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Parameters Spring 2024, Usawc Press

The US Army War College Quarterly: Parameters

No abstract provided.

From The Editor In Chief, Antulio J. Echevarria Ii

The US Army War College Quarterly: Parameters

Welcome to the Spring 2024 issue of Parameters. Readers will note a few differences in the formatting for this issue: we are now using endnotes instead of footnotes to facilitate switching from pdf to html via Adobe's Liquid App; also, readers will be able to click on each endnote number to view the full endnote and then switch back to the text to resume reading. Please drop us a note to let us know how you like the changes. More are coming!

Strategy As Problem-Solving, Andrew Carr

The US Army War College Quarterly: Parameters

This article proposes a new definition of strategy as problem-solving that challenges the focus on goals and assumptions of order within many post–Cold War approaches to strategy. It argues that the military needs strategy to diagnose the complex problems of the twenty-first century before they can be solved. Inspired by practitioners such as Andrew Marshall and George F. Kennan, this new definition clarifies what strategists do and offers a logic for distinguishing the use of the term strategy. Practitioners will also find problem-solving tools and pedagogies they can adopt today.

Designing Law To Enable Adaptive Governance Of Modern Wicked Problems, Barbara A. Cosens, J.B. Ruhl, Niko Soininen, Lance Gunderson

Vanderbilt Law Review

In the twenty-first century, our planet is facing a period of rapid and fundamental change resulting from human domination so extensive it is expected to be visible in the geologic record. The accelerating rate of change compounds the global social-ecological challenges already deemed “wicked” due to conflicting goals and scientific uncertainty. Understanding how connected natural and human systems respond to change is essential to understanding the governance required to navigate these modern wicked problems. This Article views change through the lens of complexity and resilience theories to inform the challenges of governance in a world dominated by such massive and …

Wicked Problems, Foolish Decisions: Promoting Sustainability Through Urban Governance In A Complex World Symposium: Governing Wicked Problems, Scott D. Campbell, Moira Zellner

Vanderbilt Law Review

Why do wicked problems often give birth to bad policy choices? Put another way, why do people—in the face of complex social challenges—make misdiagnoses, ineffective decisions, or no decisions at all? Typical answers point to a plethora of suspects: impatience, myopia, political stalemate, narrow-mindedness, fear and risk aversion, hubris, greed, rational self-interest, ignorance, reliance on emotionally appealing but misleading anecdotal stories, misuse of evidence, and misunderstanding of uncertainty.

Amid these divergent explanations, two classes emerge: one lies in the shortcomings and mistakes of the problem solvers, and the other lies in the nature of the problem itself. One stance is …

French Jurisdictional Complexity On The Fringe— Acadia 1667-1710, Jacques Vanderlinden

Journal of Civil Law Studies

During the second half of the 17th century of French formally institutionalized colonial power in Acadia, the province was in an interesting state of jurisdictional complexity insofar as French colonists were concerned. While native Amerindians, mostly Malecites and Micmawqs, carried their precolonial political order and jurisdictional organisation without almost any interference of the colonial power, imported normative systems derived from feudalism, the Catholic Church, French colonial order, French provincial customs and family organisation were juxtaposed and interacted, each of them were a well-known part of the Western legal tradition. Yet—and this is the most interesting—the state power, which was prevalent …

Neither Limited Nor Simplified: A Proposal For Reform Of Illinois Supreme Court Rule 222(B), Michael S. Smith

Michigan Law Review

A limited and simplified discovery system should broaden access to courts, resolve disputes quickly, and expedite relief to injured parties. It should not incentivize procedural gamesmanship or increase the system’s complexity. Regrettably, Illinois’s “limited and simplified” discovery system does both. The initiation procedure for the simplified system, Rule 222(b), creates procedural traps and perverse incentives for both plaintiffs and defendants, and conflicting appellate interpretations of the Rule intensify the problem. This Note examines the flaws underlying the current simplified discovery scheme and argues for reform. It examines simplified discovery schemes in other states to recommend a new system for initiating …

