We must embrace and invest in innovation, creativity, and change—a charge that applies not only to the systems we procure in the future but also to the ends, ways, and means that we command and control them.1
Flying through the air, carried by engines that splattered oil in their faces and by wings with a tendency to peel off mid-flight—few have courted innovation like American World War I fighter pilots.2 These brave souls plied the skies during turbulent times and against some formidable foes, including Manfred von Richthofen ("The Red Baron") and his Flying Circus.3 They put their lives on the line piloting what can best be described as "cantankerous, unreliable, finicky, altogether dangerous aircraft," literally flying by the seats of their pants.4 In the end, the tenacity of the Army Air Corps converted a budding technological system—the airplane—into a powerful instrument of war.5
These pilots were not the first warriors to innovate—or the last. Innovation has been, and will always be, vital to military success. New challenges arise, and innovation lifts us to meet and overcome them. Similar to when the Allies took to the skies over Europe over a hundred years ago, the United States faces conflict in new, unfamiliar battlespaces. Now comfortable in the air, the nation must figure out how to operate in the space and cyber domains. Furthermore, new styles of warfighting—such as terrorist tactics and China’s use of missiles and artificial islands—have required the United States to reexamine tried-and-true strategies and weapon systems from yesteryear.6 On top of that, new technologies such as hypersonics, artificial intelligence (AI), unmanned aerial vehicles (UAVs), digital prototyping, and directed energy all have the potential to change how we go about preparing for and waging wars.7 If all this was not enough, the military spent months on end hobbled by COVID-19—a foe 1,000 times smaller than a grain of sand8—that impacted normal operations, constraining and diverting resources to other needs. Similar to the nascent Army Air Corps facing off with the German Flying Circus,9 the modern United States military has worthy, contemporary adversaries to overcome. As General Charles "CQ" Brown, Air Force Chief of Staff, has warned: "[If] [w]e don’t change, if we fail to adapt, we risk losing. We risk losing in a great power competition, risk losing in a high-end fight, we risk losing quality Airmen, losing budget dollars, our credibility and aspects of our national security."10
In addition to these enterprise-wide challenges, every installation, unit, and individual now faces, or will soon face, challenges of their own. The Judge Advocate General’s (JAG) Corps of the various services have plenty. Administrative and military justice system overhauls address concerns relating to sexual assault,11 racial disparities,12 and extremism.13 National security advisors must be prepared to opine on the use of new warfighting technologies.14 Acquisitions professionals must wrestle with new authorities and ways of interacting with industry, from modifications to the Federal Acquisition Regulations (FAR) to increased leveraging of FAR alternatives15 and intellectual property.16 With all these variables and challenges, "[t]here are too many possible futures for us to pick one and build a force that’s geared to defeat it."17
As problems and threats change our world, the need to innovate undergirds everything done within the military and the various JAG Corps. To adjust to change, we will often have to fly by the seats of our pants—or even build our airplanes midflight. As we develop and employ our own "cantankerous, unreliable, finicky, altogether dangerous"18 systems against our Flying Circus equivalents, how can we promote innovation—or even embed it in our culture—to facilitate victory?
This article addresses that question, and it will do so by discussing scalable theories of innovation that legal advisors and leaders can apply to discrete units, entire services, or even their individual lives.19 Beginning with the need to focus on effective innovation, this article provides theories helpful to creating environments that cultivate innovation, and it flags potential pitfalls that threaten creativity and productive change. In the end, it shows the ways in which judge advocates (JA)—as leaders and legal advisors—can understand and embrace a changing world while managing to innovate.
Focus on Effective Innovation, Not Just Change
As military leaders who are concerned about maintaining U.S. military superiority call for change at "the speed of relevance,"20 innovation has become a battle cry and a buzzword. In its most generic sense, innovation means "a new idea, method, or device" or "the introduction of something new."21 In other words, all it takes for something to qualify as an innovation is newness. However, as anyone familiar with the overabundance of "good idea fairies"22 in the military knows, not all innovations and changes are created equal. Newness alone will not secure America’s future.
The innovation needed to advance our varied causes will almost certainly not arise out of aimless change for change’s sake; it will not arise from simply doing something differently than it has been done before, nor will it arise from change aimed at glowing performance reports—although the seeds of innovation can exist even in these changes.23 To have meaningful impact, innovations must improve some process or outcome—they must advance an individual or organization toward mission success. In other words, innovation must help bridge capability gaps, getting us from where we are to where we need to be.24 To highlight the importance of this sort of innovation over generic innovation and change, this article refers to this type of innovation as "effective innovation."
By focusing on effective innovation, military attorneys will ensure that innovation is a tool for growth and problem resolution—not just an end of its own. Carefully, intentionally seeking effective innovation over innovation generally is vital because simply pushing for innovation "can easily become a grab bag of much-touted best practices" that accomplish little.25
Approach Problems Using Theories, Not Checklists
Even when understanding that the goal is effective innovation, the natural tendency is to want a checklist or guide that, if followed, will guarantee success. However, effective innovation is not that simple. There is no one-size-fits-all way to effectively innovate. Although each organization must come up with an innovation strategy, what is required to induce innovation will vary somewhat from one organization to the next. After all, "[t]here are no quick fixes for the fundamental problems of life," and different organizations face different fundamental problems.26 Instead of looking for a guide dictating what to think about problems, it is better to learn how to think about problems—to have useful theories for grappling with novel situations and devising ways to overcome them.27
Fortunately, useful theories for effective innovation abound, in and out of the military. The need to innovate to survive and thrive is not just a requirement of the JAG Corps or the military at large—businesses also require innovation to survive. Furthermore, unlike the military, which spends more time preparing for war than actually fighting it, businesses are engaged in a never-relenting struggle for survival.28 For businesses, failure to adapt means financial and institutional death. In the military, the same mistakes are institutionally survivable—unless the nation itself is defeated—but they can lead to individual tragedy or set a nation up for future defeat. Although the stakes are lower in business-on-business battles than the world’s nation-on-nation conflicts, keys to innovation that business leaders have embraced translate well into military settings.
