The Law the Court Missed

While we have mentioned situations where important provisions have been dropped into miscellaneous statutes, the NYT, Volokh and the ZDNet blog is reporting a quite extraordinary case where the litigants and the US Supreme Court appear to have completely overlooked a relevant statutory provision1, for a couple of reasons:

it got dropped into an elephantine budget measure for military appropriations
the major legal databases apparently scant the relevance of military law

Both sides and the Judges involved in a recent U.S. Supreme Court judgment missed the applicability of an explicitly on-topic Act of Congress: the military justice provisions in the the National Defense Authorization Act (2006) – apparently because the legal research tool used by all three groups turns a blind eye to military and related law.

One commentator expressly comments on what this means for legal research

The more interesting point is how it changes the way we ought to think about legal authority. It appears the law finding mechanism we use to inform the Court about what the law is laughably inefficient in the era of the Web and the blogosphere. The Court is supposed to be, among other things, the really deep, really well informed body on our federal law, right? Yet they missed something a blogger came up with off the top of his head.


  1. Simon, Thanks for widening the attention this issue.

    As one of my Partners (who happened to be in my office while I was ‘holy cowing’ over your post reminded me, it was not just the judges who missed this statutory provision, but likely the lawyers on both sides, their students and or junior counsel. The facts – number of jurisdictions where child rape is punishable with the death penalty – were likely put before the court in submissions.

    The question was probably posed to the junior researcher (or librarian) as “How many states have the death penalty for child rape?” rather than “How many jurisdictions…?” Regardless, the answer to the question should have included the National Defense Authorization Act for Fiscal Year 2006 information.

    This is, unfortunately, an excellent example for all of our junior researchers, as well as ourselves, to take the greatest care when researching the law.