Ban on Women in Combat Lifted: Is the Military Ready?

This week, Defense Secretary Leon Panetta announced that the military’s ban on women in combat will be lifted.  According to the Department of Defense, 14.6% of the nation’s military is made up of women; according to The N.Y. Times and Huffington Post, more than 280,000 of them were deployed during the Iraq and Afghanistan wars.  While those women were banned from combat, they often saw combat action nonetheless, as they were attached to battalions in positions that sometimes came under fire.  Of the more than 6,600 troops killed in Iraq and Afghanistan, 152 of them have been women. 

There may still be some combat positions that women will not be allowed to fill; however, the presumption seems to be that all combat positions are open to women unless a particular branch of the military requests an exception and presumably has the burden to prove why women should not be so allowed.  Previous opposition to women in combat often revolved around concerns about women’s strength and whether their presence might hurt unit cohesion.  Clearly, not all women will be physically capable of certain assignments. But then again, neither are all men.  At least now, those women who are capable and who want to fill those assignments will have the opportunity to do so.  The argument about unit cohesion is also one that had long been made against allowing gays—and African Americans before them—to serve in the military.  That argument, too, has been debunked, and since 2012, LBGT soldiers can serve openly.    

Allowing women in combat opens up hundreds of thousands of new jobs for women and allows women the opportunity to climb the ranks in the military.  Without combat leadership experience, military advancement, regardless of the soldier’s gender, is limited.  In the past, this limitation disproportionately stifled women’s military careers.  No longer. As The New York Times reported, General Martin E. Dempsey, the chairman of the Joint Chiefs of Staff, stated in a letter that the lifting of the ban ensures “that women as well as men ‘are given the opportunity to succeed.’”

Despite the public support for allowing women in combat, there are those who oppose the idea, with one retired army general calling it “a vast social experiment in which hundreds of thousands of men and women will be the guinea pigs.” The decision, he maintains, is ideologically based and not militarily based.

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Lessons From Sixteen Years of the PLRA and AEDPA

I have some reflections on the great 1996 prisoner litigation reforms in an essay newly uploaded to SSRN.  Here is the abstract:

In 1996, Congress adopted two sweeping statutes that were intended to restrict the ability of prisoners to obtain redress in federal court for violations of their constitutional rights. This essay introduces an issue of the Federal Sentencing Reporter assessing the legacy of these two laws, the Antiterrorism and Effective Death Penalty and Prison Litigation Reform Acts, and considers the extent to which these statutes highlight structural flaws in the way that the political and legal systems engage with prisoner litigation.

The essay, entitled “Not So Sweet: Questions Raised by Sixteen Years of the PLRA and AEDPA,” was published at 24 Fed. Sent. Rep. 223 (2012).

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This Day in Legal History—Alabama Statehood and a New Era of Slavery Compromises

On December 14, 1819, Alabama was admitted to the Union as the twenty-second state. The admission itself was not especially remarkable. Various parts of present-day Alabama had been settled by the French (and later the British) since the early 1700s, and explored by the Spanish as early as the 1540s. The territory to the west, moreover, had already been admitted as the states of Mississippi (1817) and Louisiana (1814). Not least important, Alabama’s soil and climate were amenable to cotton production, which was accelerating due to technological innovation and increased demand, such that the years preceding Alabama’s statehood had seen substantial growth in the region’s population.

What made Alabama’s admission significant, politically and constitutionally, was the situation it then posed for Congress regarding the admission of subsequent states, particularly west of the Mississippi River. Specifically, the nation was now evenly divided between free and slave states, having eleven of each. Given a federal Senate based on equal voting for every state regardless of population, this resulting parity of free and slave states made the admission of any additional state an opportunity either to expand or to restrict slavery. The South especially perceived the need to maintain parity as its influence in the House of Representatives declined relative to the North, which was experiencing (and would continue to experience) more immigration as well as greater industrial and economic growth.

This dynamic, in turn, set the stage for a new era of anti- and pro-slavery compromises and eventually—as these compromises less and less alleviated sectional tensions—a rather bloody civil war.

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