Was reading Tim Kane’s now nearly year old column from The Atlantic, Why Our Best Officers Are Leaving?  He proposes officer assignments based on merit and a market economy, sort of a chaos theory of filling all available jobs. Anyone considered the impact on Judge Advocate assignments?  Why not allow people to specialize and find the right officer for the job?

21 Responses to “Market Economy for Judge Advocate Assignments”

  1. Some Army Guy says:

    Why not?

    Because “the system” wants a bunch of well-rounded, fungible JAs. Even those who try to specialize get rounding assignments because it’s what’s “best” for them.

    And let’s not get into our mismanagement of officers accessed into the JAG Corps through the FLEP program…

  2. stewie says:

    At least in the Army we are told the same thing, the army needs diverse JAGS who can do a little of everything, no room for specialists (except a lucky few in contracts).
    I think the fear is that if folks are allowed to specialize then everyone will want to specialize and no one will have the diversity needed to be an SJA, but my belief is that only some will want to specialize (plenty of folks I know have zero interest in crim law), and that the corps could easily do a couple of things:
    1. Limit the number allowed to specialize to the best. You want to specialize in crim law, you better be a very good advocate, not just ok. Make it clear the numbers are limited and you attract the best, and the rest get a little of it and then back to other assignments.
    2. Make diversity a pre-requisite to becoming an SJA (if you ever want to be an SJA, you have to take a variety of assignments).
    I think there is a path between everyone becoming a specialist and the current everyone is a generalist model.

  3. Army JAG says:

    It’s interesting that you write this. Apparently the question has been asked of JAG leadership whey we can’t specialize in areas such as contracting or crim law. After all, do you really want someone with zero contracting experience advising a 4 star on a multimillion dollar contract? The response (at least from the Army side) was there was simply not enough slots for those people as the become senior (O-5 and O-6) leaders.

    I’ve always been very happy with my assignments process. I don’t know if I’ve just been lucky or what, but I do know those guys work extraordinarily hard to match the right person fror the job.

    But, I would echo Army Guy’s statement about mismanagement of FLEPs.

  4. stewie says:

    Well the part about specializing in contracts certainly doesn’t seem to be true because there are a few folks who seem to do just that who are definitely O-5s. I think the key on the crim law side is to stop making judge positions things we give to folks as they are going out the door or as rewards for long service, particularly for ACCA. ACCA should be filled only with crim law gurus, military judges should be folks with roughly 10 years of crim law experience.
    I’ve been mostly happy with the assignments process as well, but that’s an individual fortune which could run out the next time, not any belief that we’ve fully found the right balance between jack of all trades and specialization.

  5. Dew_Process says:

    Why, in this economy, does the FLEP program even continue to exist?  That’s a more basic question.

  6. Charlie Gittins says:

    The one thing I totally agreed with in this article is the following thought — because of the way assignments and promotions occur, the very best and the very worst officers leave the service early — they self identify that they can either do better or they will fail.  That leaves the average peeps to compete for the rest of the jobs, particularly at the top.  It dumbs down the officer corps and, as has been my experience, the level of competence at the senior levels of the JA corps.  Those that can, leave and do.  Those that can’t end up as SJAs or military judges.     

  7. stewie says:

    That’s, with all due respect as usual, way too harsh Mr. Gittins. I can for example point to COL Ham as one of several examples of an officer who is extremely competent in fact outstanding, and has been both an SJA and a military judge.
    I can speak of other military judges, at least in the Army, that are clearly not “those that can’t.” The problem is not that somehow all the good ones leave, it is that we have a system that actively discourages specialization so we do not have enough folks with extensive crim law experience as judges (or as SJAs).
     
     

  8. Peanut Gallery says:

    Anyone ever heard of or read the book “The Peter Principle”? 
    From wiki:
    The Peter Principle states that “in a hierarchy every employee tends to rise to his level of incompetence”, meaning that employees tend to be promoted until they reach a position at which they cannot work competently. It was formulated by Dr. Laurence J. Peter and Raymond Hull in their 1969 book The Peter Principle, a humorous treatise which also introduced the “salutary science of hierarchiology.”
    The principle holds that in a hierarchy, members are promoted so long as they work competently. Eventually they are promoted to a position at which they are no longer competent (their “level of incompetence”), and there they remain, being unable to earn further promotions. Peter’s Corollary states that “in time, every post tends to be occupied by an employee who is incompetent to carry out their duties” and adds that “work is accomplished by those employees who have not yet reached their level of incompetence.” “Managing upward” is the concept of a subordinate finding ways to subtly “manage” superiors in order to limit the damage that they end up doing.

