International law scholarship remains locked in a raging debate about the extent to which states do or do not comply with international legal norms. For years, this debate lacked empirical data altogether. International law advocates tended to assume that most nations obey most laws most of the time and proceeded to measure state activity against international norms through conventional legal analysis. In contrast, international relations realists and rational choice theorists have argued that international law is simply an epiphenomenon of other state interests with little independent power at all. Meanwhile, constructivist and transnational legal process approaches have posited that international law seeps into state behavior through psychological and sociological mechanisms of norm internalization and strategic action. But even these studies tend to remain on a theoretical level, without on-the-ground data about which factors might influence compliance in actual day-to-day settings.
1 Over a decade ago, Harold Hongju Koh wrote that compliance “remains among the most perplexing questions in international relations” and noted that the question is “fundamental from both a theoretical and practical perspective. It challenges scholars of international law and international relations alike. It vexes all subfields in international affairs, from international security to political economy; from international business transactions to international trade; from European Union law to international organizations.” Harold, Hongju Koh, Why Do Nations Obey International Law? 106 Yale L.J. 2599, 2599–600 (1997). If anything, debates about compliance have intensified since then. For example, after the publication of Jack, L. Goldsmith & Eric, Posner’s The Limits of Intemational Law in 2005 , which used a rational choice approach in an effort to show that international law has no independent force, no fewer than seventeen review essays were written in response.
2 See Benedict, Kingsbury, The Concept of Compliance as a Function of Competing Conceptions of Intemational Law, 19 Mich. J. Int’l L. 345, 346 (1998) (“[T]he first empirical task is to determine whether, as is often asserted by international lawyers, most States and other subjects of international law conform to most legal rules most of the time. We have impressions which may rise to the level of ‘anecdata,’ but in many areas we simply do not have systematic studies to show whether or not most States conform to most international law rules most of the time (citation omitted)).
3 See, e.g., Louis, Henkin, How Nations Behave 47 (2d ed. 1979) (“[A]lmost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.”).
4 See Abram, Chayes & Antonia, Handler Chayes, The New Sovereignty: Compliance With International Regulatory Agreements 3 (1995) (“[F]oreign policy practitioners operate on the assumption of a general propensity of states to comply with international obligations.”).
5 See, e.g., Michael, Byers, Custom, Power and The Power of Rules: International Relations and Customary International Law 8 (1999) (“International relations scholars have traditionally. . . regarded international law as something of an epiphenomenon, with rules of international law being dependent on power, subject to short–term alteration by power–applying States, and therefore of little relevance to how States actually behave.”).
6 See, e.g., Martha, Flnnemore, National Interests In International Society 3 (1996) (asserting that states’ interests “are shaped by internationally shared norms and values that structure and give meaning to international political life”); Harold, Hongju Koh, Transnational Legal Process, 75 Neb. L. Rev. 181, 204 (1996) (“As transnational actors interact, they create patterns of behavior and generate norms of external conduct which they in turn internalize.”).
7 See, e.g., Julian, Ku & Jide, Nzelibe, Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities? 84 Wash. U. L. Rev. 777 (2006); Oona, A. Hathaway, Do Human Rights Treaties Make a Difference? 111 Yale L.J. 1935 (2002).
8 See, e.g., Laura, A. Dickinson, Empirical Approaches to International Law (2006). One recent notable exception is Michael, P. Scharf, International Law in Crisis: A Qualitative Empirical Contribution to the Compliance Debate, 31 Cardozo L. Rev. 45 (2009). In this article Scharf interviews the ten living former legal advisers of the U.S. Department of State to discuss the influence of international law on the formulation of foreign policy during times of crisis. Thus, Scharf’s approach, like mine here, seeks on–the–ground empirical data to create a more nuanced understanding of how international law actually operates in shaping decisions and affecting policy.
9 See, e.g., The New Institutionalism In Organizational Analysis (Walter, W. Powell & Paul, J. Di–Maggioeds., 1991) [hereinafter New Institutionalism]; Organizational Environments: Ritual and Rationality ( John, W. Meyer & Richard Scott, W. eds., updated ed. 1992) [hereinafter Organizational Environments]; Organization Theory: From Chester Barnard To The Present and Beyond (Oliver, E. Williamson ed., 1990) [hereinafter Organization Theory]; James, G. March, Decisions and Organizations (1988); James, G. March & Herbert, A. Simon, Organizations (2ded. 1958); Richard Scott, W., Organizations (5th ed. 2003); Herbert, A. Simon, Administrative Behavior (2d ed. 1957); Serge, Taylor, Making Bureaucracies Think: T H E Environmental Impact Statement Strategy of Administrative Reform (1984); Edward, L. Rubin, Images of Organizations and Consequences of Regulation, 6 Theoretical Inquiries L. 347 (2005).
