(Credit: Koto Amatsukami-stock.adobe.com)
Pivotal Perspective
On Scholarship and Writing for Publication
By Lieutenant Colonel Daniel D. Maurer
Over the last several years, I have been asked by various audiences—basic course students, graduate course students, fellow faculty at The Judge Advocate General’s Legal Center and School (TJAGLCS)—for advice about writing in professional and scholarly journals or for online venues at the intersection of national security and the law. It would seem that I have accrued more experience selling and spending in the public marketplace of ideas than I have spent in any other specific area of my professional life. If the substance of what I have written is part of a professional legacy, then I suppose the fact of publishing in a profession that is typically too busy for it must be too. But—as the Bard said—“I find it dizzying / They’re bringing up my history.”1 This proclivity for writing and appetite for self-inflicted anxiety could be due to a number of reasons: the tyranny of email inbox and the schedule of staff meetings has been less oppressive for me than for others; my supervisors have been more encouraging and less distrustful than I had worried; some of the assignments I’ve had not only welcomed scholarship but encouraged it; my family has tolerated my extracurricular activities; or I’m just a bookish bore with less of a life than others. It is probably a bit of all-of-the-above.
Now in the eleventh hour of a twenty-two-year active-duty career, fast approaching retirement (a transition with no left seat/right seat ride), I have been given the opportunity to share some of my motivations to write and publish and to share lessons-learned in these pages in the hope that it sparks interest, reassures the wary, and inspires the uncertain.
This short essay is meant for two audiences. The first audience members are judge advocates (JAs)—junior or senior, active or Reserve, operational or administrative—who wonder whether they have the time, the aptitude, and the permission (tacit or otherwise) to translate their thoughts into keystrokes for civilian or military publications. The second audience members are the supervisors, mentors, and leaders—military or civilian—of the first audience members. The intent of this essay is simple: to convince both audiences that scholarship and writing for publication can be done (even outside the halls of an academic assignment) and should be done.2 One premise of this argument is that intellectual engagement by JAs in the form of scholarly or persuasive writing other than motions or briefs to a court is practically necessary, professionally legitimate, and personally rewarding. In shorthand, I will refer to this writing as “academic legal scholarship.” The argument begins by discussing common reasons offered for not writing, offers reasons for believing that JAs are institutionally and professionally on solid footing when they do write, and then segues into a framework for considering what to write about. But first, an anecdote and a definition.
A Brief Anecdote
Whether in person or as part of a class, I always end up sharing a few anecdotes to make relatable what may seem at first an unrelatable, dry, time-consuming, low-impact and, ultimately, not-required chore. Who has the time, energy, and chutzpah to devote one’s limited attention to something few will care about, even fewer will read, and has no apparent professional profit anyway? Sometimes, scholarship arises from a matter of professional frustration, and a good faith effort to foil future attempts at being so frustrated.
So, there I was . . . a mid-grade captain in his second year of his first JA assignment: brigade judge advocate, deployed to Iraq, in charge of a very small legal section in the Theater Engineer Brigade headquarters. As many readers will know well, a year deployed is an awfully long stretch, especially when most of your time is spent in battle rhythm meetings, various phases of the Military Decision-Making Process, or advising investigating officers (IOs) as they conduct their due diligence on the latest safety incident at the forward operating base’s (FOB) makeshift motor pool or on missing or damaged night optical devices, or on a suspicious injury that seems unrelated to duty.3 As for the latter, I found myself regularly struggling with how to best advise IOs on one essential finding shared by these types of administrative investigations: the nature of “proximate causation.” After repeated efforts in one particular high-profile line of duty investigation to have the young lieutenant IO adequately conduct a proximate cause analysis as part of his report and findings, I realized it was less of “him problem” and more of a “me problem.”
Without rehashing the scene in all of its Office Space-like4 detail, suffice it to say that three dozen or so versions of the definition of proximate cause in various Department of Defense sources at the time, including case law, do not ease the burden on the legal advisor, let alone on the IO. So, initially in the form of an internal after action report, I set out to define the problem (that is, the various definitions of proximate cause, as applied to military administrative investigations), show how it can lead to an IO’s unreasonable conclusions and unjustified recommendations, and offer some ways for a JA to work their way through the problem on the front end (advising the IO) and the back end (the legal review of the finished report). By the end, I had enough notes and citations and Venn diagrams and hypothetical fact patterns to shape it into the proverbial “how-to-better __” guide for this very publication.5 I had so much material (from this investigation and others) that I was encouraged by the deputy brigade commander to write up an article for the Engineer, the branch’s professional bulletin, addressing prospective IOs directly.6 All this while deployed. Granted, it was in a hard-stand building well within the perimeter of an enormous FOB after the most violent period of conflict in Iraq had subsided, but there is a long tradition of writing in the dull down time even on the front line.