Complexity's Shadow: American Indian Property, Sovereignty, And The Future, Jessica A. Shoemaker

Michigan Law Review

This Article offers a new perspective on the challenges of the modern American Indian land tenure system. While some property theorists have renewed focus on isolated aspects of Indian land tenure, including the historic inequities of colonial takings of Indian lands, this Article argues that the complexity of today’s federally imposed reservation property system does much of the same colonizing work that historic Indian land policies—from allotment to removal to termination—did overtly. But now, these inequities are largely overshadowed by the daunting complexity of the whole land tenure structure. This Article introduces a new taxonomy of complexity in American Indian …

Judge Posner's Simple Law, Mitchell N. Berman

Michigan Law Review

The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, for judges to achieve “sensible” resolutions of real-world disputes—by which Judge Posner means “in a way that can be explained in ordinary language and justified as consistent with the expectations of normal people” (p. 354)—they must be able to navigate the world’s complexity successfully. To apply legal rules correctly and (where judicial lawmaking is called for) to formulate legal rules prudently, judges must understand the causal mechanisms and processes that undergird complex systems, and they must be able to draw sound factual …

Reviving Fiscal Citizenship, Ajay K. Mehrotra

Michigan Law Review

April 15 is a day that most Americans dread. That date is, of course, when federal and nearly all state-level individual income tax returns are due. Agonizing over the filing of income tax returns has long been a perennial part of modern American legal culture. Since the mid-1940s, when the United States first adopted a return-based mass income tax, the vast majority of Americans have been legally required to file an annual Form 1040. Over the years, taxpayers have been complaining about, procrastinating over, and generally loathing the filing of their annual tax returns. Indeed, in recent times, April 15 …

Regulation Through Boilerplate: An Apologia, Omri Ben-Shahar

Michigan Law Review

You have to salute Peggy Radin. She has said what others who agree with her have for so long been hesitant to utter out loud: the fine print is not a contract. There is no agreement to it, no real consent, not even “blanket assent.” It is nothing but paperwork and should have the legal fortune of junk mail. Those lengthy, unreadable pages with terms and conditions that come prepacked with consumer products or that demand to be clicked (“We Accept”) on computer screens — does anyone really think that they contain arrangements that people knowingly agreed to? How is …

Rationality's Reach, Adam B. Badawi

Michigan Law Review

Economic analysis and the rational actor model have dominated contracts scholarship for at least a generation. In the past fifteen years or so, however, a group of behaviorists has challenged the ability of the rational choice model to account for consumer behavior. These behaviorists are not trying to dismantle the entire enterprise. They generally accept the fundamentals of economic analysis but argue that the rational actor model can be improved by incorporating evidence of decisionmaking flaws that people exhibit. Oren Bar-Gill has been one of the foremost and influential proponents of a behaviorist take on contracts, and his recent book, …

Law And The Fog Of Healthcare: Complexity And Uncertainty In The Struggle Over Health Policy, Paul Starr

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Reforming The Tax Code: A Tale Of Two Purposes And Paralysis, Gene Magidenko

University of Michigan Journal of Law Reform Caveat

Though the presidential election of 2012 is still some time away, national politics have been in the thick of one for several months now. One of the top issues being debated is the tax code. Most agree that the tax code should be simplified, but to say that the proposals to do this are various is an understatement. This perennial question of reform has been a fixture of the national debate for a long time, so little of what can be said about it is particularly novel. All the same, a brief overview of the purposes behind our system of …

Old Habits Die Hard: Disengaging From The Bluebook, Mark Garibyan

University of Michigan Journal of Law Reform Caveat

Incoming first-year law students dread many aspects of what lies ahead: the cold calls, the challenging course load, and the general stress that is associated with starting a new phase in one’s life. Most students, however, do not expect that the Bluebook—the citation system used ubiquitously throughout the legal landscape—will inflict “more pain” on them “than any other publication in legal history.” This pain might be a shock to many who are accustomed to the simpler systems utilized in other academic fields. A citation itself is, after all, merely a reference; it is “neither scholarship nor analysis.” Preferably, a system …

