This chapter examines the meaning of a ‘use of force’ under article 2(4) of the UN Charter, focusing on its required effects, gravity and intention. It analyses the required type of effects, namely, whether they must be physical, the required object/target, the required level of directness between the act and its harmful effects, and if temporary or potential effects count. With respect to gravity, it argues there is no de minimis threshold for a ‘use of force’ under article 2(4) but that gravity is nonetheless relevant to the contextual requirement that the act be in ‘international relations’ and is an indicative element of a ‘use of force’. Finally, it analyses whether a particular intention is required for a ‘use of force’ under article 2(4), examining accident, mistake and coercive and hostile intent. This section considers the relationship between the prohibitions of the ‘threat’ and ‘use’ of force, the non-intervention principle and the object and purpose of article 2(4). It concludes that like gravity, a coercive or hostile intent is relevant to the contextual requirements of article 2(4) and is an indicative element of a ‘use of force’.

The author explores how consent functions as commitment, content, and constitution for international agreements. He argues that consent constructs all forms of international commitment. Consent elucidates an agreement’s contents – what the agreement ‘is’ in terms of scope and substance. Consent can also function as a constitution – delimiting not only ‘primary’ rules encapsulated by an agreement’s existence and contents, but ‘secondary rules’ determining who can make agreements, how they must do so, and ways to recognize, adjust, and end them. For all these functions, consent remains an under-examined and undifferentiated concept. Today, almost any of consent’s functions can be established by almost any formal or informal means. Alongside existing proposals (presumptions/defaults and content-based criteria), this chapter proposes that international law should pursue more – and different – formalities for consent. Having different forms of consent follow its different functions may, according to the author, improve the efficacy of consent and with it the efficacy of international agreements overall.

This vintage rape case concerns an Alabama court’s determination that the jury may consider “social conditions and customs founded upon racial differences, such that the prosecutrix was a white woman and the defendant was a Negro man” in assessing a Black defendant’s culpability for assault with intent to rape. This case represents how rape law was weaponized against Black men and is an ideal case for a feminist rewritten opinion to interrogate how race and rape are closely intertwined.

This chapter raises the question whether attribution of wrongful acts to the State is based on ‘objective’ causal chains or ‘subjective’ mental states. It argues that attribution of conduct to the State is not primarily causal or fault-based. First, it shows that several of the Articles on the Responsibility of States for Internationally Wrongful Acts cannot be understood in terms of causation or fault. Second, it argues that causal and fault-based theories of attribution are either circular or incomplete. Instead, the chapter claims, the logic of attribution is primarily functional. The rules of attribution converge around the central principle that an act of State is an act performed in the service of a State function, such as defence or detention. Functional attribution is best understood as ‘intersubjective’: it is determined not by objective causal chains or by subjective mental states, but by shared ideas about the functions of the State and what it means to perform them. The functional character of the rules of attribution allows them to adapt to economic and technological changes, such as the growth of corporations and the development of autonomous weapons.

Appeal from the United States District Court for the Southern District of Texas.Before JONES, FOSTER, and WISDOM, Circuit Judges.

This chapter outlines several ways that autonomous organizations will put pressure on existing law and will perhaps require accommodations from the law in the future. In particular, legal concepts like fraud that require “intent” may become less workable as more legal action is taken by systems that lack the capacity for intent. Moreover, if perpetually autonomous organizations become more commonplace, the law will need to pay attention to the possible drift between their initial operating agreements and future states of affairs, whether because of the possibility of “hacking” or simply because general circumstances have unexpectedly changed.

Identifying the will of the lawmaker has long been the central interpretive inquiry in American jurisprudence, an approach this nation inherited from a very lengthy set of legal predecessors. A great deal of commentary throughout Western legal history has been devoted to the questions of what constitutes the will of the lawmaker, and where interpreters should find evidence of that will, but there has been impressive agreement on the question of whether interpreters should do so. This chapter will address both what and where, but, first, there is a question that is peculiar to the American constitutional setting: who is the lawmaker? This chapter argues that the primary lawmaker is the Framers, and, only secondarily, the ratifiers. Based on work by Richard Ekins and others, it shows that there actually can be an intention of the constitutional lawmakers that is recoverable by interpreters. It also shows that the records of the constitutional debates and drafting can potentially provide essential information for interpreters seeking to determine what policy choice was made by the adoption of the constitutional language – that is, the ends and means represented by the text.

The methods used to interpret performance obigations fail to recognize the contextuality of contracts, which creates the need to use value-balancing reasoning to determine performance obligations.

Chapter 7’s four rewritten cases deal with proof of systemic disparate treatment and impact discrimination. The rewritten Sears opinion rejects expert testimony that blamed women’s lack of interest in commission-based sales for the dearth of women employed in those jobs, characterizes this testimony as sex stereotyping, and holds that courts may not rebut strong statistical showing by plaintiffs in pattern or practice cases with sex stereotypes. Rewritten AFSCME exposes implicit bias in the market forces causing a pay gap between men and women, and narrates the real-life stories of the women whose pay was substantially lower in jobs of equal value to those of male colleagues. Rewritten Ricci holds that white plaintiffs who challenge an employer’s failure to use a test with a disparate impact on black and Latino employees must show that the employer lacked an actual and reasonable belief that it would be subject to liability for disparate impact if it used the test. Rewritten Wal-Mart certifies a large class of female employees, and holds that a showing of intent is not necessary when the statistics demonstrate discriminatory outcomes and the employer fails to rectify the problem.

When courts exercise judicial review, should they invalidate laws that are not motivated by public reason? For proponents of public reason, a standard response might be that laws not motivated by public reason are impermissible under the liberal principle of legitimacy. But this response must confront the permissibility objection, which holds that a law’s motivation is irrelevant to its moral permissibility. Against this objection, this chapter defends a motivational requirement for purposes of judicial review. In some cases, an agent’s motivation can be relevant to the permissibility of the agent’s actions. This chapter also argues that laws with mixed motives, both nonpublic and public, may be permissible, but courts have reason to give such laws careful scrutiny in determining whether they are publicly justified.

This chapter presents cores features of criminal responsibility attached to violations of rules dealt with elsewhere in the book. Hereunder the proportionality rule in particular.