After that, I promptly disengaged from all things proximate cause. No subsequent assignment ever required me to know as much as I did about the wild world of intervening and superseding causes as I did when writing those pieces out of hot-blooded exasperation. But within a few years, out of the blue, I had received emails from chiefs of administrative law at posts I’d never been to, and from officers and noncommissioned officers assigned as IOs at units I’d never heard of, complimenting my work and sharing that they had found the article in The Army Lawyer (TAL) helpful enough to use during real-world investigations. And it made my heart swell three times its size one day (or perhaps it was my ego . . .) to learn that the article was required reading at TJAGLCS for at least one course. Written thirteen years ago, it was my first out-of-law-school publication; the hook was in.
Academic Legal Scholarship
Before we get to why JAs can and should embrace scholarly writing, a definition is in order. “Academic legal scholarship” is a well-researched description, analysis, and conclusion about the theory or principles of the law or specific statutes, judicial opinions, legal actors, or legal institutions and what they purport to do under the color of law, or about policies (real or proposed) implicating legal issues. This scholarship aims to defend, advance, or propose a position with respect to those issues or actors, with a possible effect of impacting the state of expert knowledge in that legal field or influencing policy choices. This scholarship is meant for legal professionals (other practitioners, courts, legislators, public officials), experts, or even the general public.7 It could be about affirmative action and equal protection at the Service academies, the definition of consent in the Uniform Code of Military Justice, the problems of distinction and proportionality in large-scale armed conflicts, the fixable ambiguities in Army regulations, or about nineteenth-century tort law in Kansas.
The definition is deliberately broad, and might even include newspaper or online op-eds. But those occupying this wide tent of academic scholarship encompass a few shared qualities. One who writes academic legal scholarship—of whatever stripe—will be animated by one of several specific purposes or motives:
- To advance the practice of law based on professional experience, research, and knowledge for the improved delivery of counsel to private and public clients.
- To engage with other scholars on legal challenges impacting citizens, courts, legislatures, and both civilian and military executive agents and organizations.
- To develop and propose novel, relevant interpretations of legislation, case law, and executive actions (at the local, state, national, or international level) to meaningfully clarify legal obligations and improve the civilian public’s understanding of legal institutions or the rule of law more generally.8
Behind these motives, other factors certainly drive those of us who write. Some enjoy research and writing (. . . really). Some wish to build a professional reputation and knowledge that transcends their regular changes in duty assignment. Some are driven by intellectual curiosity and the intellectual stimulation that comes from satisfying that curiosity. Some are driven by the feedback that comes from an expanding network of scholars, policymakers, and practitioners who will read their work. Some of us are driven by all the above.
Reasons Not to Write?
Over many years of writing, I have heard my peers and subordinates offer myriad reasons for their own choices to not write academic legal scholarship, regardless of their interest, desire, or aptitude. Stop me if you’ve heard (or said) something similar:
- I would love to write, but I just don’t have time.
- I would love to write and have time to write, but I just don’t know what to write about.
- I would love to write, have time to write, I know what I want to write about, but I just don’t know if it will be taken credibly or seriously by those who read it.
- Even if I have time and a topic, and I believe my argument will be taken seriously, I’m just not sure how my leadership/chain-of-command/the Judge Advocate General’s (JAG) Corps would feel about it, especially if I write about something controversial or counter to current doctrine or policy.
Below, I hope to convince you that: (1) yes, you have time; (2) you have plenty of interesting subjects on which to write; (3) the process of subject-matter-expert (SME) review, peer review, and informal mentorship guarantees at least a presumption that your published work is credible and serious; and (4) writing for publication—even if controversial or against the grain of doctrine—is consistent with national, Army, JAG Corps, and the legal profession’s expectations.