For example, during President Bill Clinton’s administration, then-Secretary of Defense William Cohen asked to meet with a Harvard Business School professor, Clayton M. Christensen, about Christensen’s research into disruptive innovation.29 Christensen had earlier shaken up the business world with his new theory on disruptive innovation, and senior military leaders wanted to learn more.30 Christensen did not fully understand why he was summoned to present his research, but he agreed to meet. He presented "how the mini-mills had undermined the traditional steel industry"—not typically a subject one would expect the Secretary of Defense, the Joint Chiefs of Staff, or the Secretaries of the Army, Navy, and Air Force to have interest in.31 Christensen recounted later:
General Hugh Shelton, then the chairman of the Joint Chiefs of Staff, stopped me. "You have no idea why we are interested in this, do you?" he queried. Then he gestured to the mini-mill chart. "You see the sheet steel products at the top of the market?" he asked. "That was the Soviets, and they’re not the enemy anymore." Then he pointed to the bottom of the market—rebar—and said, "The rebar of our world is local policing actions and terrorism." Just as the mini-mills had attacked the massive integrated mills at the bottom of the market and then moved up, he worried aloud, "Everything about the way we do our jobs is focused on the high end of the problem—what the USSR used to be."
Once I understood why I was there, we were able to discuss what the result of fighting terrorism from within the existing departments would be, versus setting up a completely new organization. The Joint Chiefs later decided to go down the route of forming a new entity, the Joint Forces Command, in Norfolk, Virginia. For more than a decade, this command served as a "transformation laboratory" for the United States military to develop and deploy strategies to combat terrorism around the world.32
Although the military has again shifted its attention to new, top-of-the-market enemies—as evidenced by Russia’s 2022 assault on Ukraine—this example demonstrates how a good innovation theory, applied effectively to global military problems, can spark key change—even when that theory originated in the business sector.
By learning innovation theories that have been tried and tested in conjunction with commercial and military problems, military leaders and legal advisers will better prepare themselves and their teams to innovate. Applying those theories in practice will empower leaders to confront next-generation problems in ways checklists never will.
Cultivate an Innovation-Friendly Environment
In order to benefit from effective innovation, leaders should cultivate an appropriate environment. In both the military and business, effective innovation does not generally arise out of nothing,33 and it especially struggles to occur within bureaucracies—including military bureaucracies. "[I]n bureaucracies the absence of change is the rule, the natural state"; bureaucracies are designed not to change.34 This is partly because bureaucracies overflow with managers, and "many of the best tools that good managers employ to make ongoing businesses strong can be inimical to innovation."35 Many managerial tools focus on short-term wins, but they often neglect long-term goals or fail to recognize critical shifts in a need or mission. To effect change and effectively innovate for long-term goals or especially perplexing problems, military leaders must actively cultivate an innovation-friendly environment.
This section discusses theories that relate to priming an environment for innovation. It first addresses the need to remain attuned to the problem or need being addressed—the job to be done.36 Then, it explores the relationship between the job to be done and metrics. After addressing that relationship, it describes the need for training innovative teams by expanding worldviews and creating technical experts with the knowhow required for effective innovation. Finally, it covers the need to create a culture of trust.
Focus on the Job To Be Done
Before effective innovation can take place, the first step to take is identifying the job that needs to be done. In military parlance, this could be referred to as the mission, but it really goes deeper than that. "The job to be done" speaks to the underlying need the mission seeks to satisfy—the mission’s raison d’être.
Based on decades of research, business experts have developed this theory—focusing on the job to be done—to guide product development.37 They use it "to home in on . . . the progress that the customer is trying to make in a given circumstance—what the customer hopes to accomplish" rather than simply making guesses based on interesting correlations derived from mountains of data, blindly pressing forward on a comment made at a staff meeting, or impulsively responding to sensational assertions in recent headlines.38 In other words, these experts identify and focus on the capability gaps their customers confront, and they seek ways to meet those needs. Approaching business in this way keeps the innovative focus on helping the customer complete a desired job, which leads to creating a product or service that meets actual needs.39
To illustrate this point, here is a story about milkshakes. A group of business advisors worked with a fast-food restaurant in an effort to increase milkshake sales.40 The company had wrestled with the issue for a long time, gathering data from its customers.41 Focusing on distinct features of the product, they made the milkshakes chocolatier, chunkier, and cheaper—but sales did not go up and profits did not increase.42
Under the advice of the business advisors, the company started asking customers a different question: What job are you hiring that milkshake for?43 Asking this odd question focused on the customer’s underlying needs, and it led to some interesting information:
When they’d struggle to answer this question, we’d help them by asking, "Well, think about the last time you were in this same situation, needing to get the same job done—but you didn’t come here to hire that milkshake. What did you hire?" The answers were enlightening: Bananas. Doughnuts. Bagels. Candy bars. But the milkshake was clearly their favorite.44
In the end, the purpose of the milkshake for the majority of morning customers had little to do with chocolate, cost, or chunks—customers were looking for something to eat on a long, boring commute to help stave off looming hunger, and the milkshake did that job best.45
Although milkshakes have yet to be weaponized, the "job to be done" theory translates easily into the military. Even though military product development differs from what occurs in business, we have jobs that need to be done. What is crucial, however, is remembering that missions must be focused on needs—on figuring out what is the job our "customers" need to have done.
Moving beyond milkshakes, here is another example of this principle in action, this time with a military backdrop. During World War II, the British needed to keep merchant vessels safe from German U-boats.46 In response to this threat, the British Navy used antisubmarine patrols that actively hunted these furtive foes.47 As more British ships sank, "[t]he reaction of the Admiralty was to redouble its demands for active patrolling of the areas in which submarines were thought to be operating, patrols that had not provided the necessary protection for merchant ships."48 This decision to double down on patrols led to more lost ships, which led to even more patrols.49
It turned out that the mission needed to get the job done—the one that the merchant ships required—was convoying, not patrols. Previous to World War II, France and Scandinavia had successfully implemented convoys, and some Royal Naval officers had endorsed the idea as well.50 However, "convoying had been rejected [by the British] before World War I, [and] it was not an established mission."51 By failing to home in on the job that actually needed to be done, and instead clinging to an already-established mission, the British Navy nearly set the stage for "defeat by starvation."52 In other words, they tinkered with an established military product, but failed to see what their nation’s leaders and its people actually needed
These two examples—milkshakes and protection from U-boats—show how crucial it is for effective innovation and mission creation to understand what the job to be done is. Blind changes to milkshakes without really understanding why customers bought them were fruitless, as were new plans to protect merchant ships by increasing patrols. However, understanding the job to be done set the stage for effective innovation: morning commuters got improved food for the road, and merchant ships made it more frequently to their ports of destination.
