First, thanks to Dan and Al for having me here for a while.
Let’s start off with the obvious question of what is “veterans law,” anyway? You will be forgiven if you have no idea how to describe it off the top of your head. Veterans law is not featured at most law schools for the simple reason that veterans benefits claims were immune to judicial review for the first 200 years of our history. Since the Court of Appeals for Veterans Claims started operations in 1989, there have not been that many practitioners, nor much time for them to migrate to the academy.If you were looking on the categories listed to the left side here, you might place veterans law into “Stuff You Cannot Categorize.” Michael Allen likes to refer to it as a platypus, and that analogy has a lot of power. You can look at veterans law as a strange collection of parts that each evolved in isolation to solve familiar problems. Somehow it manages to persist and function even though the sum can appear bizarre. On closer inspection, though, it is not so strange. In practice, it is a mixture of administrative law, torts, and evidence, with strong undercurrents of civil procedure and due process. Whether its unique approaches to these areas can be justified as better serving veterans is something that independent legal thinkers could be tremendously helpful in determining.
This is why veterans law is an interesting and important challenge for the legal academy. It is a legal system that is not functioning well, even though there are no ideological differences to frustrate the execution of the mission. On the surface, it is composed of countless “veteran friendly” rules and procedures, yet the total is far less than the sum of its parts. Despite the best of intentions, it suffers from severe system effects.
Accordingly, it is a system that is in desperate need of experts in the underlying areas to examine how the system handles evidence, causation, pleading, discovery, separation of powers, and many other issues. Jon Stewart nicely expressed the point I have been making for years: The veterans benefits system is crucial to anyone who supports a substantial role for the administrative state, because if you cannot make this system work with all the political support and funding it has, then how can you expect anyone to believe that government can solve actual controversial problems?
While I am here for the next four weeks, I want to explore how the system works and what might be learned from related areas of law. Before I dive into the current issues, I will provide some background, including a couple of days on the tumultuous historical path leading to today’s system, and then an outline of how the system presently works. Finally, I will spend the majority of my time highlighting important aspects of the system and what issues could use more study by those with an outside perspective.
So this is it in a nutshell: Veterans law is the litmus test of whether the modern administrative state is the solution or the problem. Even if we did not owe our most sincere efforts to the men and women who have given so much in service, that challenge would be reason enough for anyone with an interest in legal theory to consider what can be done to make the system not just functional, but exceptional.
Note: These writings are made in my personal capacity, and are not to be construed as attributable to the Department of Veterans Affairs, the Court of Appeals for Veterans Claims, or other entities.