Judge Advocates and Academic Legal Scholarship
From an institutional perspective, there are at least three reasons for JAs to engage in and proactively support scholarly engagement through writing for publication. First, Army JAs’ Rules of Professional Conduct for Lawyers9 (Rules) envision Government lawyers as contributors—not just passive
bystanders—to legal scholarship. As an “officer of the legal system,” a
“public citizen,”10 and in fulfilling their oath as commissioned officers, JAs are encouraged to contribute their intellectual curiosity, practical experience, and considered judgment to the “improvement of the law, the administration of justice, and the quality of service rendered by the legal profession.”11 The Rules remind JAs that “[a]s a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in the reform of the law, and work to strengthen legal education.”12
Second, the JAG Corps’s own cardinal “constants”13 of principled counsel, stewardship, mastery of the law, and servant leadership also justify your engagement in scholarly writing and publication. Cultivating insight into the law and what law could be or ought to be demands a degree of disciplined candor and moral courage to criticize what may be considered “conventional wisdom” or existing official doctrine. This presumes “in-depth knowledge, competence, and skill” in one or more practice areas and is one example of the “lifelong learning and professional development” expected of JAs.14 The analysis produced may, in the near or long-term, be “necessary for our client [the Army] to meet present challenges, preserve legal maneuver space, and set the conditions for future victory.”15 As two other JAs wrote:
Military legal professionals stand at the crossroads of important knowledge and experience in law, the military, and society. There is a great need in the academic community for more practical information and timely analysis of the topics that military lawyers work on.16
Such scholarship is meant to “improve the organization beyond” the tenure of its author.17 It demonstrates a selfless commitment to a project beyond the author’s immediate benefit aimed at the “well-being and growth of those they serve:”18 subordinates, peers, the legal community, the various Armed Services, the national security community, and—ultimately—the public. As a JA, your ability to contribute intellectual capital is respected, valued, and extends beyond your ability to craft specific arguments on behalf of specific clients or writing that pithy, BLUF,19 above-the-line legal “analysis” in a ghost-written email for your boss.
What to Write About?
It is important to note that you are under no professional or customary obligation to write about an issue bedeviling the JAG Corps, one that is military-law-specific, a new Department of Defense (DoD) policy or regulation, or even national security. Generally, interests tend to be correlated with experiences; so, if all you’ve professionally known is military law and practice like me, one adage is sensible to follow: write about what you know about. On the other hand, if you have a deep interest in theories of contractual interpretation, the nuances of the Federal Acquisition Regulation, or the philosophy of H.L.A. Hart, consider this guideline: write about what you care about. Here are four basic questions you might ask yourself if a subject doesn’t immediately come to mind sparking your analytical imagination:
- What legal question or subject interests you?
- What legal issue or status quo bothers you? (like, say, the definition and application of “proximate cause” in administrative investigations)
- What legal rule, standard, doctrine, etc., confuses you? (ditto)
- What legal dogma, doctrine, or practice is undertheorized, underappreciated, or misunderstood? (ditto)
After answering one of the above, the meta question you must ask yourself is: Can I say something novel, interesting, and important about this question, issue, rule, standard, doctrine, dogma, or practice? Admittedly, a “yes” is easier to come by if you’re writing in the general field of national security, if only because your views will likely be informed or influenced—however subtly—by the fact that you’re a practicing national security lawyer in uniform (whether your practice has focused on or skimmed the surface of military justice, ethics, contract and fiscal law, environmental law, military personnel, operational and international law, administrative law, or client services). And if you’re writing for a civilian journal or venue, rest assured that your professional military background—however misunderstood by the general public—makes yours an attractive scholarly voice and perspective.
This implicates a second meta question: Can you be objective in writing about something you know or something you care about? Unlike writing a motion or brief, your intellectual engagement in academic legal writing is only partially a matter of advocating for one position over another. Unless you’re writing a thoughtful op-ed, constrained by a low word limit and editorial interest, your scholarly writing should identify (1) where the specific issue or question you’re addressing lies within a larger field of existing scholarship or case law—that is, the “literature” of the field; (2) various ways in which your question or issue has been addressed previously, if at all; (3) why the matter matters; (4) your own position, fully canvassed along with likely objections and rebuttals to those objections (or acknowledging that the objection might be too strong); (5) how your position would affect or change matters going forward; and (6) what other questions might be implicated or derived from your work on this issue or question. Addressing all six points will help assure your reader of your scholarly objectivity, even if you ultimately argue and advocate for one take over another. The scale, scope, or depth at which you address these six points largely depends on where you wish to publish.