  9. Just Sayin' says:

    Stewie,

    Have to agree with Charlie here.   Maybe it’s different in the Army, but I’m not impressed with 80% of the Navy Judiciary.  The good ones are outstanding, but all to often it’s not the case.  I won’t name names, but there are a lot of jurists where the fact they heard your case should be prima facia grounds for mandatory appellate review.

    It’s like practicing in the courtroom the law forgot.

  10. Army JA says:

    I completely agree on the sentiments expressed about the Army FLEP program. I have met 3 good FLEPs in my 4 years as a JAG. Perhaps the most galling moment in my interactions with FLEPs was sitting at lunch listening to FLEPs complain about how they are getting promoted “a year late” because they went to law school. Never mind that they got a free $100,000 education (on top of their USMA education) and a guaranteed job after law school.
     

  11. Two Yewtes says:

    Charlie Gittins says:
    The one thing I totally agreed with in this article is the following thought — because of the way assignments and promotions occur, the very best and the very worst officers leave the service early — they self identify that they can either do better or they will fail.  That leaves the average peeps to compete for the rest of the jobs, particularly at the top.  It dumbs down the officer corps and, as has been my experience, the level of competence at the senior levels of the JA corps.  Those that can, leave and do.  Those that can’t end up as SJAs or military judges.

    I might be able to jump on this, respectfully, train wreck of a thought, if all we as judge advocates cared about was money.  How about this; those that can… lead and mentor, those that can’t… get taught by those that lead and mentor. 

    When I left NJS and started taking cases as a TC, I screwed up plenty of times.  There were a number of judges who were true professionals and taught me, mentored me and gave me feedback after every trial.  My point is this, the military judges that I have dealt with (for the most part) have been true leaders and mentors.  They “can”, and yet they stay and still “do.” 

  12. Dew_Process says:

    SAG – I think you nailed it!  Sad, but true…..

  13. Not me says:

    I cannot agree with Charlie’s characterization of the senior JAs in the services either.  As Two Yewtes said, perhaps, if money was the only thing driving people, Charlie’s characterization would be accurate.  Of course, if money was all that mattered the same could be said for anyone at DoJ, the FPD, the Federal Judiciary, and even those who take on Courts Martial in private practice.  None of these positions offers pay at the highest level of compensation.  CJ Roberts, and Rehnquist before him argued that the lack of pay for Art III judges caused the brightest minds to eschew the judiciary.  Perhaps true for some, but others (Posner comes to mind) are regularly regarded as very smart and capable (even if you don’t agree with their philosophy). 

    Some military lawyers stay because they can’t do better, some stay out of a genuine desire to serve. We’ve all encountered attorneys who in our estimation didn’t measure up, but that doesn’t mean they are the norm. The same goes for civilian attorneys.  Ask any TC or DC who has been around for more than 2 years whether they’ve met a civilian defense counsel who was a complete rip off and they’d no doubt be able to name at least one.  Charlie, I doubt you’d admit that you represent military clients because you’re not bright enough to represent Fortune 10 companies.  So yes, there is a problem of mediocrity at high levels of the military (and in all government, and even all areas of law, I would contend), but it’s certainly not a reason to paint all MJs and SJAs with a broad and disparaging brush.

  14. Some Army Guy says:

    My initial comment wasn’t aimed at FLEPs, but instead on how we use them.  They receive a large number of the teaching jobs at the JAG School or the policy jobs at OTJAG, despite the fact that often they’ve only been a lawyer for a couple of years.
    As former line officers with practical Army and leadership experience, they should be “in the field” where they can help bridge the gap between the JAG and line communities, but instead many of the FLEPs end up teaching subjects to students who have more experience with the subject than the instructors.

