Reassessing the Ahistorical Judicial Use of William Winthrop and Frederick Bernays Wiener

Journal of National Security Law and Policy, Forthcoming

UNM School of Law Research Paper No. 2021-21

13 Pages Posted: 6 Dec 2021

See all articles by Joshua Kastenberg

Joshua Kastenberg

University of New Mexico - School of Law

Date Written: December 1, 2021

Abstract

William Winthrop (1831-1899) and Frederick Bernays Wiener (1906-1996) can be classified as two of the most utilized military law sources. Federal and state appellate courts have cited to Winthrop and Wiener on questions of military law including the executive branch’s power to court-martial retired service-members and the jurisdictional authority of Article III courts to review courts-martial convictions. In spite of Winthrop’s and Wiener’s subject-matter prominence, one can search in vain to ascertain whether the nation’s judges have actually articulated any historic context for their scholarly work, or questioned their motivations in producing their influential works.

In 1955 Homer Carey Hockett a once-prominent historian, noted that 'negative criticism' is an important tool which requires a proponent of a source to discover every possible reason for doubting the source’s statement. The judiciary has long since abandoned even employing a scintilla of this tool to Winthrop of Wiener. This paper will cast doubt in the aim the nation's judges will cautiously approach their citation to these two military law sources.

This is a working draft based from my presentation delivered at the symposium: Thirty Years of Military Justice (October 28th, 2021).

Suggested Citation

Kastenberg, Joshua, Reassessing the Ahistorical Judicial Use of William Winthrop and Frederick Bernays Wiener (December 1, 2021). Journal of National Security Law and Policy, Forthcoming, UNM School of Law Research Paper No. 2021-21, Available at SSRN: https://ssrn.com/abstract=3975088 or http://dx.doi.org/10.2139/ssrn.3975088

Joshua Kastenberg (Contact Author)

University of New Mexico - School of Law ( email )

1117 Stanford, N.E.
Albuquerque, NM 87131
United States

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