VOLUME 165, ISSUE 1 December 2016

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.

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.

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.