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.

This chapter examines the Court’s “new approach and philosophy” in decisions upholding state power to regulate local economic activity against challenges based upon due process and the dormant commerce ckause.

This chapter explores a “regulatory commons” problem of jurisdictional mismatch and overlap in fragmented legal regimes that adversely impacts regulatory opportunities to address social ills at federal, state and local levels. Three Hawai‘i counties adopted ordinances addressing perceived environmental and health risks associated with genetically engineered (GE) seed crops. The ordinances relied on self-effectuating 1978 state constitutional amendments that established environmental rights and public trust responsibilities consistent with Native Hawaiian cultural values, which recognize rights and responsibilities in the management of natural resources for the benefit of present and future generations. Applying a critical contextual analysis, this chapter exposes how federal court decisions invalidating the ordinances based on implied state preemption ignored the Hawai‘i Constitution and case law. Notwithstanding significant gaps in both federal and state regulation of GE seed crops, the federal courts’ superficial analysis of supposedly “comprehensive, uniform and exclusive” statutory schemes is based on regulatory assumptions of “substantial equivalence” that are essentially appeals to ignorance. Decades-old federal policy choices assigning risks associated with scientific uncertainty to future generations will continue to tip the balance of interests in favor of industry unless appropriate corrective action is taken by Hawai‘i’s legislature, relevant administrative bodies, or the state judiciary.

focuses on the particular case of the United States and the development of national citizenship and state citizenship over time. Following the lead of other works in American history and American Political Development, the authors lay out three major periods in federated citizenship that follow significant developments in the US Constitution and federal law: the Framers’ period, stretching from the Articles of Confederation and the founding Constitution through the Civil War; the Reconstruction period’s establishment and subsequent collapse of national control ensuring the provision of those citizenship rights under Jim Crow; and the Civil Rights period, starting with the Twenty-Fourth Amendment and the Civil Rights Act of 1964, the Voting Rights Act of 1965, the Immigration and Nationality Act of 1965, and subsequent extensions and contractions in citizenship rights provided at the national and state levels along lines of race, gender, immigrant status, and sexual orientation.

draws attention to comparisons between California and other states in their provision of immigrant citizenship rights. The authors start with the border dividing California and Arizona, two states that lie on opposite ends of the spectrum with respect to progressive and regressive state citizenship, respectively. And yet, Arizona is not the only exclusionary state with respect to immigrant rights today. Indeed, the authors’ analysis reveals that Alabama is about as exclusionary as Arizona and that states like Georgia and Tennessee are close behind in their exclusionary laws on immigrant state citizenship. In this chapter, the authors situate various states along a continuum from the most inclusive to the most exclusionary with respect to each of five dimensions of citizenship rights. They also conduct a fifty-state quantitative analysis to identify the reasons why some states have proceeded farther than others in the development of progressive state citizenship.

Chapter 1 introduces The Law of the List and the ISIL and Al-Qaida listing regime, sets out the key research questions it addresses and highlights the relevant literatures that are engaged with. It introduces the three key analytical moves of this book – (i) studying global law as a legal assemblage, (ii) examining risk and preemption as practices of governmentality, and (iii) rethinking the problem of exceptional governance. The introductory chapter also positions this book as a methodological experiment in situated knowledge production. The author’s own role within the listing assemblage as a practising lawyer representing listed individuals is discussed. Drawing on Science and Technology Studies (STS) scholarship, it is argued that methods are performative. They enact and interfere with the worlds they describe and so are intensely political. Three distinct methodological moves of this book are also highlighted - studying the ISIL and Al-Qaida list as a multisited research object by focusing on local global ‘structure-making sites’; empirically examining the role of practices in global security law and governance; and using leaked documents to study global security law that would otherwise be secret. The chapter closes with a brief overview of the structure of the book.