In the legal community, we have our own customers with needs—ranging from individuals to entire agencies to the Constitution, all of which are frequently represented by the commanders we work for. When a staff attorney advises on the drafting of an other transaction agreement or an adverse action, what governs their recommendations? When a captain looks at improving the process for non-judicial punishment, what guides them in making the implemented changes? When an attorney forging new policy recommends changes to the Uniform Code of Military Justice, what influences the nature of those suggestions? In order to ensure that the changes influenced by attorneys constitute effective innovation, the influence exerted must be focused on the job the customers need done rather than other driving factors. Without that focus, the advice and recommended changes will not likely accomplish what needs to be done.
Mind Your Metrics
Understanding the importance of pinning down the job to be done, the next issue to discuss is both friend and foe: metrics. Metrics, for better and for worse, will never leave us. Managers, especially those in the middle of the chain in large bureaucracies, tend to love them.53 After all, metrics provide snapshots of information that many rely on to measure the success and health of far-flung and complex organizations.54
Despite managerial affection for metrics, they have a dark side. Professor James Griesemer,55 a distinguished professor of science and technology studies at the University of California, Davis, warns:
Practices and policies that use metrics as standards turn work performance . . . into a game in which the goal is to exceed the standard rather than perform the work that was to be measured. In other words, compliance with the standard becomes the goal rather than a side effect of a policy imposing a standard.56
As metrics will likely be used to one degree or another because they can provide value,57 those relying on them need to understand their impact on innovation. When a metric is given, individuals will perform—and innovate—to meet the metric, often at the expense of the job to be done.
The Soviet Union experienced this effect in its centrally-managed economy.58 Soviet authorities provided key metrics to Russian factories, focusing on total weight or quantity of products produced.59 Plant managers worked to meet those metrics in order to obtain the associated bonuses, caring little for anything else.60 As one researcher noted, "[b]onuses were paid to factories and workers for overfulfilling production quotas; as a result, managers lobbied for low quotas so as to exceed the goals more easily, or they falsified reports of actual output."61 As a result, innovation happened, but it focused on meeting metrics rather than the true end goals of production, making the managerial creativity ineffective—or even counterproductive.
To show this is not an issue unique to Soviet production, here is a manifestation of the same problem in corporate America. Years ago, SonoSite, a company that made ultrasound equipment, had two kinds of handheld products, the Titan and the iLook.62 The Titan was the size of a laptop and was three time more expensive than the iLook, which was half the Titan’s size.63 Although the Titan was more powerful and garnered more revenue per sale than the iLook, the iLook was more portable and it had room to grow, especially in future markets.64
SonoSite’s president and chief executive officer, Kevin Goodwin, worried that if it did not sell the iLook, a competitor would create a similar product and disrupt SonoSite’s sales of the Titan, threatening the entire company’s future.65 To better understand the market, Goodwin joined one of his company’s top salespeople on a sales call.66 He listened as the salesperson pitched the Titan to the customer, never referencing the iLook or even pulling it out of his bag.67 Even after Goodwin personally instructed the salesman to show the potential customer the iLook several times, the salesman ignored him, focusing exclusively on selling the Titan.68
This experience taught Goodwin an invaluable lesson: the metric for success provided to the salesperson—selling the product with the highest rate of return—overrode even Goodwin’s insistence that the salesman show the less valuable product so he could measure the customer’s interest in it. As one business expert has pointed out, "The problem was, the salespeople were all on commission, and success for them was defined by the total value of their sales and gross margin dollars. It was much easier for Goodwin’s best salesman to sell one of the laptop-sized ultrasound machines than it was to sell five of the little products."69 Goodwin’s concerns about the long-term growth and profitability of SonoSite as a company were overcome by short-term sales metrics.
This story highlights the power of metrics, and it also points out some of the negative impact they can have on effective innovation. How actions and people are measured matters; human beings will innovate to meet those metrics. When an action or a person is measured on short-term value, such as a sale or a flashy line on a performance report, resource allocation and innovation will focus on accomplishing, or even gamifying, those short-term objectives. Even if leadership preaches long-term strategy and the big picture, the short-term metrics that promise personal success sermonize as well—and often more persuasively. Ultimately, research shows that short-termism, or "focusing on current profits over long-run innovativeness," correlates negatively with effective innovation.70 The end result is that "[i]nappropriate strategic measures of effectiveness [a.k.a. ineffective metrics] may lead an organization to mistakenly increase its efforts, in a vicious cycle, at a time when increasing the effort put into the old methods only draws the organization deeper into failure."71
This is not to say that metrics should be done away with. Rather, the lesson is that metrics need to be carefully calibrated to line up with the jobs that need to be done.72 Furthermore, those expected to meet a metric should be empowered to know why the metric exists and encouraged to speak up if compliance detracts from mission accomplishment. When a metric leads people to accomplish the mission, it provides value. However, when a metric becomes an end of its own, or when it fails to lead to effective innovation, it needs to be rethought or even purged. As long as ineffective metrics remain as measuring sticks for success, people will innovate to meet those standards; no matter what else is said—they will win the metric battle even if it means losing the war.
The acquisitions community has learned lessons in this area over the years. This field of practice has harnessed the value of commercial innovation by telling contractors what the end state should look like—i.e., the job to be done—rather than telling them how to do the job. Focusing on what the end result should be rather than on how to do the job gives contractors flexibility to come up with their own plans, methods, and approaches to meet the stated need. For this reason, the FAR expresses a predilection for "performance-oriented" specifications rather than "design-oriented" specifications.73 As contactors create solutions and compete to solve a stated problem, the government becomes the beneficiary of cultivated, effective innovation.