Corporate Cooperation Through Cost-Sharing, Nicola Faith Sharpe

Michigan Telecommunications & Technology Law Review

Applying a game-theoretic approach based on the classic prisoners' dilemma provides valuable insights into corporate managers' decision-making incentives under existing discovery rules. It demonstrates that the fee structure imposed by current discovery rules leads to inefficiency and motivates corporate litigants on either side of a controversy to employ abusive discovery practices, although each party would benefit from cooperation. Using this framework, this Article shows how a cost-sharing regime can motivate litigants to engage in cooperative discovery and, as a consequence, facilitate more efficient and less abusive discovery practices. To date, scholars, who have posited that cooperative behavior in the discovery …

The Price Of Law: How The Market For Lawyers Distorts The Justice System, Gillian K. Hadfield

Michigan Law Review

Bill Clinton's legal bills in connection with the Lewinsky scandal topped $10 million; the bill for Ken Starr's investigation of the President exceeded $50 million. The cost to the eight families portrayed in the bestseller A Civil Action for their tort suit against a manufacturing company accused of dumping hazardous chemicals into the water supply was $4.8 million (paid from a settlement of about $8 million); the cost for the defense exceeded $7 million. Lawyers who represented the three states in the nationwide suit by state attorneys general against tobacco companies to recoup smoking-related health care costs were awarded $8.2 …

Jury Trial Techniques In Complex Civil Litigation, Ronald S. Longhofer

University of Michigan Journal of Law Reform

Ronald Longhofer, an experienced litigator, discusses the challenges inherent in trying a complex civil case to a jury. He explores aspects of complex litigation that often impede jurors from effectively hearing such cases. In conclusion, he suggests litigation techniques which have proved successful in overcoming such obstacles and effectively translating complex evidence to jurors.

Libertarianism With A Twist, Heidi Li Feldman

Michigan Law Review

A Review of Richard A. Epstein, Simple Rules for a Complex World

Controlling Discretion By Administrative Regulations: The Use, Misuse, And The Nonuse Of Police Rules And Policies In Fourth Amendment Adjudication, Wayne R. Lafave

Michigan Law Review

In assaying fourth amendment jurisprudence, it is useful to take into account available knowledge regarding the actual search and seizure practices of the police. Especially helpful is the perspective afforded by the American Bar Foundation's Survey of the Administration of Criminal Justice in the United States, which ranks as the preeminent empirical study of law enforcement procedures in this country. Despite the fact - or, more likely, because of the fact that the ABF Survey was published over twenty years ago, certain insights from that study highlight some recent and significant changes in this corpus juris inconstans .

Clearly "the …

Administrative Law Of The Seventies, Hudson N. Janisch

Dalhousie Law Journal

Canadian lawyers make far too little use of the rich body of administrative law which has been developed in the United States. To some extent this is because the very sophistication and complexity of that law makes occasional unorganized forays and serendipitous research intimidating and, all too often, frustrating ventures. The purpose of this review is to introduce the Canadian reader to the latest volume of the leading treatise and to a new one volume textbook. Each, in its own way, may serve as an invaluable guide and introduction to American administrative law. Before going any further it would be …

Attorneys-Practice Of Law-Preparation Of Tax Returns By Laymen, Benjamin M. Quigg, Jr. S.Ed.

Michigan Law Review

The members of Lowell Bar Association brought a suit in equity to restrain respondents, who are not members of the bar, from holding themselves out as qualified to practice law, and from giving legal advice in respect to liability to pay income taxes and to enjoin the preparation and execution of income tax returns. The facts showed that respondents had advertised, by newspaper and placards, an income tax-service for individuals, including preparation of tax return and "counsel in handling income tax matters should any develop after the official audit by the U.S. Tax Department." The lower court enjoined respondents from …