As noted, the post focused on two areas where law reviewers typically fail. A third area is scope. The Smith-Mundt Act has a very explicit and defined scope. This scope is sometimes inferred, at best, by law review authors, but more commonly it is ignored by reviewers, which is yet another issue that confounds me when considering these articles went through a peer review process. The inference to the scope is often in the recitation of arguments, such as the 1967 discussion between Fulbright and Stanton or the 1972 discussion about Buckley's use of a USIA movie, but that's typically the extent of it. Authors may mention something outside this scope, like Armstrong Williams and No Child Left Behind, as Carter and Palmer did, but never, to my knowledge, do such references clearly delineate the Williams case was completely outside of the Smith-Mundt discussion. Here, authors generally ignore, or are unfamiliar with, the no publicity riders typical in many appropriations and even authorizations and other restrictions.
The authors generally (I'm hedging again as I do think "always" fits here) fail to discuss why the specific scope spelled out in the text somehow extends beyond the agencies and agency functions mentioned or deduced through statutory authorities but throughout Title 22 activities or even beyond Title 22. DOD's high-level legal review of Smith-Mundt's applicability was based on the argument that since DOD was doing stuff similar to State's public diplomacy functions covered by Title 22 Smith-Mundt, the specific Title 22 restrictions intentionally and willfully applied to USIA in 1972 and 1985 must also apply to DOD in the 21st Century until Congress directs otherwise. This magical (and absurd) reasoning was a direct cause of the Modernization Act of 2012, an amendment to the Smith-Mundt Act that had the primary interest of telling DOD that no, in fact, this piece of Title 22 does not apply to your Title 10 or other activities.
This is just the start of a discussion on the lack of scope by law review authors as there is much more to this. But, for now, I'll leave it at that.
As noted, the post focused on two areas where law reviewers typically fail. A third area is scope. The Smith-Mundt Act has a very explicit and defined scope. This scope is sometimes inferred, at best, by law review authors, but more commonly it is ignored by reviewers, which is yet another issue that confounds me when considering these articles went through a peer review process. The inference to the scope is often in the recitation of arguments, such as the 1967 discussion between Fulbright and Stanton or the 1972 discussion about Buckley's use of a USIA movie, but that's typically the extent of it. Authors may mention something outside this scope, like Armstrong Williams and No Child Left Behind, as Carter and Palmer did, but never, to my knowledge, do such references clearly delineate the Williams case was completely outside of the Smith-Mundt discussion. Here, authors generally ignore, or are unfamiliar with, the no publicity riders typical in many appropriations and even authorizations and other restrictions.
The authors generally (I'm hedging again as I do think "always" fits here) fail to discuss why the specific scope spelled out in the text somehow extends beyond the agencies and agency functions mentioned or deduced through statutory authorities but throughout Title 22 activities or even beyond Title 22. DOD's high-level legal review of Smith-Mundt's applicability was based on the argument that since DOD was doing stuff similar to State's public diplomacy functions covered by Title 22 Smith-Mundt, the specific Title 22 restrictions intentionally and willfully applied to USIA in 1972 and 1985 must also apply to DOD in the 21st Century until Congress directs otherwise. This magical (and absurd) reasoning was a direct cause of the Modernization Act of 2012, an amendment to the Smith-Mundt Act that had the primary interest of telling DOD that no, in fact, this piece of Title 22 does not apply to your Title 10 or other activities.
This is just the start of a discussion on the lack of scope by law review authors as there is much more to this. But, for now, I'll leave it at that.