For more details and practical insight about “playing the game” of submissions to law reviews, including the timing of the submission and accompanying documents (e.g., C.V., cover letter), and where to publish, Professor Matthew J. Festa and Lieutenant Colonel Patrick M. Wash’s TAL article from 2020 is a first-rate resource.20
A collection of some of LTC Maurer’s publications. (Image courtesy of author)
A Final Anecdote
If one of your primary inhibitions against writing is the fear that you’re not an “expert,” take heart. Expertise is not simply a function how many years you’ve practiced in a particular niche area, how many peer-reviewed books you’ve written on the subject, or whether major television networks are calling you for interviews to talk about some newsworthy event that tangentially touches on your area of “expertise.” Instead, think of it more broadly as whether you have the qualifications to say something novel, interesting, and important. This depends in large part on the questions you ask yourself that would otherwise motivate you to write (see above) and the audience you seek to inform or influence. After all, several months of frustrating conversations with IOs and a little research was enough to qualify me to write about proximate cause for other JAs in TAL and for future IOs in the Engineer bulletin.
So, start small. Aim for a thoughtful, informative essay of a couple of thousand words (that’s roughly five to six double-spaced pages) triggered by some important relevant contemporaneous challenge you know about. Maybe it is peculiar to your practice area; maybe it is a subject you encounter every day; maybe it is a legal dilemma raised by media reports. This, the core of a good blog (or “blawg”) post, just needs a good lede to hook the reader and show its relevance; and—importantly—it doesn’t need footnotes (only hyperlinks to relevant sources and facts embedded in the body of the text are expected).
Shortly after I began teaching at TJAGLCS, well into the second year of the Russia-Ukraine war, I happened upon a post in Articles of War by Michael Schmitt, a retired Air Force JA, civilian professor, and prolific contributor on issues ranging from cyberlaw to traditional law of armed conflict (he supervised and wrote much of the Tallinn Manual21), and his co-author, then-Major Casey Biggerstaff.22 They described a new cell-phone-accessible software app called ePPO, freely available to the adult Ukrainian public and overtly advertised by the Ukrainian government. The app allows its users, by the point of the cell phone camera, to immediately transmit location and trajectory data about airborne threats (like helicopters and drones flying below radar) to the nearest air defense artillery battery. These units then use that data to target and destroy those threats. This makes the ePPO user, however briefly, into a combatant; they are, as the authors explained, “directly participating in hostilities.”23
This raised a question for me: when a country provides and promotes the use of a weapon or tool to its citizens such that the citizens become targetable under the laws of war when they use it, does the country have a duty under international law to warn the user of this consequence—the ultimate caveat emptor? I had no idea what the answer was. I asked my colleagues; they were split. Half said probably yes, but could not find a reason why that should be the case; the other half said probably no, but also could not find a reason why. So, I emailed two people I considered “experts;” they were both working for the Lieber Institute at West Point, former JAs, and prolific scholars. Neither knew the answer either, but they both encouraged me to write about it. Later that week, I raised it in a graduate course elective I was co-teaching. Spirited debate erupted. Half said yes; half said no.
And so I began to write. It was published as a short Articles of War piece,24 but by writing it, talking about it, and spurring conversation with others about it, this issue (and the underlying “direct participation in hostilities” question) has found its way into arguments I’ve made in much longer law review articles. Those in turn, I used to generate more discussion and debate in class, as well as in short courses, where I hope they have inspired JAs in the field to discuss the nuances of law of armed conflict rules and principles applied to modern technology on today’s battlefields. Sometimes starting small is enough to break into a debate . . . or start one.
