debate being waged in the civilian community over the selective publication of appellate decisions. 76 Every reader with access to the Military Justice Reporter will certainly be able to identify at least some Court of Military Appeals cases that do not merit publication. A few remarks, however, may be offered from the standpoint of the special situation of the Court within the military justice system. The

72. See Standard Operating Procedures § 4a(2) (A.F.C.M.R. 1977) ("long form per curiam decision may be used where, although issues are discussed, no extended explanation is intended or no new points of law developed. Ordinarily such decisions are not intended for publication"). Air Force Court author judges are encouraged to give reasons when recommending publication of an opinion. Id. § 4b(g). The Air Force Court does not ordinarily cite unreported Board of Review or Court of Military Review cases as authority. Id. at 20.

73. E.g., Cooke v. Orser, 12 M.J. 335, 346 (C.M.A. 1982) (reproducing trial judge's memorandum).

74. See generally Lasseter & Thwing, supra note 3.

75. United States v. Mahan, 1 M.J. 303, 307 n.9 (1976).

76. See, e.g., Reynolds & Richman, An Evaluation of Limited Publication in the United States Courts of Appeals: The Price of Reform, 48 U.CHI. L. REV. 573 (1981) (hereinafter cited as Price of Reform); Reynolds & Richman, Limited Publication in the Fourth and Sixth Circuits, 1979 DUKE L.J. 807; Reynolds & Richman, The Non-Precedential Precedent-Limited Publication and No-Citation Rules in the United States Courts of Appeals, 78 COLUM. L. REV. 1167 (1978).

first is that the Court is often analogized to the Supreme Court," which does publish all of its opinions and virtually all of its orders. The Court of Military Appeals itself, however, has not rigidly applied the analogy.78 It was probably important in the early days of the Code for the Court to emphasize the resemblance, just as it was important to have a “vanity” reporter of its own, as a matter of heralding the Court's presence on the judicial scene. The need for this is far less apparent today. An all-inclusive publication policy cannot be justified simply because the Supreme Court has one. Miscellaneous actions-important though they be to the litigants—have little claim to the immortality they acquire when we permit them to clutter up the reports of decisions. The same is true of dispositions such as petition denials, summary dispositions or per curiams lacking any significant contribution to the development of military law.

One argument that might be advanced in opposition to a limited publication rule for the Court of Military Appeals is based on the role of the Court's central legal staff.79 According to two leading authors on the subject, the danger that judicial responsibility will be delegated to a presiding judge or the staff "increases with the concentration of staff law clerks in areas of the law where the high volume of cases makes specialization possible-even desirable, given the possibility of economies of scale."80 Among those

77. E.g.,McPhail v. United States, 1 M.J. 457, 462 (C.M.A. 1976); United States v. Armbruster, 11 C.M.A. 596, 598, 29 C.M.R. 412, 414 (1960); Latimer, Military Justice, 45 L. LIBR. J. 148, 158 (1952); Feld, Development of the Review and Survey Powers of the United States Court of Military Appeals, 12 MIL. L. REV. 177, 182 (1961); B. FELD, A MANUAL OF COURTS-MARTIAL PRACTICE AND APPEAL 132, 142 (1957) (C.M.A. functions distinguished from those of Supreme Court; one-judge grants of review analogized to Supreme Court's "rule of four").

78. See, e.g., United States v. Kuskie, 11 M.J. 253, 254-55 (C.M.A. 1981). 79. The functions of the staff are described in F. Gindhart, supra note 4, at 76-77; Reform of the Court of Military Appeals, supra note 21, at A-14; G. Harper, Central Legal Staff (paper presented at the Sixth Annual Homer Ferguson Conference on Appellate Advocacy (1981)). The Court's staff was evidently the model for other central staffs in the federal system. See D. MEADOR, APPELLATE COURTS, STAFF AND PROCESS IN THE CRISIS OF VOLUME 218 (1974), noted in Ubell, Report on Central Staff Attorneys' Offices in the United States Courts of Appeals, 87 F.R.D. 253, 256 n.12 (1980).

80. PRICE OF REFORM, supra note 76, at 625. One study of the Court of Military Appeals reported the contention by critics of the court "that the staff process involves unnecessary layering, produces entrenched views in [sic]the merits of legal issues, and reflects decisions made thirty years ago that no longer accord with the needs of the court or the military justice system." Reform of the Court of Military Appeals, supra note 21, at 28. It is difficult to reconcile this criticism with the more commonly voiced concerns over the instability of military law.