  15. ArbCapCPT says:

    To: “Some Army Guy”: (1) what does “only . . . couple of years” practicing law have to do with quality research, teaching, or mentorship required of instructors at the JAG school? How many years of practical experience did the average professor at your law school have before they gave that up to teach full time? Did that lack of experience hinder their ability to teach the law? Is there not also the argument that a little bit of distance from the practice yields greater objectivity and less reliance on the “this is how I used to do it” pedagogy? (2) Let’s not forget that ANY officer assigned to a teaching position, in ANY branch, does more (and is expected to do more) than simply teach: they provide a necessary mentorship role to junior officers. So your argument that FLEP officers (with their “practical Army and leadership experience” as you say) are somehow less qualified than other attorneys to teach at the JAG School is a bit off the mark. This leads me to (3): your comments, as well as those of others, seem to forget that JAGs are not simply attorneys who happen to work for the Army and happen to wear the uniform. As a commissioned officer, that role carries inherent leadership and non-technical (i.e., non law related) duties that are inherent and meaningful to working on line unit staffs, or running departments/offices/agencies in the field, in DC, or in combat. Those skills and attributes do not come, as I’m sure you’d agree, without sufficient experience and training….the kind that does not come from simply graduating law school and/or practicing pure civilian law for a period of time. So (4) I also take issue with your argument about “policy” positions in DC. It presumes that FLEP officers by and large get those jobs over non-FLEPs (where’s the data for that?), that non-FLEPs want those jobs and seek those job but do not get those jobs (again, where’s the data?), and that “policy” development need not consider the average FLEP’s line officer time + legal education (on par with everyone else’s education mind you) + practical experience as a lawyer (which you falsely assume will ALWAYS be less than a non-FLEP of equal rank and time in grade) when selecting those personnel.  Clearly, “policy” jobs at OTJAG are less about practicing law and more about how the law (in whatever core JAG discipline you’d prefer to think about) intersects with, impacts, or is affected by the institutional Army. Surely, you would not argue that JAGs with line officer time (not to mention the years of education and training that came before their commissioning, unlike the average direct commissionee) could not adequately (or even superbly) perform in that role?
    As for “Army JA”: I’m sorry you’ve only met “three good FLEPs in 4 years.” However, your last comment suggests your criteria for judging the value, worth or leadership ability of a FLEP officer is tied only to whether or not they had the gall to raise a valid observation and gripe about promotions (which, in fact, is true). Anecdotally, which seems to be your MO of argument so I’ll continue with it, I’d say I’ve met far more direct commissionee JAGs that ALSO gripe about the fact that FLEPs will assume leadership roles in the JAG Corps with far less experience actually practicing law. Yet, I do not use that as “evidence” for a faulty presumption that the majority of direct commissionnee JAGs are somehow “not (as) good.” And, let me point out, that USMA grads do not make up the totality of FLEP officers….and nothing, I might add, would have stopped you from attempting to get that same “free” education, or alternatively doing ROTC, commissioning in another branch, serving a few years as a line officer, and then getting your “free” law degree. Your recent post smacks of a narrow-mindedness towards a significant chunk of your officer peers, is borderline disrespectfully arrogant, and unprofessional if you were to make such arguments face-to-face without the shield of blogging anonymity.

  16. Army JAG says:

    why all of the hate here? There are good officers and bad officers. Good direct commissionees and bad ones. There are good FLEPs and bad FLEPs. Good civilians and bad civilians. I would wager that in any of those categories the vast majority are decent, hardworking people. A few bonehead civilians or FLEPs or whatever does not a military make.

  17. Some Army Guy says:

    ArbCapCPT
    I’ll refer to my earlier comment that “many of the FLEPs end up teaching subjects to students who have more experience with the subject than the instructors.”

    Being a good JAG officer isn’t about knowing the law based on outlines, caselaw, and powerpoint slides — it’s about applying that knowledge to real-world situations.  Probably one-third of the Grad Course instructors had *less* experience than I did in the subjects they taught.  They only knew their outlines and their slides; they didn’t know, because of their lack of experience, how to apply that knowledge.  Therefore, they couldn’t teach/coach/mentor.

    And comparing JAG School instructors to law school professors?  Law school teaches the law, not the practice of law, so that’s certainly not a good counterexample.

    Mentorship in Charlottesville?  In the schoolhouse environment?  On real Army experiences?  It’s not there and can’t really be there in a building full of attorneys.  You can have seminars and “writing exercises” and such, but they’re about as artificial as the classrooms in Charlottesville.

  18. Zachary Spilman says:

    All this talk about FLEPs must have gotten the Marine Corps thinking. Released today:

    SUBJ/FY12 AND FY13 VOLUNTARY EARLY RELEASE PROGRAM FOR SPECIAL EDUCATION PROGRAM AND ADVANCED DEGREE PROGRAM GRADUATES

    1. PURPOSE.  HQMC IS ACCEPTING WAIVER REQUESTS FROM ACTIVE DUTY MARINE OFFICERS WHO, DURING FY12 OR FY13, COMPLETE AT LEAST 36 OF 48 MONTHS OBLIGATED SERVICE INCURRRED INCIDENT TO THE SPECIAL EDUCATION OR ADVANCED DEGREE PROGRAMS.