Those seeking to cultivate innovation in their organizations can follow the acquisitions approach. They can pay careful attention to the use of metrics and look for instances where the metric leads to less-effective, or even undesirable, innovation. They can find ways to help subordinates envision the desired end state rather than blindly follow checklists. By doing so, they can ensure that metrics serve the job to be done instead of supplanting it.
Train Innovative Teams
Aspiring to effectively innovate can be daunting, but it does not have to be done alone. In fact, "[t]he problems we face today are far too complex to be solved by a lone genius working in isolation."74 Innovation is at its best when it is played as a team sport and it is not just a leadership mantra. Good leaders will cultivate subordinates that can join in the effective innovation fray. Although there is no guaranteed curriculum that will make leaders and subordinates innovators, there are certain areas of focus that will make it more likely, including the following: broadening worldviews, creating and using technical experts, and establishing a culture of trust in our organizations.
An easy and helpful catalyst for innovation, individually and collectively, is actively expanding our worldview. In relation to business innovation, Dr. Christensen has pointed out the following:
Innovators’ abilities to see new opportunities to innovate will be greatly enhanced when they simply stand in a different place—when they ask, "How would a small start-up company implement this idea? How does it look to opinion leaders pushing the leading edge of practice? To unsophisticated customers at the bottom of the market?" And when innovators do not simply ask these questions, but are willing to crawl inside these various environments and empathetically observe and understand how these people use products to do their work and make their money, the innovators will be able to develop much more creative products than would be possible had they simply remained within their context.75
Christensen further points out that "while creativity may occasionally result from random strokes of genius, creative insight often comes simply from standing in a different place, where the innovator can observe something that may not be visible from other vantage points."76
Lieutenant General Paul K. Carlton Jr.’s experience at the Pentagon on September 11, 2001 is a good example of this principle in action—and its tremendous impact. General Carlton, then the U.S. Air Force Surgeon General, had the Pentagon uniquely prepared for the terrorist strikes as he had established what were likely the first mass-casualty exercises at the Pentagon earlier that year.77 What prompted him to conduct this sort of training and preparation? He recounted, "I had decided when I became the medical boss that if I were a terrorist, I would hit New York City—and I would hit Washington, D.C."78 Furthermore, he and a colleague, now-retired Colonel John Baxter, had previously discussed the possibility of a plane crashing into the Pentagon earlier in 2001.79 The combination of General Carlton’s willingness to "crawl inside" the terrorist mind, and his reflection on the possibility of an airplane crashing into the Pentagon, led to better preparation for when an unimaginable attack became gritty reality.
Expanding worldviews can happen individually, as was the case with General Carlton contemplating where terrorists would strike, and it can also happen by creating diverse teams, as demonstrated by the conversation he had with Colonel Baxter. After The Wall Street Journal researched the impact of diversity and inclusion among S&P 500 companies, it’s findings "join[ed] an ever-growing list of studies by economists, demographers, and research firms confirming that socially diverse groups are more innovative and productive than homogenous groups."80 Diversity among teammates can come from native characteristics, such as gender or race, and it can also come from acquired experience, such as educational training, experience working in a foreign country, previous career experience, and so on.81
Military attorneys should look for ways to look at issues from new vantage points and to enhance their legal advice. Reading about African cultures’ views about justice may shed light onto ways to approach victim inputs or even principles of economic restitution as seasoned professionals look at issues from new vantage points.82 Government contract attorneys making an effort to better understand contracting officers or industry counsel will see beyond the law and their legal foxhole and gain new insight to the acquisition system at large. Furthermore, taking steps to increase diversity within a team will also bolster new thoughts and ideas. Overall, effective innovation will occur more frequently when military attorneys step away from their comfortable context and try to see with new eyes and from new angles.
Create (and Use) Technical Experts
While broadening our worldviews is a valuable tool, military legal counsel should not stop there. Effective innovation, especially in fields facing disruption, requires "technical personnel with outstanding track records . . . ."83 The business world has learned that technical experts are crucial to identifying disruptive innovation—leaders can trust technical experts to navigate change where other sources that are often used for guidance, such as key customers and marketing and financial staff, are not as reliable.84
Furthermore, technical expertise, which is typically created in the field by those getting their hands dirty, is crucial to effective innovation, both strategically and tactically. Higher-level commanders, even if they previously had been technical experts in the field, "suffer from their remote perspective . . . ."85 Failure to recognize this and failure to include current technical experts "stifle[s] initiative, induce[s] delay, move[s] decision authority away from execution expertise, and [breeds] excessive caution and risk aversion," all of which is inimical to necessary change.86
To supplement the in-field experience, training that leads to know-how—how to get novel jobs done—is also needed. Unfortunately, training in the military and the JAG Corps sometimes merely meets a training-requirement metric or simply focuses on checklist adherence. This approach is problematic because individuals that rely on pre-created checklists or examples are less successful at adapting to new situations and effectively innovating than those who learn the fundamental rules undergirding the checklist.87 For teams that wish to innovate, members of the team must "develop the skill to identify foundational concepts and their key building blocks and to sort new information based on whether it adds to the larger structure and one’s knowledge or is extraneous and can be put aside."88 The ability to accumulate foundational principles and apply them to a wide range of unique situations is knowhow, and knowhow allows for better prediction of and preparation for desired outcomes—and the innovation needed to bridge capability gaps.89
Establish a Culture of Trust
Once technical experts have been developed, establishing a culture of trust serves as a catalyst for effective innovation. In his book, The Speed of Trust, Stephen M. R. Covey makes the compelling argument that trust is something that can and should be consciously cultivated in all kinds of relationships, from the most personal ties between family members to giant corporations’ obligations to society.90 His thesis is simple: trust can be developed—create it and then reap the benefits.91 One of those benefits is improved innovation. He points out that "innovation and creativity demand a number of important conditions to flourish, including information sharing, an absence about caring about who gets the credit, a willingness to take risks, the safety to make mistakes, and the ability to collaborate. And all of these conditions are the fruits of high trust."92
So how can you create a culture of trust beneficial to effective innovation? Trust has two vital ingredients: character and competence.93 The character half of trust "includes your integrity, your motive, your intent with people," while the competence half "includes your capabilities, your skills, your results, your track record."94 So in order to cultivate innovation, leaders must intentionally develop the character and competence of themselves and of those they work with.