10 Scharf, supra note 8, at 97.
11 See, e.g., Clifford, Geertz, Thick Description: Toward an Interpretive Theory of Culture, in The Interpretation of Cultures: Selected Essays 3, 5–6 (1973).
12 See sources cited supra note 9.
13 See, e.g., Rubin, supra note 9. In law, organization theory is most associated with scholars who study the role of professionalization and professional organizations in the activity of lawyers. See, e.g., Richard, L. Abel, American Lawyers (2000); Ethics in Practice: Lawyers’ Roles, Responsibilities, and Regulation (Deborah, L. Rhode ed., 2000).
14 See, for example, for economists’ approaches, Douglass, C. North, Institutions, Institutional Change, and Economic Performance (1990); Oliver, E. Williamson, The Mechanisms of Governance (1996). See, for example, for a sociologist’s approach, John, W. Meyer, Conclusion: Institutionalization and the Rationality of Formal Organizational Structure, in Organizational Environments, supra note 9, at 261 . See, for example, for a political scientist’s approach, Terry, M. Moe, The Politics of Structural Choice: Towarda Theory of Public Bureaucracy, in Organization Theory, supra note 9, at 116 . See, for example, for an anthropologist’s approach, Mary, Douglas, Converging on Autonomy: Anthropology and Institutional Economics, in id. at 98 .
15 See, for example, on corporations, Oliver, Hart, An Economist’s Perspective on the Theory of the Firm, in Organization Theory, supra note 9, at 154 ; Edward, B. Rock & Michael, L. Wachter, Islands of Conscious Power: Law, Norms, and the Self–Governing Corporation, 149 U. Pa. L. Rev. 1619 (2001). See, for example, on private associations, ABEL, supra note 13. See, for example, on public bureaucracies, Meyer, supra note 14.
16 Rubin, supra note 9, at 349–66.
17 Armen, A. Alchian & Harold, Demsetz, Production, Information Costs, and Economic Organization, 62 am. Econ. Rev. 777 (1972); Michael, C. Jensen & William, H. Meckling, Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure, 3 J. Fin. Econ. 305 (1976).
18 March, supra note 9; March & Simon, supra note 9; Scott, supra note 9; Simon, supra note 9.
19 North, supra note 14; Williamson, supra note 14.
20 Richard, Scott W., Symbols and Organizations: From Barnard to the Institutionalists, in Organization Theory, supra note 9, at 38, 39 (quoting Chester, I. Barnard, The Functions of The Executive 6 (1938)).
21 Sally, S. Simpson, Corporate Crime, Law, and Social Control I 16–51 (2002).
22 Rubin, supra note 9, at 373.
23 Taylor, supra note 9.
24 Rubin, supra note 9, at 374.
25 Scott, supra note 20, at 39 (quoting Barnard, supra note 20, at 123).
26 Id. (quoting Barnard at 122).
27 Id. at 43.
28 Douglas, supra note 14, at 98.
29 Id. at 102.
31 New Institutionalism, supra note 9; Organizational Environments, supra note 9.
32 See, e.g., Richard, Tanner Pascale & Anthony, G. Athos, The Art Of Japanese Management: Applications Foramerican Executives (1981); Peter, Tasker, The Japanese: A Major Exploration of Modern Japan (1988); David, G. Litt, Jonathan, R. Macey, Geoffrey, P. Miller, & Edward, L. Rubin, Politics, Bureaucracies, and Financial Markets: Bank Entry into Commercial Paper Underwriting in the United States and Japan, 139 U. Pa. L. Rev. 369 (1990).
33 Meyer, supra note 14; John, W. Meyer & Brian, Rowan, Institutionalized Organizations: Formal Structure as Myth and Ceremony, in New Institutionalism, supra note 9, at 41 .
