Volume 165, Issue 1 
December 2016

Consent Is Not Enough: Why States Must Respect the Intensity Threshold in Transnational Conflict

Oona A. Hathaway, Rebecca Crootof, Daniel Hessel, Julia Shu & Sarah Weiner

It is widely accepted that a state cannot treat a struggle with an organized non‐state actor as an armed conflict until the violence crosses a minimum threshold of intensity. For instance, during the recent standoff at the Oregon wildlife refuge, the U.S. government could have lawfully used force pursuant to its domestic law enforcement and human rights obligations, but President Obama could not have ordered a drone strike on the protesters. The reason for this uncontroversial rule is simple—not every riot or civil disturbance should be treated like a war.

But what if President Obama had invited Canada to bomb the protestors—once the United States consented, would all bets be off? Can an intervening state use force that would be illegal for the host state to use itself? The silence on this issue is dangerous, in no small part because these once‐rare conflicts are now commonplace. States are increasingly using force against organized non‐state actors outside of the states’ own territories—usually, though not always, with the consent of the host state. What constrains the scope of the host state’s consent? And can the intervening state always presume that consent is valid?

This Article argues that a host state’s authority to consent is limited and that intervening states cannot treat consent as a blank check. Accordingly, even in consent‐based interventions, the logic and foundational norms of the international legal order require both consent‐giving and consent‐receiving states to independently evaluate what legal regime governs—this will often turn on whether the intensity threshold has been met. If a non‐international armed conflict exists, the actions of the intervening state are governed by international humanitarian law; if not, its actions are governed instead by its own and the host state’s human rights obligations.

Something to Talk About: Information Exchange Under Employment Law

Joni Hersch & Jennifer Bennett Shinall

To avoid the appearance of sex discrimination that would violate Title VII of the Civil Rights Act, Equal Employment Opportunity Commission (EEOC) guidance coupled with a common misunderstanding of the law have resulted in little or no information about family status being provided in pre‐employment interviews. To investigate whether concealing family information actually improves women’s employment prospects, we conducted an original experimental study fielded on more than 3000 subjects. Our study provides the first ever evidence that concealing personal information lowers female applicants’ hiring prospects. Subjects overwhelmingly preferred to hire candidates who provided personal or family information, regardless of content—any explanation improved employment prospects relative to no explanation for an otherwise identical job candidate. Our results are consistent with the behavioral economics theory of ambiguity aversion, which finds that individuals prefer known risks over unknown risks. These findings have broader implications regarding permissible pre‐employment questions, as they suggest that restrictions on questions about matters such as criminal history and credit history, both of which are currently targeted by legislatures and by the EEOC for prohibition, may likewise have adverse effects on the classes of workers such restrictions are intended to protect. Finally, our findings suggest that the interactive process model of reasonable accommodation, embodied in the enforcement guidance for the Americans with Disabilities Act, may provide a better model for accommodation of work–family balance.

Policing as Administration

Christopher Slobogin

Police agencies should be governed by the same administrative principles that govern other agencies. This simple precept would have significant implications for regulation of police work, in particular the type of suspicionless, group searches and seizures that have been the subject of the Supreme Court’s special needs jurisprudence (practices that this Article calls “panvasive”). Under administrative law principles, when police agencies create statute‐like policies that are aimed at largely innocent categories of actors—as they do when administering roadblocks, inspection regimes, drug testing programs, DNA sampling programs, and data collection—they should have to engage in notice‐and‐comment rulemaking or a similar democratically oriented process and avoid arbitrary and capricious rules. Courts would have the authority to ensure that policies governing panvasive actions are authorized by statute and implemented evenhandedly, both in individual instances and as they are distributed within the agency’s jurisdiction. Furthermore, these principles would apply regardless of whether the panvasive practice has been designated a search or seizure under the Fourth Amendment.


Maybe Publius Was Right: Relying on Merger Price To Determine Fair Value in Delaware Appraisal Cases

Daniel E. Meyer

In this Comment, I argue that calls for reform to the appraisal remedy should be aimed at the Delaware Court of Chancery. The purpose of this Comment is not to express a normative judgment about the overall desirability of appraisal arbitrage; rather, I propose a shift away from the Chancery Court’s oft‐favored valuation technique, discounted cash flow (DCF) analysis, in appraisal cases arising out of certain third‐party, or arm’s‐length, transactions. The Chancery Court should instead rely on merger price as the best estimate of the “fair value” of an appraisal petitioner’s shares when (1) the inputs required for a DCF analysis are unreliable and (2) there has been a genuine market test.

Reliance on the merger price under these conditions would allay concerns on both sides of the debate. For proponents of appraisal arbitrage, this valuation approach does not impinge on shareholders’ ability to resort to the appraisal remedy by restricting their deadline to the record date. Additionally, the Chancery Court’s embrace of merger price would incentivize additional disclosure by target companies in order to demonstrate that the sale process was fulsome. For opponents of appraisal arbitrage, when there has been a genuine market test and a DCF analysis is unreliable, the use of merger price punishes appraisal petitioners when their claims are unwarranted (i.e., purely speculative investments aimed at low‐premium transactions). Appraisal arbitrageurs cannot profit from “buying into” a lawsuit when the merger price is used as fair value; they must bear litigation expenses and additionally may face a “synergy deduction,” as appraisal claimants cannot capture any value arising from the expectation of the merger. Thus, this approach to valuation would only encourage claims where there is real reason to believe that the price achieved in the merger was not “fair”—namely, in controlling shareholder and parent/subsidiary mergers—and would remove some uncertainty from third‐party mergers (the transactions that are the primary focus of M&A lawyers).

Our Antitotalitarian Constitution and the Right to Identity

Brian T. Ruocco

Underlying the United States Constitution is an antitotalitarian principle—i.e., the government cannot define, regulate, or compel aspects of life that are fundamental to identity and personhood. Prohibitions of compulsory childbirth, flag salutes, ideological education, and racial separation most clearly evince this bulwark against totalitarianism.

Nonetheless, from birth, the government enforces legal gender, restricts the availability of legal gender reclassification, and prevents individuals from removing themselves from the legal gender system. The government thus affirmatively produces and compels identity on an individual level. Moreover, for trans* people, these laws cause expressive and dignitary harm, increase exposure to violence, and diminish life opportunities. Although these gender identity laws constitute a totalitarian occupation of individual lives, they have evaded constitutional scrutiny.

This Comment (1) evaluates the right to identity situated in the midst of the Constitution’s proscription of totalitarianism and (2) investigates constitutional arguments supporting trans* people’s right to self‐determine their gender identity. Specifically, this context illuminates the right to identity and how the government engages in compulsory, affirmative identity formation. Ultimately, this Comment demonstrates that for trans* people and our Constitution alike, we must eliminate totalitarian gender identity laws and totalitarianism in all forms.

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