    2. ELIGIBILITY.
        A.  PER THE REFERENCES, REQUESTS FOR WAIVERS ARE BEING ACCEPTED FROM OFFICERS ELIGIBLE FOR RELEASE FROM ACTIVE DUTY UNDER THIS PROGRAM DURING FY12 OR FY13.  REGARDLESS OF THE GRADUATE CURRICULUM STUDIED, OFFICERS MUST COMPLETE AT LEAST 36 MONTHS OBLIGATED SERVICE BEFORE SEPARATION OR RETIREMENT.
        B.  MORE THAN TWENTY (20) YEARS OF ACTIVE DUTY SERVICE ARE STILL REQUIRED TO RECEIVE RETIREMENT BENEFITS.
        C.  THIS PROGRAM WILL NOT SUPERSEDE ANY OTHER SERVICE OBLIGATIONS INCURRED DUE TO PROMOTION, PCS, ETC.
        D.  SUBMIT WRITTEN REQUESTS FOR EARLY RELEASE UNDER THIS PROGRAM VIA THE CHAIN OF COMMAND TO CMC (MMSR-2) PER REF D.  ALL REQUESTS WILL BE CONSIDERED BASED ON THE NEEDS OF THE MARINE CORPS AND REQUIRE FAVORABLE ENDORSEMENT BY THE CHAIN OF COMMAND.

    3. THIS MARADMIN IS NOT APPLICABLE TO THE MARINE CORPS RESERVE.

    4. THIS MARADMIN CANCELS ON 30 SEP 2013.

    5. RELEASE AUTHORIZED BY MR. M. F. APPLEGATE, DIRECTOR, MANPOWER PLANS AND POLICY DIVISION.//

  19. Rob M says:

    Army JAG- agreed.  There are good and bad officers everywhere, in every demographic.  Unfortunately, many if not most in the Army (and, I would imagine, the other branches) tend to judge by the group ALL THE TIME: women, lawyers, FLEP, West Pointers, line officers, service support personnel, etc.   One bad experience with someone who fits into a particular category just reinforces the stereotypes you’ve already heard, and it’s hard for the next person to overcome it.  [FWIW, for those who haven’t read my posts before, I’m both FLEP (former IN) and USMA.]  SAG- maybe you’re right on how to use the former line officers to bridge that gap (certainly makes logical sense), though by the time everyone makes O-4 it seems like the distinctions between FLEP and Direct Commission have softened a lot, and a DC can be just as good at that as the FLEP officer. 

    W/r to FLEP promotions- you sign the form acknowledging you’ll get promoted slower than ACC branches before you enter the program.  You agreed to it in exchange for the tuition, 3 years off (with pay) to go to school, etc.  No one can seriously say we got a raw deal.  For me, I’d rather have more time as a CPT to learn how to do my new job than worry about competing with people in my old branch. 

    W/r to the original topic of the post, I actually like how the JA assignment process seems to be more individualized than in my old branch.  Compare to “you’re one of a thousand captains…Fort Hood needs eighty, so we’ll shovel a random bunch over there” this branch seems better, even if not everyone gets what they want all the time.   

    As far as “specialization,” the usual argument is rather than make everyone a TC for 12 months or so, only pick the really good ones and let them prosecute for 2-3 years and get good at it.  But the JAG Corps is not unique among the branches in that it tries to rotate everyone through the “key” jobs as a captain- but it’s how you do in those “key” jobs that sets you up for the future.  Kind of like in the line, pretty much everyone gets to command, but depending on how they do depends on what they are allowed to do afterwards.  At the upper levels there is a greater degree of specialization than at company grade. 

    Stewie- I kind of like your idea about having the “generalist” track and the “specialist” track, but maybe after O-4/grad course.  Kind of like line officers can stay line after command, and keep rotating around the usual jobs, or jump to a functional area track and get really good at one thing. 

    As far as why the best officers leave, this topic has been studied for decades and generally comes to the same types of conclusions.  Based solely on my experiences, I don’t think “ALL” the best officers leave, and I also think that being the “best” involves a lot of intangibles beyond the narrow scope of “able to do their primary job.”  Some people are excellent lawyers (or, for that matter, logisticians, engineers, etc.) but the military just isn’t the right fit for them.  Some people might be so-so lawyers but incredible leaders, teachers, and mentors.  In the end I think that the corps and the military is better off having the second type of person in it than the first.   

    Oh, and beat Navy. 

  20. stewie says:

    Rob, the problem is that at least in the Army Captains can pretty much have free reign to do what they want, the key is once you make Major, if you want to continue progressing, you have to become a generalist…which is the reverse of what you are suggesting. I worried not at all about my assignments as a Captain, but that changed once I got past there.

  21. Rob M says:

    So maybe a “SJA track” vs. “Specialist track” split would make sense at O-4 then.  That’s why the line branches went to functional areas, b/c you’d have guys that would want to be really good at, say, strategic logistics management, and would gravitate toward those jobs, but were competing against guys who did the company command-good senior captain job-S3/XO-battalion command-brigade command track, and always came up short.  Seems like a similar problem for which a similar solution might work.