The judiciary in recent years has played an increasingly dominant role in the development of the law In contract law, the "will of the parties," once determinative, has become merely one of the factors to be considered by the court.1 Caveat mplor no longer rules the realm of commercial New concepts of "property," of due process of law, and of the proper ambit of constitutional law have developed in recent years.3 Equitable remedies have been creatively applied, and, as judicial willingness to use them to Correct injustice has become commonplace in areas previously eschewed asunmanageable New rules of procedure have expanded the Judge's role in the adversary system and all but mandated a shift in power from bar to bench Perhaps nowhere has the judiciary's power increased more dramatically than in the review of administrative de-Clslons
>Indeed. through the Oadual but steady development of ludmally-created doct h e 8 Such &! qumi contract, u"iuaf ennehmenl, and prornlssary estoppel. thejudges of thls eentuni are said to have preaded we7 the ''f~rtfdic~I~on"of contract law Sea G. Gilmare, The Death of Contract (1874)
'Although much of fhls change was wrought by statute as well a by judicial pronouncement. the result hm been B shift m wwer from seller f~ buyer, with a con.comllanl merease In judicial inv~lvementdevelopmg, mterpretlng, and applying the new doctrines Id.
*E.g., Fvenfes v Shevln. 407 U S. 67 (18721, and I ~ E
progeny, Gnswold V. Connecfl-cut, 381 U.S. 478 (1985). and ,til progeny mcludmg Roe V. Wade, 410 U S 113 (1873) On the conflict between c~nstifutianal ''mferprefivuts" and ''n~mnteipref~wifs
and for B pnnelpled "represenlallan-remforclng ' approach which belongs to neither camp, se J. Ely, Democracy and D~itcubf (19801
'E I, eondder the now-familiar equitable remedies employed m the deiemegatlon and voting righe a_&! fallowing Brown b Board of Educ 347 U S 483 119541. and Baiter" Carr, 388 L S 186(10621. ie~pecrively &! wellassuchunrelated innovations a
Perez Y Boston Haus Aulh , 370 Mass 703. 4W IC E 2d 1231 (18801 (upholdbg appolntment of a receiver to administer the Boaton Housing Authority).
Wg,, cmmrrfhe I983amendmenfstoRules
16 and 26offheFederalRulesof Civil
Procedure with their pcedeeeslor velsmni found m 28 U.S C App -Rules of Cw P (1878 & Supp V 1881)
The purpose of this artrcle, m broad terms, IS to detenne whether a similar movement can be discerned and appraised m the review of discretionary military administrative demaons. It is clear that there exists generally a presumption in favor of the reviewability of ad-ministrative actions.B As Professor Kenneth Culp Davis has aptly demonstrated,' the increasing willingness of the judiciary to intrude upon what once was the excluswe domain of administrators has coincided with the development of the concept of a limited scope of judicial review. By and large. this development, limited review and the concomitant growth in judicial oversight of administrative de-cisionmakmg, has been beneficial "Administrative law," hou,ever. is a broad, If not undefinable subject for which general principles are not easily discerned or applied. That development of a limited scope of review generally has facilitated meaningful and beneficial judicial oversight of administrative decisionmaking is not to say, however, that courts always ought to review administrative decisions
As will be demonstrated, thejudicial groundwork has been iaid far increased oversight of discretionary administrative decisions. a c ~ rordingiy. one can expect to encounter court challenges to discretionary military decisions. Our society has become Increasingly iitigous, and there are indications that courts are more receptive to such challenges in peacetime than during times of crisis It IS appropriate, therefore. for the military practitioner to determine whether the military deserves special treatment or whether the miiitary should be subject to the general trend of judicial willingness to renew discretion More particularly, this article w~ll consider whether the ever-growing presumption of the availability ofjudicial rev~ew of administrative discretion can be reconciled with the historical tradition of nonreiiewability of military discretion and thus provide a principled basis for relieving the military in ap-propriate cases from the burdens of judicial review.
The key question IS this: In what cases. If any, and by what rationale does the fact that the military 1s involved in a particular deci- S L O ~
justify a more limited standard of review, or no review at all? Although the article wiii examine generally the scope of review of
'Abbotf Laboratories V. Gardner, 387 US 136, 140 (l967J ( 'judicial rewew af B
fmal agency aefmn by an aweved person wU not be cut off unless there 13 per sui~ivere-n LO believe that auch w a the P U T P ~ of Conpess 'J'K Davis Admmistrafive Law Treatise 5 28 07 (19581'See, s g , Ornalo Y Hoffman, 546 F 26 10, 16 (2d Ca 18761 lmdicatmg that courts will e m m e mllifar/ C _ ~ J
more closely duma peacetime) See also Warren, TheBu srRghlaondIheMzlz~n.37~
Y U L Rev 181.182-97(1862). tdmnofes173d174 and accompanying text
discretionary military administrative decisions, emphasis wiii be placed an identifying and explaining the circumstances in which the military deserves a more limited standard of review far Its discretionary decisions than is provided for comparable discretionary decisions of other agencies.