Developing trustworthy character is no small feat, and it is generally not a quick fix, especially when trying to restore trust that has been lost or when working in a profession infused with skepticism.95 It will take more than reciting service values; it will demand leaders to practice introspection and selflessness. However, it is worth the effort. When leaders focus on behaviors that induce trust, such as transparency, loyalty, accountability, respect, and extending trust to others, trust will increase.96 As trust increases, those higher levels of trust will bring increases in speed—including in areas of innovation—and decreases in cost, both of which are in high demand in our current operating environment.97 As long as it continues to be developed and harnessed, this increased trust will continue to foster innovation as individuals work with each other, share ideas, and take risks as they look to solve vexing problems.
The competence component of trust grows through the generation of technical experts, as addressed in a previous section. Being competent at a job is a prerequisite for trust. However, creating technical experts with trustworthy characteristics is only the first step: they have to actually be trusted to add their real value. A key principle of military innovation is that "men on the firing line will learn of the need for innovation first, and given the ability to act independently, will innovate more quickly than if they had to wait for orders from above," but this can only happen when they "can collect all the relevant data themselves and can execute the innovation . . . ."98 Allowing this kind of independence requires maximum trust—especially in sensitive, kinetic operations—but it also provides maximum potential for effective innovation.99 Leaders need to be willing to wisely, appropriately extend that level of trust.
Despite its value to innovation, extending trust is an area that will require special effort by many attorneys. After years in practice, trusting others often makes legal counsel squeamish. Covey illustrates this problem through the following anecdote about a conversation he had after one of his training programs:
At the end of one program, a man who was retiring as general counsel of a company came up to me and said, "My legal training and experience have given me a propensity to not trust. At times, this has served me well, but much of the time it has created huge problems. It’s gotten me bogged down in expensive and time-consuming legal relationships, and it has hurt me enormously in personal relationships as I have extended my professional mind-set into my personal life. Now I’m beginning a new career, and I’m inspired by this idea of starting with a propensity to trust. I don’t know what the results will be, but I am convinced that this is the front edge. It’s a better place to start."100
Fortunately, the key to extending trust wisely incorporates an attribute common among attorneys: a high degree of analysis before extending trust.101 Combining "the propensity to trust with the analysis to manage risk wisely" leads to appropriate extensions of trust.102 There is no requirement to trust everyone, and there are times where extending trust is inappropriate, but when you have well-trained teammates with trustworthy character, failing to trust them risks quenching effective innovation. Or, to paraphrase Senate language from the National Defense Authorization Act for Fiscal Year 2018, "any such risk [caused by trusting those led] must be viewed as lesser than the risks of stymieing innovation . . . ."103
Avoid Pitfalls to Innovation
In addition to all the positive steps to take toward innovation, there are also pitfalls to avoid. "History is in fact full of examples of armies and navies that were defeated and went on being defeated because they did not innovate."104 Although there are many reasons and explanations as to why some organizations fail to innovate, this section provides two examples of pitfalls military legal advisors and leaders should keep in mind: creating the cavalry club and patching the wrong holes. This section also highlights some of the principles already discussed, although there are more ways that the theories provided can be used to analyze these cases than this article can capture.
Pitfall 1: Keeping the Cavalry Club
For nearly a millennium, the cavalry reigned supreme on the battlefield,105 and it has occasionally even been used in our modern military.106 However, after centuries of dominance, the development of new weapons undermined the cavalry’s effectiveness. As summarized by the American Museum of Natural History:
The [cavalry’s] last hurrah came with World War I. At the beginning of that war, in 1914, cavalry charges, in which thousands of soldiers on horseback rode into battle together, were still seen as a major offensive tactic. But trench warfare, barbed wire, machine gun[s], and other modern developments effectively brought such charges to a dead halt. By the war’s end, horses were still used behind the lines to transport guns and supplies, but their role in leading the attack had become a thing of the past.107
In the end, millions of horses died during the war, and most of the cavalry’s chargers were converted into pack animals by the end of the conflict.108
However, the riders fared much better than the average warhorse, at least in terms of prestige and tactical influence. According to historians, being in the cavalry meant membership to an exclusive, well-connected club, even after World War I.109 The culture and tradition surrounding the horse cavalry led to it remaining a mainstay in European armies long after World War I obviated the need for such warriors.110 This means that cavalry units continued to consume resources and influence military operations even though they "rarely had to go to war and so rarely had to test [their] romantic ideas against military realities."111 And, although the presence and prestige could have had some positive impact on recruiting officers to this military club, it did not cultivate effective innovation for the current jobs to be done.112
Although no one in the military is petitioning Congress to clone extinct destriers113 for future combat missions, all military organizations—including the various services’ JAG Corps—need to be mindful of prominent positions or roles that may no longer be necessary. The future is going to have hard questions to answer: What will become of pilots in an era of unmanned aircraft, lasers, and cheap, expendable drones?114 What legal roles could—or even should—be supplanted by algorithms and artificial intelligence?115 As technology and warfare advance, sustaining cavalry-like positions distracts from the jobs that actually need doing and squelches innovation by those on the actual firing line. The military services cannot allow modern-day cavalry equivalents to hinder the growth of the kinds of warfighters the nation needs. Effective innovation sometimes means abandoning old ways and means.
B-17 Flying Fortresses assigned to the 97th Bombardment Group fly into formation during World War II. (Photo courtesy of Airman Air Museum)
Pitfall 2: Patching the Wrong Holes
Moving from the "War to End All Wars" to its 1940s sequel, the United States again found itself locked in military conflict against powerful enemies. As Allied aircraft got peppered by enemy bullets and flack, military officers concerned about efficiency wanted better-armored planes.116 Observing planes returning from missions, they paid attention to where the planes had bullet holes in them.117 Understanding that concentrating the armor on the parts getting hit most rather than over the entire plane would maintain maneuverability and consume less fuel, they approached Abraham Wald of the Statistical Research Group wanting to know how much armor belonged on the most damaged parts of the aircraft.118 Wald’s response surprised them: the planes needed armor where there were fewer holes—on their engines.119
Wald understood that "[t]he reason planes were coming back with fewer hits to the engine is that planes that got hit in the engine weren’t coming back."120 Where others saw an opportunity to protect against the very-visible-but-less-significant damage to future planes, he thought deeper and saw the critical need to prevent future planes from sustaining the fatal-but-unseen wounds suffered by lost planes.
