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\"In 2015, the United States Department of Defense published its long-awaited Law of War Manual making a significant statement on the position of the US government on important military matters. Whilst readers recognise the Manual's legal and strategic importance, they may question whether particular statements of law are legally accurate or complete. This book offers a unique in-depth review of the complete Manual, including revisions, on a paragraph-by-paragraph, line-by-line and word-by-word basis. The authors offer their personal assessment of the DoD's declared view as to the law that regulates the conduct of warfare, a subject of unparalleled current importance. William H. Boothby and Wolff Heintschel von Heinegg offer a balanced, articulate and authoritative critique for readers perusing the Manual in whatever capacity\"-- Provided by publisher.

The Supreme Court says that Chevron has two steps: Is the statute ambiguous (Step One), and, if so, is the agency's interpretation of the ambiguous provision a permissible one (Step Two)? Yet over the last three decades, the DC Circuit has inserted an intermediate step between Steps One and Two: Did the agency recognize that the statutory provision is ambiguous? If not, then the DC Circuit refuses to proceed to Chevron Step Two and remands the matter to the agency. This doctrine—which we dub \"Chevron Step One-and-a-Half\"—has led to dozens of agency losses in the DC Circuit and DC federal district court, but it has gone entirely unmentioned in administrative law casebooks and is rarely referenced in the academic literature. The few who have not ignored the doctrine have treated it with skepticism. Chief among those skeptics is now—Chief Justice John Roberts, who while a DC Circuit judge criticized his colleagues for applying the doctrine. This Article presents a more sympathetic account of Chevron Step One-and-a-Half. After providing an overview of the Chevron Step One-and-a-Half doctrine, we offer several theories why Chevron Step One-and-a-Half cases continue to arise, even though agencies can avoid the doctrine by stating that they would hew to their view regardless of whether the relevant statutory provision is ambiguous. Some number of Chevron Step One-and-a-Half cases might be explained by the fact that agencies are ignorant of the doctrine or ambivalent about their own policies, but we suggest that there also may be strategic reasons why agency actors might maintain that a statute is unambiguous. For instance, agency lawyers with a preference for a particular reading (or with patrons who have such a preference) might seek to increase influence over policy by declaring that a statute can be interpreted only one way. Alternately, an agency might claim that a statute is unambiguous in order to reduce the probability that the White House's Office of Information and Regulatory Affairs will second-guess the agency's choice. In a similar manner, an agency might attempt to evade political accountability for an unpopular policy by claiming that the choice was compelled by Congress. Finally, an agency might maintain that a statute is unambiguous in order to \"lock in\" an interpretation so that future administrations cannot undo it. After identifying the potential causes of Chevron Step One-and-a-Half cases, we consider how courts ought to respond to the potential for strategic agency behavior. We suggest that, when viewed in this light, Chevron Step One-and-a-Half helps to uphold the theoretical justifications for Chevron deference. While Chevron Step One-and-a-Half remands also impose undeniable costs on administrative agencies, we argue that these costs ought to be evaluated against the considerable benefits that the doctrine potentially brings.

Standard questions in the theory of administrative law involve the allocation of power among legislatures, courts, the President, and various types of agencies. These questions are often heavily informed by normative commitments to particular allocations of governmental authority among the three branches of the national government. These discussions, however, are incomplete because agencies are typically treated as unitary entities. In this Article, we examine a different question: how does administrative law allocate power within agencies? Although scholars have sometimes cracked open the black box of agencies to peer inside, their insights are localized and confined to particular contexts. We will generalize the idea, attempting to show that administrative law allocates power both horizontally and vertically within agencies and offering some hypotheses about the nature of the resulting effects. Horizontally, administrative law directly or indirectly determines the relative influence within agencies of various types of professionals— lawyers, scientists, civil servants, politicians, and others. Vertically, administrative law directly or indirectly determines the relative influence within agencies of appointed agency heads, midlevel bureaucrats, and line personnel. This perspective illuminates several of the most puzzling judicially developed principles and doctrines of administrative law, including the doctrines surrounding Chenery, Chevron, Mead, andAccardi, as well as agency structures and procedures established by statute or executive order. The internal allocation perspective offered here both improves upon and critiques existing justifications for these developments and in that sense points the way toward a superior understanding of administrative law.

The U.S. Food and Drug Administration is the most powerful regulatory agency in the world. How did the FDA become so influential? And how exactly does it wield its extraordinary power?Reputation and Powertraces the history of FDA regulation of pharmaceuticals, revealing how the agency's organizational reputation has been the primary source of its power, yet also one of its ultimate constraints. Daniel Carpenter describes how the FDA cultivated a reputation for competence and vigilance throughout the last century, and how this organizational image has enabled the agency to regulate an industry as powerful as American pharmaceuticals while resisting efforts to curb its own authority. Carpenter explains how the FDA's reputation and power have played out among committees in Congress, and with drug companies, advocacy groups, the media, research hospitals and universities, and governments in Europe and India. He shows how FDA regulatory power has influenced the way that business, medicine, and science are conducted in the United States and worldwide. Along the way, Carpenter offers new insights into the therapeutic revolution of the 1940s and 1950s; the 1980s AIDS crisis; the advent of oral contraceptives and cancer chemotherapy; the rise of antiregulatory conservatism; and the FDA's waning influence in drug regulation today. Reputation and Powerdemonstrates how reputation shapes the power and behavior of government agencies, and sheds new light on how that power is used and contested.

