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Children are not strictly conservative, producing only what they have heard, and yet they are not reliably corrected when they produce overgeneralizations. How can children retreat from or avoid overgeneralizations? As many have noted, the most obvious possible explanations, including a reliance on overt corrections or corrective repetitions, are not viable. Two factors are argued to play a central role: statistical preemption or repeatedly witnessing a word in a competing pattern, and a pattern's degree of openness: the variability of the items that occur in a given pattern.

This chapter presents a constrained cost-benefit analysis of measures taken in the fight against terrorism. It begins by characterizing and criticizing existing normative economic analysis of the fight against terrorism as reflecting a simplified ad-hoc balancing. It then presents the central deontological constraints pertaining to the fight on terror. The chapter discusses threshold functions that should be employed in order to determine the permissibility of such measures as targeted killings and torture. It discusses the factors affecting the evaluation of the act's relevant net benefit, and those determining the amount of net benefit required to justify an infringement. It argues that standard economic analysis fails to take into account critical distinctions. These include the distinction between different goals of anti-terrorist measures; the difference between harms the state inflicts through antiterrorist measures, and those resulting from unthwarted terrorist attacks; and the distinction between intended and unintended harm. Deontologically-constrained CBA, which incorporates all of these distinctions, is shown to be methodically workable and normatively superior.

This chapter analyzes the various ways in which state constitutions are limited by the federal Constitution and federal law, which are the supreme law of the land. Provisions in state constitutions can violate not only the federal Constitution itself, but also federal statutory law, administrative regulations, federal common law, and even treaties and interstate compacts. In addition, enabling acts passed by Congress to facilitate the admission of new states can have continuing, limiting effect on states' constitutions to the extent that such federal provisions are based on ongoing congressional power (not just the power to admit new states). In some contexts federal law can preempt the provisions of state constitutions. All of these ways in which federal law limits the content of state constitutions are enforceable by the courts.

C can cause e even though e would still have occurred (thanks to another cause) in c's absence. The counterfactual theory of causation thus undergenerates. An alternative theory requires only that e counterfactually depends on c with certain things held fixed. The alternative theory overgenerates, since anything depends on anything modulo a suitably chosen condition. This chapter attempts to save the alternative theory by specifying what may legitimately be held fixed.

This concluding chapter analyzes the actual legal reasoning of the Plyler case, acknowledging its importance and efficacy, and notes that it would have been more efficacious and far reaching if Justice Brennan had decided it on the grounds of preemption, rather than employing the doctrine of equal protection. Had the case been determined on the theory of preemption, it would have been a useful counter to the rise of restrictionist and nativist ballot measures and state laws, on the grounds that only Congress can enact immigration laws. The political opening here has been used by those who oppose immigrant rights to craft measures that have been aimed at undocumented residents, unauthorized workers, and adult immigrants without legal status. The U.S. Supreme Court has overturned most of these provisions, but this has required substantial legal resources by MALDEF and other advocacy groups and purposive organizations, and some restrictionist measures remain in force. There is evidence that the undocumented and their advocates have seized the narrative high ground and defined the discourse, but no movement for comprehensive immigration reform has occurred at the federal level, a political impasse that remains unyielding to progress at the school, college, and state levels.

Recent U.S. Supreme Court holdings suggest that while the manufacturer of a brand-name drug is always responsible for its label’s content, this is not the case for generic drugs. In addition, these rulings have removed the protections and compensation that state tort law can provide consumers of generic drugs and exposed a gap in the regulation of generic drugs in which no manufacturer is responsible for updating the labeling. This Chapter argues that to remedy these issues, the Food and Drug Administration (FDA) should use negotiated rulemaking to work with drug manufacturers, consumer representatives, healthcare providers, and other interests to create new drug regulations.

Many of the tenets of the Bush Doctrine are derived from the Reagan administration's foreign policy positions. Similar to Reagan's stand on nuclear arms and strategic defense during the Cold War, President George W. Bush believes that preemption is a prudential strategy in responding to terrorist threats, depending on the dynamics and changing conditions of international politics. Those who criticize Bush for what they say is an arrogant and imprudent commitment to spreading democracy in the Middle East should note that this aspiration is consistent with the traditions of diplomacy that proved successful during World War II and the Cold War. The decision to remove Saddam Hussein from Iraq in 2003 was necessary, given Saddam's posturing and propensity to take enormous risks that rendered containment or imposing sanctions inadequate. Bush wisely recognized that negotiating with rogue regimes is futile and that democratic regime change is imperative in addressing the root cause of the conflict in the Middle East.