Conclusion
This reflection was meant to accomplish just two things: to convince JAs and their supervisors that academic legal scholarship can be done and should be done. Along the way, I surveyed a few motives why, and offered reasons to question any lingering self-doubts, insecurities, or professional trepidation. Though certainly not the first JA work about writing, it comes from the point of view of a person who has published across a wide spectrum of scholarly venues (law reviews, blawgs, books and book chapters, and professional journals) and has been unhindered by any institutional obstacles—rather, one who has profited from the encouragement of his supervisors and mentors over many years. And if I may be so bold as to slightly modify one final quote from the Bard: “So make the friendship bracelets, take the moment and taste it / You’ve got no reason to be afraid / You’re [not] on your own, kid / Yeah you can face this.”25 If there is one take-away, it should be that you—the JA reading this because something inside you said, “I wonder if I can/should do this”—have the support of your leaders, mentors, and the institutional JAG Corps itself. TAL
LTC Maurer is an Associate Professor in the National Security Law Department at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.
Notes
1. Taylor Swift, Lavender Haze, on Midnights (Republic Records 2022).
2. In this sense, consider it a supplement or post-script to Matthew J. Festa & Lieutenant Colonel Patrick M. Walsh, Why Scholarly Publishing Matters for JAs, Army Law., no. 4, 2020, at 38 (2020).
3. For those with direct combat experience as “trigger puller” or leader of them, you know that year goes by much differently.
4. Office Space (Twentieth Century Fox 1999).
5. Captain Daniel D. Maurer, Working with Proximate Cause: An “Elements” Approach, Army Law., Dec. 2011, at 16.
6. Captain Daniel D. Maurer,
Investigations—Part I: Why Official Inquiries Are Needed,
Engineer: Pro. Bull. of Army Eng’rs, Sept.-Dec. 2010, at 47; Captain Daniel D. Maurer,
Investigations—Part II: Why Official Inquiries Are Needed,
Engineer: Pro. Bull. of Army Eng’rs, Jan.-Apr. 2011, at 34.
7.
Eugene Volokh, Academic Legal Writing: Law Review Articles, Student
Notes, Seminar Papers, and Getting on Law Review
9 (2007) (academic scholarship is a “claim that is novel, nonobvious,
useful, sound, and seen by the reader to be novel, nonobvious, useful
and sound”);
Sandra L. Shannon, A Guide to Academic and Scholarly Writing
2 (2011) (scholarly writing as “produced to inform a specialized
audience of other scholars in particular field . . . crafted by one
professional for other professionals . . . [and its purpose is] the
advancement of knowledge within a specific field . . . to add to the
body of knowledge, extending, challenging, or expanding what is known or
believed within the field”).
8. Festa & Walsh, supra note 2.
9. U.S. Dep’t of Army, Reg. 27-26, Rules of Professional Conduct for
Lawyers (28 June 2018).
10. Id. para. 6(a).
11. Id. para. 6(f).
12. Id.
13. The Judge Advoc. Gen.’s Corps, U.S. Army, Four Constants
(n.d.) [hereinafter
Four Constants], https://www.jagcnet.army.mil/Sites/JAGC.nsf/46DCA0CA1EE75266852586C5004A681F/$File/US%20Army%20JAG%20Corps%20Four%20Constants%20Smart%20Card.pdf; Colonel Sean T. McGarry, Can Principled Counsel be Taught?, Army Law., no. 4, 2021, at 2.
14. Four Constants, supra note 13, at 2 (describing the “Mastery of the Law” constant).
15. Id.
16. Festa & Walsh, supra note 2, at 38.
17. Four Constants, supra note 13, at 2 (describing the “Stewardship” constant).
18. Id. (describing the “Servant Leadership” constant).
19. “Bottom line up front”
20. See Festa & Walsh, supra note 2, at 40-43.
21. Michael Schmitt, Tallinn Manual 2.0 on the International Law
Applicable to Cyber Operations (Michael N. Schmitt ed., 2017).
22. Michael N. Schmitt & William Casey Biggerstaff,
Ukraine Symposium - Are Civilians Reporting with Cell Phones Directly
Participating in Hostilities?, Articles of War (Nov. 22, 2022), https://lieber.westpoint.edu/civilians-reporting-cell-phones-direct-participation-hostilities.
23. Id.
24. Dan Maurer, A State’s Legal Duty to Warn Its Own Civilians of the Consequences of
Direct Participation in Hostilities, Articles of War (Feb. 21, 2023), https://lieber.westpoint.edu/states-legal-duty-warn-civilians-consequences-direct-participation-hostilities.
25. Okay, this isn’t Shakespeare either. Taylor Swift, You’re on Your Own, Kid, on Midnights (Republic Records 2022).