This story demonstrates the need to focus resources—time, manpower, money, and brainpower—on the right causes of problems, not the superficial ones. Innovation that fixes superficial problems is good, but it is less effective. Leaders need to make sure they are patching the right holes, rather than just responding to what merely appears to be important and urgent.
There are plenty of metaphorical planes—across all legal domains—that need fixing. A recent example of a problem needing deep, careful attention is the disappearance and death of Specialist Vanessa Guillén at Fort Hood, Texas. After she was murdered by a fellow Soldier, the Army—and the military as a whole—has been bombarded by news articles lambasting the military action and inaction associated with her murder.121 As Major General Gene LeBoeuf acknowledged, "We as an Army failed to protect Vanessa Guillén."122
Now, like engineers looking at bullet-riddled airplanes, the military needs to decide where to place the armor to prevent future Guillén-like catastrophes. Much like principles of aerodynamics limited how much armor could shield World War II airplanes, defendants’ constitutional rights and other principles limit military justice reformation. With those limitations in mind, what systemic changes can be made to save future members from Specialist Guillén’s tragic fate? Are proposed solutions—such as firing individuals involved or creating a new awareness program—protecting military engines, or are they merely patching holes in the wings? Furthermore, are there other ways to approach this problem, such as how the services recruit and screen potential Service members or how the military can cultivate respect for fellow human beings, which the organizations should leverage?
This article will not answer these questions or solve the issues resulting in the loss of Specialist Guillén—or the myriad of other difficult problems the military currently faces in various areas of the law—and it does not intend to. That said, it is crucial to remember that to solve complex problems, leaders and their legal advisors must endeavor to patch the right holes, which are not necessarily the obvious or easy ones.
25th Infantry Division "Tropic Lightning" Military Justice maintained tactical proficiency at the M4 qualification range. Pictured are SPC Lelia Contee and CPT Rachel Rose.
With future conflicts on the horizon, filled with foes as agile and capable as at any time in history, the ability to effectively innovate will make the difference between victory and defeat. Effective innovation will not flow from checklists or rigid formulas for success. However, if leaders focus on effective innovation, embrace and invest in theories that lead to effective innovation, and train and trust their subordinates to do the same, we will build a force adaptive enough to defeat whatever comes our way. TAL
1. Lieutenant General (Retired, U.S. Air Force) David A. Deptula, A New Era for Command and Control of Aerospace Operations, Air & Space J., July-Aug. 2014, at 5, 12.
2. John F. Ross, Enduring Courage: Ace Pilot Eddie Rickenbacker and the Dawn of the Age of Speed 133–35 (2014).
3. Id. at 151.
4. Id. at 133, 140–56.
5. Stephen L. McFarland, A Concise History of the U.S. Air Force 1–11 (1997).
6. Eric Heginbotham et al., Tallying the U.S.-China Military Scorecard: Relative Capabilities and the Evolving Balance of Power, 1996–2017 (2015), https://www.rand.org/content/dam/rand/pubs/research_briefs/RB9800/RB9858z1/RAND_RB9858z1.pdf; Eric Heginbotham et al., U.S. and Chinese Air Superiority Capabilities: An Assessment of Relative Advantage, 1996–2017 (2015), https://www.rand.org/content/dam/rand/pubs/research_briefs/RB9800/RB9858z3/RAND_RB9858z3.pdf; Eric Heginbotham et al., Chinese Threats to U.S. Surface Ships: An Assessment of Relative Capabilities, 1996–2017 (2015), https://www.rand.org/content/dam/rand/pubs/research_briefs/RB9800/RB9858z4/RAND_RB9858z4.pdf.
7. Major Annemarie Vazquez, LAWs and Lawyers: Lethal Autonomous Weapons Bring LOAC Issues to the Design Table, and Judge Advocates Need to Be There, 228 Mil. L. Rev. 89 (2020) (referring to artificial intelligence); Steven Simon, Hypersonic Missiles Are a Game Changer, N.Y. Times (Jan. 2, 2020), https://www.nytimes.com/2020/01/02/opinion/hypersonic-missiles.html (referring to hypersonic missiles); Jim Garamone, Esper: Air Force, Space Force Leading Charge to New Technologies, U.S. Dep’t of Def. News (Sept. 16, 2020), https://www.defense.gov/Explore/News/Article/Article/2349408/esper-air-force-space-force-leading-charge-to-new-technologies/ (referring to directed energy, this article indicates "China and Russia have placed weapons on satellites and are developing directed energy weapons to exploit U.S. systems . . . ."); Katharina Ley Best et al., How to Analyze the Cyber Threat from Drones 1 (2020), https://www.rand.org/content/dam/rand/pubs/research_reports/RR2900/RR2972/RAND_RR2972.pdf (referring to the danger imposed by drone swarms and unmanned aerial vehicles).
8. See Na Zhu et al., A Novel Coronavirus from Patients with Pneumonia in China, 2019, New Eng. J. Med. 727 (2020). See also Soil Sci. Div. Staff, U.S. Dept. of Agric., Soil Survey Manual (Craig Ditzler et al. eds., 4th ed. 2017).
9. Ross, supra note 2, at 151.
10. General Charles Q. Brown, U.S. Air Force Chief of Staff, Keynote Address at the Air Force Association’s Virtual Air, Space, & Cyber Conference (Sept. 14, 2020), https://www.airforcemag.com/afas-vasc-2020-gen-charles-q-brown-jr-chief-of-staff-of-the-air-force/.
11. Office of The Judge Advoc. Gen., Military Justice Act of 2016: Overview, U.S. Army (Jan. 10, 2019), https://www.army.mil/standto/archive/2019/01/10/#:~:text=The%20Military%20Justice%20Act%20of,sustaining%20good%20order%20and%20discipline (addressing how the military has recently made the most sweeping changes to military justice in sixty years).
12. U.S. Gov’t Accountability Off., GAO-20–648T, Military Justice: DoD and Coast Guard Need to Improve Their Capabilities to Assess Racial Disparities (2020).