34 Aaron, Benavot, Yun–Kyung, Cha, David, Kamens, John, W. Meyer, & Suk–Ying, Wong, Knowledge far the Masses: WorldModels and National Curricula, 1920–1986, 56 Am. Soc. Rev. 85 (1991).
35 Id. at 145.
36 Ryan, Goodman & Derek, Jinks, International Law and State Socialization: Conceptual, Empirical, and Normative Challenges, 54 Duke L.J. 983 (2005).
37 Talcott, Parsons, The Social System (1951); Niklas, Luhmann, Social Systems 6 ( John, Bednarz Jr. trans., 1995) (1984). See generally Walter, Buckley, Sociology and Modern Systems Theory (1967); Jay, R. Galbraith, Organization Design (1977); George, J. Klir, An Approach To General Systems Theory (1969); Alfred, Kuhn, The Logic of Social Systems (1974); Toward A Unified Theory of Human Behavior (Roy, R. Grinker ed., 1956) [hereinafter Toward A Unified Theory]; Ludwig, Von Bertalanffy, General System Theory (1968).
38 Gunther, Teubner, Corporate Fiduciary Duties and Their Beneficiaries: A Functional Approach to the Legal Institutionalization of Corporate Responsibility, in Corporate Governance and Directors’ Liabilities 149 ( Klaus, J. Hopt & Gunther, Teubner eds., 1985); Gunther, Teubner, Juridification: Concepts, Aspects, Limits, Solutions, in Juridification of Social Spheres 3 (Gunther, Teubner ed., 1987).
39 Though not stated there in these terms, these factors are drawn generally from Taylor, supra note 9, and Rubin, supra note 9.
40 See, e.g., Simpson, supra note 21.
41 See Elizabeth, Chambliss, MDPs: Toward an Institutional Strategy for Entity Regulation, 4 Legal Ethics 45, 56–64 (2001) (criticizing the American Bar Association’s command–and–control approach to entity regulation and calling for more institutional support for in–house compliance specialists); Elizabeth, Chambliss & David, B. Wilkins, A New Framework for Law Firm Discipline, 16 Geo. J. Legal Ethics 335, 336 (2003) (proposing that law firms be encouraged to invest in in–house compliance specialists); see also Ian, Ayres & John, Braithwaite, Responsive Regulation: Transcending The Deregulation Debate 125 (1992) (“An independent internal compliance group is essential to the success of an enforced self–regulation scheme.”).
42 See Elizabeth, Chambliss & David, B. Wilkins, The Emerging Role of Ethics Advisors, General Counsel, and Other Compliance Specialists at Large Law Firms, 44 Ariz. L. Rev. 559, 586–89 (2002).
44 See Taylor, supra note 9, at 252.
45 See, e.g., Chambliss & Wilkins, supra note 42, at 588–89.
46 U.S. War Dep’t, Instructions for the Government of Armies of the United States in the Field, General Orders No. 100 (Apr. 24,1863), reprinted in The Laws of Armed Conflicts 3 ( Dietrich, Schindler & Jiří, Toman eds., 3d rev. ed. 1988), available at http://www.civilwarhome.com/liebercode.htm.
47 Id., para. 16.
48 See Theodor, Meron, Francis Lieber’s Code and Principles of Humanity, in Politics, Values, And Functions: International Law In The 21st Century 249 ( Jonathan, I. Charney, Donald, K. Anton, & Mary, Ellen O’Connelleds., 1997); see also Thomas, G. Barnes, Introduction: Francis Lieber and the Law of War, in Lieber’s Code and The Law of War 3 (Richard, Shelly Hartigan ed., 1995); Theodor, Meron, The Humanization of Humanitarian Law, 94 AJIL 239 (2000).
49 See generally Samuel, P. Huntington, The Soldier And The State (1957).
50 See Patrick, Finnegan, The Study of Law as a Foundation of Leadership and Command: The History of Law Instruction at the United States Military Academy at West Point, 181 Mil. L. Rev. 112 (2004).
52 1 U.S. Dep’t of The Army, Report of The Department of The Army Review of The Preliminary Investigations Into The My Lai Incident (1970), available at http://www.loc.gov/rr/frd/Military_Law/pdf7RDAR–Vol–I.pdf.
53 James, F. Gebhardt, The Road to Abu Ghraib: U.S. Army Detainee Doctrine and Experience, Mil. Rev., Jan.– Feb. 2005, at 44, 50 (quoting U.S. Army Field Manual, 1976 ed.).
