"A Boy Gets into Trouble": Service Members, Civil Rights, and Veterans' Law Exceptionalism

By Wishnie, Michael J. | Boston University Law Review, October 1, 2017 | Go to article overview

"A Boy Gets into Trouble": Service Members, Civil Rights, and Veterans' Law Exceptionalism


Wishnie, Michael J., Boston University Law Review


INTRODUCTION

There is a paradox at the heart of veterans' law. Former service members receive more generous disability, health care, housing, and other public benefits than those available to indigent or disabled members of the general public.1 At the same time, veterans are subject to anomalous legal principles and practices and isolated from broader developments in administrative and constitutional law. This veterans' law exceptionalism often undermines the civil rights of former service members.

Members of the armed forces enjoy fewer workplace protections than other public and private employees;2 and the theories and doctrines that shape veterans' law;3 the agencies and courts that adjudicate veterans cases;4 and the lawyers, lay advocates, and organizations that commonly represent veterans5 operate largely outside the mainstream of U.S. law and legal institutions. This legal separation has not aided veterans. In recent decades, moreover, veterans' law has rarely received the sustained attention of legal scholars6 or legal services programs,7 nor the scrutiny of attorneys, judges, and bar associations other than those already primarily engaged in this specialized field.8 There is no inherent logic requiring that veterans' law stand apart from other bodies of law with which it analytically coheres, such as administrative, disability, public benefits, and employment law.9 Nor is it apparent that segregating veterans' law cases in specialized courts, or serving low-income veterans largely outside the existing network of legal services offices, furthers the interests of veterans. Like other areas of law that are treated as exceptional,10 veterans' law is a backwater that generally lags behind developments in constitutional due process, administrative law, and civil rights law.

Veterans' law is not exceptional because it involves few cases. There are nearly twenty-two million veterans in the United States,11 and they and their dependents file more than one million benefits claims with the U.S. Department of Veterans Affairs (the "VA") each year,12 in one of the three great federal mass adjudication systems.13 In addition, veterans file tens of thousands of record correction applications annually.14

The paradox, then, is this: official recognition that veterans deserve special treatment has long resulted in more generous benefits than those provided to the general public, but also a legal isolation that, over time, has undermined the interests of former service members.15 Indeed, at several moments in the past century, when serious proposals to integrate veterans' programs with other government programs were raised, powerful voices have objected that to do so would endanger the special treatment afforded to veterans and risk degrading their valor and sacrifice. There is no inherent reason, however, that generous benefits require the exclusion of veterans' law and practice from modern legal principles and procedures in related areas of law.

Exceptionalism in other areas of the law, such as tax and immigration, is subject to criticism by many scholars and advocates.16 This article explores the overlooked costs of veterans' law exceptionalism.17 It considers how exceptionalism operates in four areas at the center of contemporary veterans' law debates, each with significant civil rights consequences: (1) the structure of judicial review in VA benefits cases; (2) adjudication of disability claims arising from sexual harassment and assault; (3) the availability of class actions to address the VA claims backlog and other systemic issues; and (4) procedural and qualitative shortcomings at the record correction boards, especially regarding applications by veterans with less-than-honorable discharges, many of whom carry mental health injuries and suffer a lifetime of stigma, employment barriers, and benefits ineligibility. Examination of these matters reveals important deficiencies in the current systems of adjudication. …

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