Author Archives: Michael Froomkin

The Dean of the Massachusetts School of Law, Lawrence Velvel, is a Dean with opinions. That alone is not unusual. He expresses them — that's a bit rarer, as Deans sometimes mute their views so as to avoid offending alumni. But this Dean has a no-holds-barred blog, Velvel on National Affairs. Try out Re: Fooling and Signing Up Reservists and National Guardsmen For Iraq for a taste:

A blog posted here on Monday, December 6th mentioned the widely known fact that some soldiers are claiming that the Executive’s action in forcing them to continue serving in Iraq is unlawful because their contractual terms of enlistment have expired. It was said here that the soldiers will lose in court, because the gutless judiciary will not rule against the Executive during a war. It took the courts less than 48 hours to prove that this rather elementary prediction was correct. On Wednesday, December 8th, Washington, D.C. Federal Judge Royce Lamberth denied a so-called preliminary injunction against sending one of the soldiers back to Iraq. According to a newspaper report, and putting the matter in lay terms rather than in legal gobbledygook, Lamberth said there is no way the plaintiff could prevail. Lamberth, for whom there was some hope a number of years ago, has in recent years shown himself to be just another judicial shill for the Executive, and has now done so again.

Incidentally, I think this comment is unfair to Judge Lamberth, who actually has an independent streak, and would be seen as one of the top judges in the US but for his temper which gets the better of him once in a while. But it gets better:

In this country people sign up for the Reserves or the National Guard because they need extra money to feed their families or for school — it usually ain’t the rich who sign up for this, baby. They are told their service will involve only a small commitment like some weekends and two weeks in the summer, and are told that their commitment runs for only certain periods of time, e.g., for only one year under the so-called Try One program. When joining up, they sign contracts that say things like “I have enlisted for a period of one year, 0 months and 0 days.” Afterwards, having been told by recruiters that their service will be only minimally invasive (to use a medical term and make a bad pun too) and will last only a fixed period, they suddenly find themselves in Iraq, in danger of being killed, and ordered to remain in that situation far beyond what they thought was the fixed end of their term of service. When this happens, most do not raise legal objections because conformity is the military and human norm. Those who do make objections are met with a barrage of legal arguments purporting to show that they knew of and agreed to the possibility of extended service in a killing zone. (Fittingly, barrage is a military term.)

The barrage comes down to this, in plain English. When they signed up, the soldiers (cum victims?) signed a contract. Like lots of government documents — and much on the order of the completely unreadable Internal Revenue Code — the contract contains legal phraseology meaning that the terms of enlistment can be altered if certain events occur on or in connection with this or that section of the federal statutes — so that one has to read the cross referenced federal statutes to find out what the true situation is. The recruit thinks he is signing up for a fixed term, he signs a paper saying this, but in reality he or she may possibly be signing up for something very different — for a couple of years in Iraq, for example.

Maybe this whole process wouldn’t be so obnoxious if recruits had Philadelphia lawyers with them to explain all this to them. But people who can afford Philadelphia lawyers don’t sign up for the volunteer service, and people who sign up for it can’t afford and wouldn’t dream of using any lawyer in connection with this, let alone Philadelphia ones.

And there's more…