54 Frederic, L. Borch, Judge Advocates In Combat: Army Lawyers in Military Operations From Vietnam to Haiti 30 (2001).
55 Id. at 37; U.S. Dep’t of Defense, DoD Law of War Program, Dir. 5100.77 (Nov. 5, 1974), canceled by id, Dir. 5100.77 (Dec. 9, 1998), available at http://www.au.af.mil/au/awc/awcgate/dod/d510077p.txt (reissuing 1974 directive “to update policy and responsibilities in the Department of Defense,” see para. 1.1 (a)).
56 Borch, supra note 54, at 31.
57 Interviewwith Jag Officer No. l4 (Oct. 18,2007). I interviewed twenty judge advocates, most of whom had served in either Iraq or Afghanistan, or in both, during the previous five years. I received permission from the Army JAG school in Virginia, and many of the interviews were conducted at the school in April 2007. Most of the interviewees had been in the JAG Corps for approximately eight years and were at the school for their second round of training. Several additional judge advocates were identified for interview through the so–called snowball method: they were mentioned by one or more of the initial interviewees. A few had served in other conflicts, including the first Persian Gulf war and the conflict in the Balkans in the 1990s.
59 Interview with JAG Officer No. 16 (Oct. 18,2007).
60 Interview with JAG Officer No. 14, supra note 57.
61 Borch, supra note 54, at 81.
63 Interview with JAG Officer No. 12 (Oct. 18, 2007).
65 International and Operational Law Department, Judge Advocate General’s Legal Center & School, U.S. Army, Operational Law Handbook (2007), available at http://fas.org/irp/doddir/army/law2007.pdf.
66 Borch, supra note 54, at 240.
69 Interview with JAG Officer No. 20 (Oct. 16, 2007).
70 W. Hays Parks, Remarks, in panel discussion regarding military contractors, sponsored by the University of Virginia School of Law and the Judge Advocate General’s School (Oct. 15, 2007). For information regarding the panel, see Law Regarding Civilian Combatants, Contractors Murky, Say Experts (Nov. 20, 2007), at http://www.law.virginia.edu/html/news/2007_fall/civiliancombat.htm.
71 David, Luban, Lawfare and Legal Ethics in Guantánamo, 60 Stan. L. Rev. 1981, 2000 (2008).
72 Tim, Golden, After Terror, a Secret Rewriting of Military Law, N.Y. Times, Oct. 24, 2004, § 1, at 1 .
73 William, Glaberson, Tribunal v. Court–Martial: Matter of Perception, N.Y. Times, Dec. 2, 2001 , §1B, a t6 (citing Edward, Sherman, former army lawyer and former dean of Tulane Law School); see also Golden, supra note 72.
74 Glaberson, supra note 73 (citing John, S. Cooke, A retired army judge who was chair of the American Bar Association Section on Armed Forces Law).
75 Neil, A. Lewis, A Nation Challenged: The Military Tribunals; Rules on Tribunal Require Unanimity on Death Penalty, N.Y. Times, Dec. 28, 2001 , at A1.
76 Neil, A. Lewis, Lawyer Says Detainees Face Unfair System, N.Y. Times, Jan. 22, 2004, at A25; Jonathan, Mahler, Commander Swift Objects, N.Y. Times, June 13, 2004 , §6 (Magazine), at 42.
77 Mark, Mazzetti & Neil, A. Lewis, Military Lawyers Caught in Middle on Tribunals, N.Y. Times, Sept. 16, 2006 , at A1.
79 On the memoranda, see, for example, Sean, D. Murphy, Contemporary Practice of the United States, 98 AJIL 820–31 (2004).
80 Neil, A. Lewis, Military’s Opposition to Harsh Interrogation Is Outlined, N.Y. Times, July 28, 2005, at A21.
81 Id. (quoting Brig. Gen. Kevin, M. Sandkuhler, memorandum (Feb. 27, 2003)).
82 Id. (quoting Maj. Gen. Thomas, J. Romig, memorandum (Mar. 3, 2003)).
83 Id. (quoting Maj. Gen. Jack L. Rives).
85 V. Adm. Albert, T. Church III, Review Of Department Of Defense Detention Operations and Detainee Interrogation Techniques [Church Report], Executive Summary at 8 (Mar. 11, 2005), available at http://www.dod.gov/pubs/foi/detainees/church_report_1.pdf.