Studies have shown that most Americans pay little attention to international affairs and do so only when the issues begin to impinge on their lives. Because of this naturally occurring localism, many Americans form their opinions on foreign policy based on information they get from so-called pundits and from the stylized news provided by media. However, this “out of sight, out of mind” attitude gives Americans a false sense of security and makes them vulnerable to manipulation. A recent example of the consequences of both a population's information dependence and media compliance with official deception can be found in the selling of the disastrous Second Gulf War. By implanting a stereotyped picture of the threat supposedly posed by Iraq in the minds of the citizens, the Bush administration was able to gain acceptance of the defense doctrine, called preemption.

Chapter Four outlines the Rehnquist Court’s New Federalism embrace of dual federalism idealism, focusing on its Tenth Amendment and preemption cases. Beginning with reflections on the Court’s problematic quest for jurisprudential absolutes, the chapter compares the contemporary Tenth Amendment anti-commandeering cases to their predecessors. It then reviews dualist elements in other doctrinal areas of the New Federalism, including expanded state sovereign immunity under the Eleventh Amendment and limited federal power under the Commerce Clause and Section Five of the Fourteenth Amendment. Finally, the chapter explores how the Rehnquist Court’s federalism and preemption cases join to reify greater separation between idealized spheres of state and federal prerogative. It critiques the resulting model for failure to grapple with the values tug of war in contexts of jurisdictional overlap. Through the combined force of formal federalism doctrine and functional preemption decisions, the Rehnquist Court’s approach shifted the baseline from the uncritical overlap of cooperative federalism to a model emphasizing protected zones of exclusive state and federal power. The overarching implication is that the checks and balances of jurisdictional separation warrant protection at the expense of other values. The New Federalism decisions do not reestablish nineteenth century dualism, but they create theoretical tension with the cooperative federalism model that continues to predominate in federalism practice. They idealize the Tenth Amendment as the arbiter of an idealized, bright-line boundary between proper state and national jurisdiction, even at the interjurisdictional margin that belies such clarity.

Chapter Six offers a preliminary exploration of how Balanced Federalism theory would depart from the status quo, imagining the strongest judicial role within such a model. It sets forth the theoretical ideals, factors for consideration, and mechanics of how judicially-enforceable Balanced Federalism constraints could work in lieu of existing doctrine, focusing on the Tenth Amendment. It proposes replacing the bright-line anti-commandeering rule with a judicial standard for evaluating commandeering and even preemption claims. Where dual federalism asks the Tenth Amendment to police a boundary between mutually exclusive spheres of state and federal authority, Balanced Federalism asks the Tenth Amendment to patrol regulatory activity in the gray area between for impermissible compromises to federalism’s underlying values—checks, accountability, localism, and problem-solving. The chapter illustrates the balancing test through application to four concrete controversies: the regulation of stormwater pollution, climate governance, the Katrina response, and national health insurance reform. The chapter concludes with a defense of judicial balancing as a tool of constitutional interpretation in the federalism context. It rebuts the most powerful critiques of judicial balancing, including indeterminacy, judicial bias, and separation of powers. In a world with any judicial federalism constraints, explicit judicial balancing is preferable because values-balancing is inevitable—either covertly in application of a set doctrinal rule or through the initial act of balancing that produced the doctrinal rule. Nevertheless, legitimate concerns about expansive judicial discretion lay the foundation for later discussion of when the judiciary should defer to the federalism determinations of political actors.

This chapter examines the structure of law underlying U.S. public health practice by focusing on the statutory basis of the federal and state/local infrastructure of the U.S. public health system, including the creation of federal agencies having public health or related responsibilities and powers under the U.S. Constitution and, similarly, state and local agencies with public health roles, responsibilities, and powers. It describes the structure of law and the statutory basis of public health systems and practice in two main sections. The first of these sections examines the statutory basis of public health practice at the federal level. The second section explores this for state-level public health systems and practice. These sections also implicate certain key foundational legal concepts, including federalism and preemption, that are highly relevant to understanding the interplay between legislative enactments and public health practice at all levels.