13. Todd South, Extremism in the Ranks is a "Threat," but the Pentagon’s Not Sure How to Address It, Mil. Times (Feb. 21, 2021), https://www.militarytimes.com/news/your-military/2021/02/21/extremism-in-the-ranks-is-a-threat-but-the-pentagons-not-sure-how-to-address-it/ (highlighting that even though there are "low numbers [of extremists] in absolute terms, individuals with extremist affiliations and military experience are a concern to U.S. national security . . . .").
14. Vazquez, supra note 7.
15. U.S. Gov’t Accountability Off., GAO-21-8, Army Modernization: Army Should Improve Use of Alternative Agreements and Approaches by Enhancing Oversight and Communication of Lessons Learned (2020). See also Major Clayton J. Cox & Major Annemarie P.E. Vazquez, Modernizing Through Innovative Acquisition, Army Law., no. 5, 2020, at 83.
16. U.S. Dep’t of Def., Instr. 5010.44, Intellectual Property (IP) Acquisition and Licensing (16 Oct. 2019).
17. Technical Sergeant Areca T. Wilson, Acquisition Chief Calls for Disruptive Agility, New Digital Paradigm, U.S. Air Force (Sept. 16, 2020), https://www.af.mil/News/Article-Display/Article/2350344/acquisition-chief-calls-for-disruptive-agility-new-digital-paradigm/.
18. Ross, supra note 2, at 133.
19. Clayton M. Christensen et al., How Will You Measure Your Life? 16 (2012).
20. Jim Garamone, DoD Restructures Acquisition, Technology Office to Improve Military Lethality, Speed, U.S. Dep’t of Def. News (Aug. 2, 2017), https://www.defense.gov/Explore/News/Article/Article/1265231/dod-restructures-acquisition-technology-office-to-improve-military-lethality-sp/.
21. Innovation, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/innovation (last visited Sept. 21, 2021).
22. See Good Idea Fairy, Urban Dictionary, https://www.urbandictionary.com/define.php?term=good%20idea%20fairy (last visited Sept. 21, 2021).
23. Freek Vermeulen et al., Change for Change’s Sake, Harv. Bus. Rev. (June 2010), https://hbr.org/2010/06/change-for-changes-sake.
24. Nathan Wiita & Orla Leonard, How the Most Successful Teams Bridge the Strategy-Execution Gap, Harv. Bus. Rev. (June 2015), https://hbr.org/2017/11/how-the-most-successful-teams-bridge-the-strategy-execution-gap.
25. Gary P.Pisano, You Need an Innovation Strategy, Harv. Bus. Rev. (Nov. 23, 2017), https://hbr.org/2015/06/you-need-an-innovation-strategy.
26. Christensen et al., supra note 19, at 10.
27. Id. at 10–11.
28. See Stephen Peter Rosen, Innovation and the Modern Military: Winning the Next War 8 (1991) ("Military organizations, in contrast [with the commercial sector], exist in order to fight a foreign enemy, and do not execute this function every day . . . . Instead of being routinely ‘in business’ and learning from ongoing experience, they must anticipate wars that may or may not occur. In addition, they are governed by professional officer corps into which new blood can only be introduced from below, and only with the approval of the senior leadership.")
29. Christensen et al., supra note 19, at 12. See also Clayton M. Christensen, The Innovator’s Dilemma: The Revolutionary Book That Will Change the Way You Do Business, at xii–xxxi (2005).
30. Christensen et al., supra note 19, at 12–13. The term "disruptive innovation" is frequently used, but it is not as frequently understood. Those interested in what disruptive innovation means can find a wealth of material in business publications. As a good starting point, see Clayton M. Christensen et al., What Is Disruptive Innovation?, Harv. Bus. Rev. (Dec. 2015), https://hbr.org/2015/12/what-is-disruptive-innovation.
31. Christensen et al., supra note 19, at 12–13.
32. Id. at 13.
33. Clayton M. Christensen, Innovation and the General Manager 100 (1999).
34. Rosen, supra note 28, at 5.
35. Christensen, supra note 33, at 3.
36. Clayton M. Christensen et al., Know Your Customers’ "Jobs to Be Done," Harv. Bus. Rev. (Sept. 2016), https://hbr.org/2016/09/know-your-customers-jobs-to-be-done.
39. Jade Scipioni, Elon Musk on the Problem with Corporate America: "Too Many MBAs," CNBC, https://www.cnbc.com/2020/12/09/elon-musk-on-the-problem-with-corporate-america-too-many-mbas-.html (Dec. 10, 2020, 6:17 PM).
40. Christensen et al., supra note 19, at 103.
41. Id. at 103–04.
43. Id. at 104.
44. Id. at 104–05.
45. Id. at 105.
46. Rosen, supra note 28, at 36.
53. Michael Harris & Bill Tayler, Don’t Let Metrics Undermine Your Business, Harv. Bus. Rev. (Sept.–Oct. 2019), https://hbr.org/2019/09/dont-let-metrics-undermine-your-business.
54. Michael J. Mauboussin, The True Measures of Success, Harv. Bus. Rev. (Oct. 2012), https://hbr.org/2012/10/the-true-measures-of-success.
55. James Griesemer, UC Davis, https://philosophy.ucdavis.edu/people/jrgriese (last visited Feb. 8, 2022).
56. James Griesemer, Taking Goodhart’s Law Meta: Gaming, Meta-Gaming, and Hacking Academic Performance Metrics, in Gaming the Metrics: Misconduct and Manipulation in Academic Research 78 (Mario Biagioli & Alexandra Lippman eds., 2020).
57. Harris & Tayler, supra note 53.
58. Emily Chamlee-Wright, What Soviet-Era Production Can Teach Us About Innovation in Higher Ed, Forbes (Jan. 15, 2020, 11:23 AM), https://www.forbes.com/sites/emilychamleewright/2020/01/15/what-soviet-era-production-can-teach-us-about-innovation-in-higher-ed/?sh=5c379eec7aa8.
61. Jeanne Kuebler, Soviet Economy: Incentives Under Communism, in 2 Editorial Research Reports (1966), https://library.cqpress.com/cqresearcher/document.php/document.php?id=cqresrre1966092100.