86 Jeannie, Shawl, New US Army Interrogation Manual Mandates Geneva Rules, Jurist, Sept. 6, 2006 . Congress, however, subsequently exempted CIA operatives from the requirements of the Field Manual, except when operating under Defense Department control or within a Defense Department facility. See Detainee Treatment Act of 2005, §1002(a), 10 U.S.C. §801 note (2006).
87 For an argument about the role that military culture can play in deterring war crimes, see generally Mark, J. Osiel, Obeying Orders: Atrocity, Military Discipline, and the Law of War (1999).
88 Interview with JAG Officer No. 7 (Oct. 16, 2007).
90 Interview with JAG Officer No. 1 (Oct. 16, 2007).
91 Interview with JAG Officer No. 4 (Oct. 16, 2007).
92 Interview with JAG Officer No. 7, supra note 88.
93 See iCasualties.org, Operation Iraqi Freedom (2009), available at http://icasualties.org/Iraq/Index.aspx.
94 Interview with JAG Officer No. 7, supra note 88.
96 Interview with JAG Officer No. 8 (Oct. 16, 2007).
99 Interview with JAG Officer No. 7, supra note 88.
101 Interview with JAG Officer No. 8, supra note 96.
102 Interview with JAG Officer No. 7, supra note 88.
104 Interview with JAG Officer No. 8, supra note 96.
105 Interview with JAG Officer No. 2 (Oct. 16, 2007).
106 Interview with JAG Officer No. 7, supra note 88.
107 Interview with JAG Officer No. 8, supra note 96.
109 Interview with JAG Officer No. 6 (Oct. 16, 2007).
110 Interview with JAG Officer No. 8, supra note 96.
112 Interview with JAG Officer No. 5 (Oct. 16, 2007).
114 Interview with JAG Officer No. 2, supra note 105.
119 Interview with JAG Officer No. 5, supra note 112.
120 Interview with JAG Officer No. 8, supra note 96.
124 Interview with JAG Officer No. 5, supra note 112.
125 Interview with JAG Officer No. 2, supra note 105.
126 Interview with JAG Officer No. 18 (Feb. 12, 2007).
127 Interview with JAG Officer No. 6, supra note 109.
131 Interview with JAG Officer No. 8, supra note 96.
134 Interview with JAG Officer No. 2, supra note 105.
135 Interview with JAG Officer No. 3 (Oct. 16, 2007).
138 Interview with JAG Officer No. 6, supra note 109.
139 Interview with JAG Officer No. 2, supra note 105.
141 Interview with JAG Officer No. 6, supra note 109.
143 Interview with JAG Officer No. 3, supra note 135.
144 Interview with JAG Officer No. 2, supra note 105.
145 Interview with JAG Officer No. 5, supra note 112.
147 Interview with JAG Officer No. 2, supra note 105.
148 Interview with JAG Officer No. 8, supra note 96.
149 Interview with JAG Officer No. 4, supra note 91.
150 Interview with JAG Officer No. 5, supra note 112.
153 Interview with JAG Officer No. 4, supra note 91.
154 Interview with JAG Officer No. 8, supra note 96.
156 Interview with JAG Officer No. 6, supra note 109.
158 Interview with JAG Officer No. 12 (Oct. 16, 2007).
160 Interview with JAG Officer No. 5, supra note 112.
163 Interview with JAG Officer No. 6, supra note 109.
164 Interview with JAG Officer No. 7 (Oct. 17, 2007).
166 See, e.g., Interview with JAG Officer No. 6, supra note 109.
167 Interview with JAG Officer No. 2, supra note 105.
169 Interview with JAG Officer No. 7, supra note 164.
170 Interview with JAG Officer No. 5, supra note 112.
174 Interview with JAG Officer No. 7, supra note 164.
176 Interview with JAG Officer No. 1, supra note 90.
178 Interview with JAG Officer No. 7, supra note 164.
179 The Uniform Code of Military Justice, 10 U.S.C. §§801–946 (2006), provides that soldiers may be punished for many such acts. See, e.g., 10 U.S.C. §889 (disrespect toward superior commissioned officer); 10 U.S.C. §892 (failure to obey order or regulation); 10 U.S.C. §912 (drunk on duty); 10 U.S.C. §915 (malingering); 10 U.S.C. §933 (conduct unbecoming an officer and a gentleman).
