Chapter 12 examines how the terrorist threat after September 11 redirected constitutional war powers toward foreign enemies as well as domestic governance. It argues that the early 2000s produced not a single wartime settlement but a sequence of competing claims, authorizations, and constraints shaped by evolving assessments of danger. The chapter traces how the Bush Administration advanced expansive claims of presidential authority to use force preemptively against terrorist groups and hostile states. Yet those claims were never squarely tested, because Congress enacted sweeping authorizations in 2001 and 2002 that delegated extraordinary discretion over targets, geography, and duration. Once war was authorized, the most consequential constitutional disputes concerned how it could be waged. Detention, interrogation, surveillance, military commissions, and targeted killing became focal points for interbranch conflict and judicial intervention. Congress and the courts rejected assertions that wartime authority was immune from legal limits, even as they accepted a long-term war framework. The result was a system of war powers marked by broad delegation and continuing uncertainty about how extraordinary authorities can be narrowed or brought to an end.

Chapter 9 examines the legal, economic, and ethical dimensions of using nonnegotiated form contracts to bar class action lawsuits. The chapter begins by recounting recent legal changes. It then examines the economic risks posed by class action litigation and discusses the contractual solution. The chapter closes with the ethical requirements for companies when contracting from a position of advantage. The professional self-restraint advocated in this closing chapter dovetails with positions taken throughout this book. In particular, the call for self-restraint in contracting jettisons the financial risk management approach to compliance in favor of the corporate social responsibility approach outlined in earlier chapters.

This chapter examines the constitutional foundations, historical development, and judicial interpretation of eminent domain in the United States. Rooted in the Fifth Amendment’s Takings Clause, the doctrine highlights the tension between private ownership and public necessity. Early cases such as Barron v. Baltimore (1833) limited the Clause to federal action, but Chicago, B. & Q. Railroad v. Chicago (1897) incorporated it against the states. The Supreme Court has since expanded its reach: Pennsylvania Coal v. Mahon (1922) introduced the concept of regulatory takings, while Penn Central v. New York City (1978) stressed investment-backed expectations. The Court has distinguished physical takings, as in Loretto v. Teleprompter (1982), from regulatory restrictions and scrutinized exactions in Nollan (1987), Dolan (1994), and Koontz (2013). Controversy peaked with Kelo v. New London (2005) and most recently Tyler v. Hennepin County (2023). Overall, eminent domain jurisprudence reflects the struggle to balance property rights with public purposes

This chapter examines the scope and limits of state authority in the US federal system, emphasizing the tension between state powers and federal supremacy under the Commerce Clause. It traces the issue from the Articles of Confederation, where fragmented state regulation created disorder, to the Constitution’s grant of congressional authority over interstate and foreign commerce while reserving state powers under the Tenth Amendment. Supreme Court decisions chart the evolving balance: Gibbons v. Ogden (1824) stressed federal control, while Cooley v. Board of Wardens (1851) allowed state regulation of local commerce. Later rulings refined taxation and regulation at the state level, while dormant Commerce Clause cases such as Dean Milk (1951) and Philadelphia v. New Jersey (1978) barred protectionism. The chapter concludes that states retain broad police powers, yet these are constrained to safeguard the national economic union.

This chapter examines the means by which the Constitution distributes powers between the states and national government, including the courts, and then explores the historical and judicial processes through which the federal government gained ascendancy over the states, considering key cases such as McCulloch v. Maryland (1819). To connect these issues to contemporary debates, a lower federal court's evaluation of the legitimacy of federal efforts to force state actors to work for federal agencies in enforcing immigration policy is considered in US v. Illinois (2025). The second portion of the chapter considers contemporary manifestations of federalism, including the increasing importance of the Eleventh Amendment in defining state sovereignty, with special consideration of the Americans with Disabilities Act. The final section briefly considers another form of concurrent sovereignty – that of Native American tribes. The relationship between the Native American tribes and the federal government, as well as the authority of the states, creates a unique constitutional dynamic in the United States, as demonstrated in McGirt v. Oklahoma (2020).