62. Christensen et al., supra note 19, at 63.
65. Id. This is an example of the dilemma caused by a potentially disruptive innovation.
66. Id. at 64.
69. Id. at 63–65.
70. Anne Marie Knott, The Real Reasons Companies Are So Focused on the Short Term, Harv. Bus. Rev. (Dec. 13, 2017), https://hbr.org/2017/12/the-real-reasons-companies-are-so-focused-on-the-short-term.
71. Rosen, supra note 28, at 35–36.
72. Mauboussin, supra note 54.
73. FAR 11.101(a) (2022).
74. Greg Satell, 4 Ways to Build an Innovative Team, Harv. Bus. Rev. (Feb. 13, 2018), https://hbr.org/2018/02/4-ways-to-build-an-innovative-team.
75. Christensen, supra note 33, at 100 (emphasis added).
77. G. W. Pomeroy, 9/11: Former AF Surgeon Recalls Pentagon Post-Attack Response, U.S. Air Force (Sept. 1, 2011), https://www.af.mil/News/Features/Display/Article/142652/911-former-af-surgeon-recalls-pentagon-post-attack-response/.
78. Air Foce Judge Advocate General’s School Podcast, 18. Leadership Through Disruptive Innovation with (Ret.) Lt Gen Paul K. Carlton Jr–Part 2, DVIDSHub (June 15, 2020), https://cdn.dvidshub.net/media/audio/2006/DOD_107854916.mp3.
79. Pomeroy, supra note 77.
80. Stuart R. Levine, Diversity Confirmed to Boost Innovation and Financial Results, Forbes (Jan. 15, 2020, 7:03 AM), https://www.forbes.com/sites/forbesinsights/2020/01/15/diversity-confirmed-to-boost-innovation-and-financial-results/?sh=2bf6acc4a6a5.
82. Viviane Saleh-Hanna, Colonial Systems of Control: Criminal Justice in Nigeria 395–414 (2008).
83. Christensen, supra note 33, at 19.
85. Deptula, supra note 1, at 9.
87. Peter C. Brown et al., Make it Stick: The Science of Successful Learning 157 (2014).
88. Id. at 154.
89. Id. at 161.
90. Stephen M. R. Covey & Rebecca R. Merrill, The Speed of Trust: The One Thing That Changes Everything 1–2 (2008).
92. Id. at 255.
93. Id. at 30.
95. Id. at 300–15.
96. Id. at 230–32.
97. Id. at 13–17.
98. Rosen, supra note 28, at 39 (emphasis added).
99. See id. at 130–47. Mr. Rosen discusses the transformation of American submarine tactics in World War II, shifting from targeting the Japanese military fleet to targeting merchant shipping, a change prompted by "an organization with a radically decentralized command structure and good intelligence about the enemy." Id. at 130.
100. Covey & Merrill, supra note 90, at 298.
101. Id. at 290.
103. S. Rep. No. 115-125, at 190 (2017).
104. Rosen, supra note 28, at 9.
105. The Age of Cavalry, c. 400 CE—1350, Britannica, https://www.britannica.com/technology/military-technology/The-age-of-cavalry-c-400-ce-1350 (last visited Sept. 21, 2021).
106. Diana Stancy Correll, How the "Horse Soldiers" Helped Liberate Afghanistan from the Taliban 18 Years Ago, Mil. Times (Oct. 18, 2019), https://www.militarytimes.com/news/your-military/2019/10/18/how-the-horse-soldiers-helped-liberate-afghanistan-from-the-taliban-18-years-ago/.
107. Retreat of the Cavalry, Am. Museum of Nat. Hist., https://www.amnh.org/exhibitions/horse/how-we-shaped-horses-how-horses-shaped-us/warfare/retreat-of-the-cavalry (last visited Sept. 21, 2021).
109. Rosen, supra note 28, at 2–3.
110. Id. at 2.
111. Id. at 3.
113. See generally Destrier, Britannica, https://www.britannica.com/animal/destrier (last visited Apr. 20, 2022).
114. Rachel S. Cohen, "The Fighter Jet Era Has Passed," A.F. Mag., Apr. 2020, at 20 (providing arguments for and against the continued use of manned fighter jets). See also Kyle Mizokami, Elon Musk Says the Fighter Jet Is Dead, Popular Mechs. (Mar. 3, 2020), https://www.popularmechanics.com/military/aviation/a31194615/elon-musk-fighter-jet-dead/ (asserting that new technology will make it safer and more effective for fighter jets to be remotely piloted).
115. Neil Sahota, Will A.I. Put Lawyers Out of Business?, Forbes (Feb. 9, 2019, 10:43 AM), https://www.forbes.com/sites/cognitiveworld/2019/02/09/will-a-i-put-lawyers-out-of-business/?sh=791080d431f0; but see Vazquez, supra note 7 (discussing the need for increased attorney involvement in the design of weapon systems utilizing artificial intelligence).
116. Jordan Ellenberg, Abraham Wald and the Missing Bullet Holes, in How Not To Be Wrong (2014), https://medium.com/@penguinpress/an-excerpt-from-how-not-to-be-wrong-by-jordan-ellenberg-664e708cfc3d.
121. Dave Phillips, Military Missteps Allowed Soldier Accused of Murder to Flee, Report Says, N.Y. Times (Apr. 30, 2021), https://www.nytimes.com/2021/04/30/us/vanessa-guillen-fort-hood-aaron-robinson.html; Courtney Kube, Slain Soldier Vanessa Guillen Had Reported Sexual Harassment but Leadership Did Nothing, NBC News (Apr. 30, 2021, 3:49 PM), https://www.nbcnews.com/news/military/slain-soldier-vanessa-guillen-had-reported-sexual-harassment-leadership-did-n1266023; Karli Goldenberg, "I Am Vanessa Guillén Act" Praised as Calls for Removing COs from Sexual Assault Prosecutions Mount, Military.com (May 25, 2021), https://www.military.com/daily-news/2021/05/25/i-am-vanessa-guillen-act-praised-calls-removing-cos-sexual-assault-prosecutions-mount.html.
122. Phillips, supra note 121.