(concurring in part and dissenting in part):
I disagree with the prospective “judicial rulemaking” of the majority. The measure of justice in a particular ease is not dependent on the number of cases where similar claims have been raised. The majority’s sudden reversal of its decisions in United States v. Jones, 44 MJ 242, 244 (1996), and United States v. Leal, 44 MJ 235, 237 (1996), on judicial-policy grounds condones the inherently prejudicial conduct those decisions were designed to discourage.
In addition, I am disturbed by the majority’s judicial rulemaking (the clone of “judicial legislation”). The law of America is strong because it is based on the steady progress of the common law. The stability of our “ease-by-case” system which interprets and builds law for the armed services is upset when judges become “concerned with the large number of cases coming before us” (46 MJ at 323) in a particular area and determine a prospective rule for all future cases in that area. Allowing the law to develop on a case-by-case progression is better than a lightning bolt of judicial activism.