The main goal of this chapter is to introduce one type of AI used for law enforcement, namely predictive policing, and to discuss the main legal, ethical, and social concerns this raises. In the last two decades, police forces in Europe and in North America have increasingly invested in predictive policing applications. Two types of predictive policing will be discussed: predictive mapping and predictive identification. After discussing these two practices and what is known about their effectiveness, I discuss the legal, ethical, and social issues they raise, covering aspects relating to their efficacy, governance, and organizational use, as well as the impact they have on citizens and society.

Involvement of employers in the provision of health care in the United States has a long history. Employer-mediated health insurance has certain advantages compared to an individual market for health insurance. Employment-based insurance reduces the risk of adverse selection, allows workers to benefit from the expertise and buying power of the employer, and helps ameliorate cognitive biases that might lead workers to under-insure. Prior to passage of the Affordable Care Act (ACA), ERISA did little to affirmatively regulate the content of health benefit plans, and ERISA’s broad preemptive reach posed a significant obstacle to states attempting to impose content controls. The passage of the ACA and its conforming amendments to ERISA changed matters importantly but not completely; various ACA reforms now affect benefit plans directly or indirectly, while leaving largely in place ERISA’s overall scheme of regulation. Future reform efforts – whether single-payer (Medicare for All) or a public option – may very well change that, but for now ERISA retains its potency as a health insurance regulatory statute.

Sometimes, it is possible for an industry to preempt government regulation by mitigating the societal concerns that prompt the government to intervene. This is desirable when government intervention is likely to be clumsy. Executing preemption is difficult. The challenge lies in the absence of enforcement power: not every industry player, and sometimes no single industry player, necessarily has an incentive to do what is desirable for the industry as a whole. And, by construction, there is no Institution with the power to impose change. This chapter studies two general settings in which this challenge exists and, nevertheless, the industry is able to achieve optimal preemption.

Chapter 5 turns to a description of the array of common law and statutory defenses that defendants who are sued for public nuisance claims have used in response to litigation. The chapter surveys several conventional tort defenses to public nuisance claims such as lack of causation, lack of proximate causation, failure to define an injury to a common public right, lack of unreasonable interference with a public right, remoteness, lack of standing, economic loss rule, municipal recovery rule, compliance with regulatory rules and standards, federal preemption, federal displacement, the learned intermediary, third party intervention, unconstitutional vagueness, statutes of limitation, violation of the dormant Commerce Clause, and the Eleventh Amendment. In addition, defendants have argued that individual claimants have failed to satisfy the special injury rule that might entitle them to compensatory damages. The chapter evalutes judicial discussion of these defenses and notes cases in which courts have found several defenses to be inapplicable, or overcome by the plaintiffs factual pleadings.

This volume, part of the Feminist Judgment Series, shows how feminist legal theory along with critical race theory and intersectional modes of critique might transform immigration law. Here, a diverse collection of scholars and lawyers bring critical feminist, race and intersectional insights to Supreme Court opinions that deal with the source of the power to regulate immigration, state and local regulation of immigration, citizenship law, racial discrimination, employment law, access to public education, the rights of criminal defendants, the detention of noncitizens, and more. Feminist reasoning values the perspectives of outsiders, exposes the deep-rooted bias in the legal opinions of courts, and illuminates the effects of ostensibly neutral policies that create and maintain oppression and hierarchy. One by one, the chapters in this book reimagine the norms that drive immigration policies and practices. In place of discrimination and subordination, the authors here demand welcome and equality. Where current law omits the voice and stories of noncitizens, the authors here center their lives and experiences. Collectively, they reveal how a feminist vision of immigration law could center a commitment to equality and justice and foster a country where diverse newcomers readily flourish with dignity.

How can the use of force by states be constrained under international law?  Under what circumstances has the use of force by states been deemed "legitimate"?  How are rules about the legitimate use of force changing?  These questions are examined in depth, along with the relevant instruments of international law.  The chapter details the various ways that "force" and "aggression" have been defined and used.  It treats all the major forms of force or coercion, including full-scale military operations, economic sanctions and reprisals, proxy and clandestine forces, small-scale conflicts.  It then traces growing prohibitions on the use of force from the League, the UN, the ICJ, and other sources.  Finally, the Laws of Armed Conflict are highlighted as are the Geneva Conventions and instruments limiting munitions and conflict on the land, air, and sea.  The use of drones and autonomous weapons systems, guided by AI, are highlighted as a growing area of concern for international law.