180 See 10 U.S.C. §815 (2006) (U.C.M.J. Art. 15, Commanding Officer’s Non–Judicial Punishment).
181 See 10 U.S.C. §§856a, 858a (2006).
182 Interview with JAG Officer No. 7, supra note 164.
184 Interview with JAG Officer No. 2, supra note 105.
187 Interview with JAG Officer No. 4, supra note 91. For U.C.M.J. Article 15, see note 180 supra.
188 Interview with JAG Officer No. 4, supra note 91.
189 Interview with JAG Officer No. 1, supra note 90.
190 Interview with JAG Officer No. 3, supra note 135.
193 Interview with JAG Officer No. 5, supra note 112.
195 Paul, von Zielbauer, Marines’ Trials in Iraq Killings Are Withering, N.Y. Times, Aug. 30, 2007 , at A1.
196 Interview with JAG Officer No. 5, supra note 112.
197 Interview with JAG Officer No. 2, supra note 105.
198 Interview with JAG Officer No. 5, supra note 112.
201 Interview with JAG Officer No. 2, supra note 105.
202 See supra text at notes 132–37.
203 Human Rights First, Bythe Numbers: Findings of the Detainee Abuse and Accountability Project 7 (2006), available at http://www.humanrightsfirst.info/pdf/06425–etn–by–the–numbers.pdf.
204 Id. at 3.
205 For a discussion of the ways a military culture steeped in rules of law proved resistant to Bush administration initiatives, see Laura, A. Dickinson, Abu Ghraib, in International Law Stories 405 ( John, E. Noyes, Laura, A. Dickinson, & Mark, W. Janis eds., 2007).
206 Jess, Bravin, Two Prosecutors at Guantanamo Quit in Protest, Wall St. J., Aug. 1, 2005 , at Bl.
207 Peter, Finn, Guantanamo Prosecutor Quits, Says Evidence Was Withheld, Wash. Post, Sept. 25, 2008, at A6 (Met 2 ed.).
208 See, e.g., Laura, A. Dickinson, Public Values/Private Contract , in Government By Contract: Outsourcing and American Democracy 335 ( Jody, Freeman & Martha, Minow eds., 2009); Laura, A. Dickinson, Contract as a Tool for Regulating Private Military Companies , in From Mercenaries To Market: The Rise and Regulation of Private Military Companies 217 ( Simon, Chesterman & Chia, Lenhardt eds., 2007); Laura, A. Dickinson, Public Law Values in a Privatized World, 31 Yale J. Int’l L. 383 (2006); Laura, A. Dickinson, Government for Hire: Privatizing Foreign Affairs and the Problem of Accountability Under International Law, 47 WM. & Mary L. Rev. 135 (2005); see also Laura, A. Dickinson, Outsourcing War And Peace: Why Privatizing Foreign Affairs Threatens Core Public Values And How We Can Respond (forthcoming 2010).
209 The potential link between organizational structure and legal compliance, for example, suggests further developing Michael, P. Scharf’s Study of the State Department legal advisers , see Scharf, supra note 8, to see whether aspects of the State Department’s organizational structure or institutional culture play a role in how effective the legal adviser is. Indeed, one might compare the institutional context of the legal adviser’s office at the State Department with that of legal advisers’ offices in other agencies (or in other countries) to see whether aspects of organizational structure influence the efficacy of each office.
Another important, recent qualitative study, which examines the organizational culture of the World Bank and its impact on the World Bank’s human rights agenda, is Galit, A. Sarfaty, Why Culture Matters in International Institutions: The Marginality of Human Rights at the World Bank, 103 AJIL 647 (2009).
* Earlier versions of this paper were presented at a conference held at New York University School of Law, faculty colloquiums at Vanderbilt University School of Law and Duke School of Law, and the Annual Meeting of the Law & Society Association in Montreal. Many thanks to participants at all of those venues for helpful comments. Additional thanks to Richard Abel, Paul Schiff Berman, Robert W. Gordon, Laurence Heifer, Deena Hurwitz, Harold Hongju Koh, Mike Newton, and Austin Sarat. Most important, thanks are owed for the generous assistance of the Judge Advocate General's Legal Center and School, and to the many attorneys who shared their experiences and insights from the battlefield, and without whose cooperation the empirical data on which this article is based could not have been obtained.
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