Academic

Witt on Counterinsurgency Damages

By Lawrence Solum

John Fabian Witt (Columbia) has posted Form and Substance in the Law of Counterinsurgency Damages (Loyola of Los Angeles Law Review, Forthcoming) on SSRN. Here is the abstract:

American-style damages payments have become one of the ways the twenty-first century U.S. military attempts to win the hearts and minds of civilians in war zones. In places like Afghanistan and Iraq, many American judge advocates are doing the work of personal injury lawyers and insurance company claims adjusters: using cash to settle civilian claims against the armed forces. In many ways, the use of damages law in the military campaign against terrorism takes part in an old American tradition of insisting that law is in the service of strategy. But a close examination of the law of foreign claims raises a deeper problem for the use of law as a non-lethal weapon in counterinsurgency contexts. Call it the dilemma of law and strategy. In the law of foreign claims, as the field is known, the relationship between legality and strategic advantage is often inverse. The more law-like the claims payment system, the less tactical flexibility soldiers have to deploy money as a weapon tailored to the terrain of the battlefield. The more flexible it is, the less law-like it tends to be. Commanders and claims officers in Afghanistan and Iraq seem to understand this much better than the official doctrine suggests. But in these theaters, the opposite problem has begun to come to the fore. Unconstrained tactical flexibility produces inconsistent determinations, and lawless inconsistency may be as strategically harmful as overly legalistic rigidity. The nub of the law-strategy dilemma is that legality is both a threat and an imperative.

Full post as published by Legal Theory Blog on March 12, 2008 (boomark / email).