Why do international institutions behave as they do? International organizations (IOs) have emerged as significant actors in global governance, whether they are overseeing monetary policy, setting trade or labor standards, or resolving a humanitarian crisis. They often execute international agreements between states and markedly influence domestic law, which makes it important to analyze how international institutions behave and make policy. Conducting an ethnographic analysis of the internal dynamics of IOs, including their formal and informal norms, incentive systems, and decision-making processes, can usefully aid in understanding institutional behavior and change. This article analyzes the organizational culture of one particularly powerful international institution—the World Bank (the Bank)—and explores why the Bank has not adopted a human rights policy or agenda.

Why are some diversified market identities problematic but others are not? We examine this question in the context of high-status corporate law firms, which often diversify into one low-status area of work—family law (FL)—but face a barrier (strong disapproval from existing clients) that prevents diversification into another such area—plaintiffs’ personal injury law (PIL). Drawing on a qualitative study of the Boston legal market, we argue that this barrier reflects a situation where loyalty norms have been violated, and it surfaces because service to individual plaintiffs is tantamount to betraying the interests of corporate clients. Our analysis clarifies identity-based limits to diversification, indicating that they are rooted in concerns about the firm’s commitments as well as its capabilities, and suggests a more general refinement of theory on status and conformity.

For the last sixty years, American foreign and defense policymaking has been dominated by a network of institutions created by one piece of legislation--the 1947 National Security Act. This is the definitive study of the intense political and bureaucratic struggles that surrounded the passage and initial implementation of the law. Focusing on the critical years from 1937 to 1960, Douglas Stuart shows how disputes over the lessons of Pearl Harbor and World War II informed the debates that culminated in the legislation, and how the new national security agencies were subsequently transformed by battles over missions, budgets, and influence during the early cold war. Stuart provides an in-depth account of the fight over Truman's plan for unification of the armed services, demonstrating how this dispute colored debates about institutional reform. He traces the rise of the Office of the Secretary of Defense, the transformation of the CIA, and the institutionalization of the National Security Council. He also illustrates how the development of this network of national security institutions resulted in the progressive marginalization of the State Department. Stuart concludes with some insights that will be of value to anyone interested in the current debate over institutional reform.

As part of the Florida State University College of Law’s Environmental Law Without Courts Conference, this Essay examines two ways administrative law operates with little, if any, judicial oversight: Federal agencies play a substantial role in drafting the legislation that empowers them to regulate, and agencies then typically have broad discretion within that congressionally delegated authority to choose how to regulate. The former legislative-drafting activity fully escapes judicial review, and the agency choices made in the latter rulemaking activity are usually only reviewed by courts for reasonableness. In other words, a vast amount of agency lawmaking escapes judicial review, which suggests that it is all the more important to understand the key players within the agency that engage in these legislative and regulatory activities. Part I of this Essay briefly outlines these two types of agency lawmaking activity and how they are insulated from judicial review. Part II explores how agency design may matter in both lawmaking activities — with a particular emphasis on the agency general counsel office — by discussing the various agency organizational models identified in the author’s prior study for the Administrative Conference of the United States. In particular, the combined legislation and regulation legal office has the virtue of ensuring that those agency lawyers who help draft the legislation can fully leverage the agency’s experience and expertise in implementing the legislation, and vice versa. This Part also flags a number of best practices for agency general counsel offices to consider short of consolidating legislative and regulatory counsel in one office. This Essay is by no means a comprehensive take on how agency design choices can affect agency lawmaking. Instead, the objective here is to call attention to the topic and sketch out potential avenues for further research and discussion. Such further exploration is particularly important with respect to agency lawmaking that is insulated from judicial review.

This article addresses one of the more disturbing questions raised by the major financial failures of the recent past; namely, how it could be that professionals, highly trained both in ethics and technical disciplines, should apparently collude with management in corporate misbehaviour. The article builds on evidence suggesting that professionals in employment contexts find ways of adapting in order to minimise perceived or actual conflict between their professional and organizational obligations and that this, in turn, may affect the way in which they exercise professional judgment. It uses identity theory to propose that professionals may adopt modified identities when employed and that these identities may be expressed, in part, in the way in which they resolve ethical dilemmas. The article reports on the results of a qualitative study in which corporate counsel showed evidence of adopting these identities. The findings suggest that this line of research offers insight into a far more complex world of employed professionals than that traditionally hypothesised and that the popular approach of regulators and others to monitoring corporate governance by appointing professionals as gate-keepers within the organization is perhaps problematic.