A Sesquicentennial Historic Analysis of Dynes v. Hoover and the Supreme Court’s Bow to Military Necessity: From its Relationship to Dred Scott v. Sanford to its Contemporary Influence

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University of Memphis Law Review, Vol: 39, Page: 595-662

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Kastenberg, Joshua E.
article description
This Article is a legal history of a case cited by the Court thirty-six times in determining issues ranging from military jurisdiction over war crimes to the shaping of how the military punitively governs its own members. That is, this Article analyzes the ideologies of the proponents of Dynes, and what those proponents hoped to achieve, as well as how the case has evolved to influence military law to the present day. Part I provides a synopsis of the pre-Civil War development of military law, as well as the factual background and ultimate decision in Dynes. Part II analyzes the principal proponents' ideologies involved in the case and how these establish a direct link between Dred Scott and Dynes. Part III illustrates how Dynes was utilized in the century and a half after its publication. Dynes enabled the military to craft its internal legal development without overarching external influence, at least until 1919, if not the adoption of the Uniform Code of Military Justice ("UCMJ") in 1950. As a result, the military law has been able to maintain aspects of criminal law, such as non-enumerated common law crimes, no longer permissible under federal or state criminal law. Part II also analyzes the continuing use of Dynes, albeit as a hidden artifact, in the present time, as well as the likelihood it will not be overtly reversed in the foreseeable future.