DEFINITIONS AND SCOPE
The definition of "discretion" used in this article is the one developed by Rofeswr Davis: "A public officer has discretion whenever the effective limits on his power leave him free to make a choice among possible courses of action or inaction."8 "Discretion" in this sense is exercised daily in countless ways at all levels of the miiifary. Of course, of main concern here are those discretionary decisions that are likely to be the subject of judicial review. Predicting which discretionary decisions ultimately may be challenged in court, however, is becoming increasingly difficult. The following ex-ampies are illustrative of only a small wrtion of the wide variety of discretionary decisions that occur in the rmiitary
Exampla 1: An infantry platoon leader requests two weeks leave so he can accompany his wife to her niece's wedding six months hence. The company commander, mostly because of training pians for that time period, summarily denies the request.lo
Example 2: After being accused of chiid molesting by a seven-year old girl, a soldier makes a statement incriminating himself. A psychiatrist, B chaplain, and the little girl's parents ail agree that it will irreparably hurt the little girl if she IS required to go on the witness Stand and testify. The soldier demands trial by court-martial. The convening authority refuses to convene a court-martial and instead refers the cue to an administrative eiimination board sa that the girl will not have to testify.l'
*K Davla. Werelionary Justice A Prelvnman Inquiry 4 (10681
'OW., K. Dam, %pro note 7, 5 28 16, at 82. Profesar unpUed that courts should not review such action even for ab- of discretion But see Berger. Admtnzslrotiue Arblhon- A Synthaszs, 7s Yale L J 865.886-87 ll068) (apparently favor-yIg review of such mutan dkrefmnj.
"From example even by Mqor General A M Kuhfeld. The Judge Advocate MiliforyP~~.son~~,pul~uanft~S.Res
5S,SBthCong, 1LSess. 1,guotadmMeCurdy v Zuekert, 360 F Zd 481,485 n 6 (6th Cw 18661
Example 3. A soldier is caught in possess~on of several
marijuana cigarettes. The company commander, based both on his estimate of the company's current need for a deterrent effect and on the particular soldier's past history of disciplinary problems, recommends trial by court-mamal despite the fact that a month earlier a similar incident involving another soldier was handled by nonpdicial punishment.l2
Example 4: A promotion board, based on the penonnel files presented toit, decides not to recommendMdjorX far promotion to lieutenant colonel. Because he has been passed over for this promotion once before, unless Major X
1s selectively retained on active duty, he will he discharged.ls
Example 5: The Navy owns land on islands A and B. In the pmt both sites have been used for lix fire tralning for air to ground and naval gunfire support For various reasons the X\la~y ceases using A. so that all live fire training in the area 1s now conducted on B Predictably, there is an In crease in adverse environmental effects on B, as well as greater nuisance effect on neighboring landowners there (presumably with the converse effects on A).'4
Example 6 After being recommended by his company commander. service member C is granted a waiver of oneof the qualifications required by regulation to receive an award. After similar recommendation, Service member D is denied the award although a similar waiver would have enabled him to receive it.LS
Example 7. Faced with a serious and pervasive drug abuse problem in his command, the Commander, United States Amy in Europe (USAREUR), initiates a new drug abuse prevention program. The program involves, inter alia
"On the analogous 1sme of pmseculorral discretion m clvrhan society, cmnpa7e liewman Y Uniied States. 382 F 26 479 (D C Clr 1967) (opmlon by Circuit Judge Burger) with Daua, mpm note 9,at 188-214 As this an& mfendi to demonstrate, there me r e ~ n s why military pmiecutarial dwcretion 1s even less appropriately the subject ofjudicial review than civilian pmsecufonal discretianjs10 L S C 55 632, 637 ll9SZl"C.., Bareelo Y. Brown, 478 F. Supp 646 (D P R 1978). df'd m port, omafed inpanmbnom. Romero Barcelov Brown, 6438 2dS35(iCCa LBBI), ra'ilsubnom wemberger v Romero-Barcela. 456 E.S 305 (1982).
"Hypothetical from Suter, JudtcloLRamofMLiiIoN AdmmWmttbeL%eamm 6Houi L Rer 55 SO 81 (1968)
warrantless unit inspections for drugs without probable cause and...