This chapter attempts to explain a number of theory reforms. Certain reforms including the development of a negligence definition for design defect and the negligence test seem to favor the manufacturers, even though strict liability was initially invented to protect consumers. The concept of preemption causes limitation since regulations or statues may anticipate and replace the conflicting state law. The chapter also discusses how procedural issues are crucial in determining the outcomes of cases and how modifications in the law relate to evidence, witnesses, experts, and other important elements. This latter has the consequence of an increase in the costs of litigating products in liability cases.

This chapter explores the arguments that advocates of federal preemption rely upon to support their position in the preemption war. In addition to considering the obvious need to avoid direct conflicts between federal regulations and common law obligations, this chapter examines arguments based on the inefficiencies resulting from subjecting national markets to random after-the-fact changes in the rules in fifty different states, inefficiencies caused by uncertainty over the status of a product that has received government approval but is still subject to common law claims, reduced research incentives caused by the threat of expensive lawsuits, inefficiencies resulting from “overdeterrence,” and administrative inefficiencies suffered by federal agencies as a result of common law-inspired incentives.

This chapter addresses the most controversial contemporary invocation of “just cause” in the justification of war: the “preemptive defence” argument offered by President George W. Bush in support of the 2003 invasion of Iraq. After discussing the historical heritage of this justification, the chapter proceeds to draw a distinction between “pre-emptive” war, which is a response to an immediate anticipated threat, and “preventive war”, arguments for which purport to be a justification for the prevention of a supposed threat's very emergence. Demonstrating that the 2003 falls into the latter category, the chapter contends that “prevention” cannot constitute a just cause for war: it undermines the concepts and distinctions which underpin the stability of the international system and effectively erodes the distinction between war and peace. Preemption can be justified, but only under very specific applications of the relevant justificatory criteria.

Problems involving redundant causation have been at the center of the most interesting and vigorous debates over causal analysis. Redundancy highlights how difficult it can be to determine which events are the causes of an effect if we don’t know the underlying causal structure of the case. We discuss a wide range of redundant and related cases, with a special focus on preemption, both early and late, and on David Lewis’s attempts to handle causal preemption within a counterfactual analysis. We also discuss joint causation, symmetric overdetermination, and a range of cases that combine redundancy with other kinds of causal structure. Our aim is to develop the way that attention to certain features of redundancy highlights the ways in which we recognize and distinguish causal relations but also reveals deep tensions between our analyses of and intuitions about causation. We pay special attention to cases of redundant causation such as late preemption, for these structures inexorably constrain the form of any account that hopes to handle them, and thus present the most difficult problems for any reductive approach to the causal relation or any approach that admits black box cases.

These conflicts demonstrate that the record of urban guerrilla warfare in the twentieth century is one of complete and sometimes tragic defeat, and one that will likely persist into the twenty-first century. By deviating from the teachings of Clausewitz and Mao Tse-tung, urban guerrillas—even those enjoying mass support—expose themselves to certain structural impediments that make success highly improbable. Hence, it is important for the US to be cautious when committing its armed forces to urban battles because a determined, albeit badly armed, opponent could inflict serious casualties on even the most well-equipped and well-trained troops. If the US has determined that it has no other option but to engage in an urban counter-insurgency mission, the keys to its success will be isolation, intelligence, and political preemption. The lawful conduct of US counterinsurgency forces toward prisoners and civilians also will prove beneficial not only in intelligence gathering but in uplifting the morale and public perception of the military as well.

This chapter examines the enforceability of contractual restrictions on reverse engineering and considers the treatment of this issue in the context of the Uniform Computer Information Transactions Act (UCITA) in the U.S. It analyzes court decisions on court cases related to preemption and the enforceability of shrinkwrap licenses including Bowers v. Baystate Technologies and Davidson v. Jung. The analysis suggests that both the Constitution and the Copyright Act preempt enforcement of contractual restrictions on reverse engineering and that such terms in shrinkwrap licenses may not be enforceable under state contract law if users do not manifest their assent to the terms.