The Michigan Law Review's Survey of Books Related to the Law provides an annual opportunity to consider not only a range of legal issues and views, but also to think about the range of ways we argue about and study the law. In this Foreword, I would like to suggest that we think not only about how we choose to argue, but also the potential consequences of those choices. When we study or argue about law and politics, we routinely and sensibly consider the possible unintended impact of particular substantive rules and policies. Here I suggest that we should attend as well to the potential indirect effects of our arguments themselves.

The periodization of history, like chocolate cake, can have some bad effects on us, but it is hard to resist. We realize, of course, that Julius Caesar didn't think of himself as "Classical" and Richard the Lion-Hearted didn't regard the time in which he lived as the Middle Ages. Placing historical figures in subsequently defined periods separates us from them and impairs our ability to understand them on their own terms. But it is difficult to understand anything about them at all if we try to envision history as continuous and undifferentiated. We need periodization to organize events that are numerous, remote and unfamiliar, and to create stable images of cultures that are dramatically different from our own. One of the greatest services that a historian can perform is to identify and define a particular time period so that we can grasp its distinctive features. Another great service is to apply critical scrutiny to that definition, to highlight and counteract the distortions that periodization inevitably creates.

Just as our mental topography of Western civilization is irretrievably shaped by its division into Classical Antiquity, the Early Middle Ages, the High Middle Ages, the Renaissance, the Reformation, and the Early Modern Era, so our mental topography of American legal history is shaped by its division into formalism, realism, legal process, and the modern period, the last of which consists of law and economics, critical legal studies, and law and society. Legal historians have done us a great service by grouping the work of judges and scholars into these readily comprehended periods and defining the mode of thought that characterizes each one. In his new book, Beyond the Formalist-Realist Divide, Brian Tamanaha does us a great service by revealing that this periodization rests on serious distortions. Specifically, he demonstrates that the formalists were not formalist, that they simply did not subscribe to the mode of thought that has long been regarded as their defining feature. He goes on show that the realists were not realists, or at least not nearly as realist as subsequent observers have depicted them.

What is law like? What can we compare it with in order to illuminate its character and suggest answers to some of the perennial questions of jurisprudence?

Natural lawyers compare laws to moral propositions. A human law is an attempt by someone who has responsibility for a human community to replicate, publicize, and enforce a proposition of objective morality such as "Killing is wrong." Law is like moral reasoning, say the natural lawyers, and laws should be regarded as principles of right reason (principles that reason dicatates as answers to the moral questions that need to be addressed in human society). However, in recent times legal philosophers have looked for illumination in the domain of social fact rather than in the realm of value. Law is like power, they have suggested, or like certain facts about the existence and exercise of power. So, for example, John Austin, writing in the first half of the nineteenth century, said that laws were like commands. A command is the expression of a wish coupled with the threat of a sanction, and a law expresses the wish of a sovereign along with a threat (for the event of noncompliance) that the sovereign's ascendancy in a society makes credible. Justice  Holmes offered a different comparison: a law, he said, is like a prediction of what courts will do in a certain event. The law prescribing fifty-five mph as the speed limit for the state of New York is a prediction that the courts will impose fines on those who are caught driving faster than that. So jurisprudence is like social science: it takes a series of predictions about what powerful people will do and it tests and organizes them.

It takes only a glance at the headlines every political season-with battles over issues ranging from abortion and abstinence-only education to same-sex marriage and single parenthood-to see that the culture wars have become a fixed feature of the American political landscape. The real puzzle is why these divides continue to resonate so powerfully. In Red Families v. Blue Families: Legal Polarization and the Creation of Culture, Naomi Cahn and June Carbone offer an ambitious addition to our understanding of this puzzle, illustrating pointedly why it is so hard to talk across the political divide. In a telling anecdote in the conclusion of their book, Cahn and Carbone recount how, upon hearing that the rate of nonmarital births had risen to 38 percent of all births in the United States, a conservative commentator attributed this shift to the growing acceptance of same-sex marriage. Cahn and Carbone relate their astonishment at this, given their certainty that the increase in nonmarital births was due to the prevalence of abstinence-only education, the inaccessibility of contraception and abortion, and the poor economy (pp. 206-07). They readily admit that they had no more evidence to back their conclusion than the conservative commentator. Instead, both sides resorted to strongly felt, though unproven, intuition. As Cahn and Carbone sum it up, "[s]uch is the nature of the culture wars" (p. 207).

Just over twenty years ago, the Kentucky Supreme Court declared the commonwealth's primary and secondary public education finance system-indeed, the entire system of primary and secondary public education in Kentucky-unconstitutional under the "common schools" clause of the education article in Kentucky's constitution. That case has been widely cited as having ushered in the "adequacy" movement in school finance litigation and reform, in which those challenging state school funding schemes argue that the state has failed to ensure that students are provided an adequate education guaranteed by their state constitutions. Since the Rose decision in Kentucky, some 33 school finance lawsuits have reached final decisions in 31 states. For plaintiffs, the campaign has been relatively successful in court, as school funding schemes in 22 states have been declared unconstitutional. Recently, however, a few courts seem to be taking a more cautious approach, either declining to become embroiled in school finance lawsuits or declaring the school finance systems constitutional and relinquishing jurisdiction. Yet the pace of litigation appears unabated. In light of the overall success of the adequacy movement in court, the wariness with which some courts have begun to approach the matter, and the continued press for school reform through the courts, it is fair to say that the adequacy finance litigation movement has matured and it is time to take stock of it. Two recent books-Eric Hanushek and Al Lindseth's Schoolhouses, Courthouses, Statehouses and Michael Rebell's Courts & Kids-do just that. And they reach very different conclusions (at least on the face of it).

Martha Nussbaum's latest book, From Disgust to Humanity: Sexual Orientation & Constitutional Law, could not have come at a more opportune time in the history of gay rights in the United States. All signs point to progress toward "humanity," from same-sex couples' successful bids for marriage equality in a handful of states to the public's increasing acceptance of the prospect of gays and lesbians serving openly in the military. Even if recent cognitive science research indicates that same-sex relationships provoke more than a little disgust in some people, landmark marriage equality victories in a few states suggest that the law is far less willing to tolerate that disgust as a valid basis for discriminatory and exclusionary legislation. And unlike its culture-war comrade, abortion, homosexuality has become less, not more, taboo over time. Whereas abortion is rarely, if at all, mentioned on television, homosexuality, as Nussbaum points out, is becoming a virtual regular on primetime (p. xviii). Indeed, if the (somewhat boringly) vanilla gay couple on ABC's Modern Family is any indication, homosexuality-or at least a very domesticated version of it-has begun to lose its taint.

Chief Justice John Roberts famously described the ideal Supreme Court Justice as analogous to a baseball umpire, who simply "applies" the rules, rather than making them. Roberts promised to "remember that it's my job to call balls and strikes and not to pitch or bat." At her own recent confirmation hearings, Elena Kagan demurred, opining that Roberts's metaphor might erroneously suggest that "everything is clear-cut, and that there's no judgment in the process." Based on his 2009 book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, Barry Friedman would likely reject the Chief Justice's analogy as well, but for a different reason. Friedman might describe Supreme Court Justices as umpires who call the balls and strikes, but whose future calls in constitutional law cases might be influenced by an angry crowd-leading them, for example, to reverse the call of a strike if the fans believed strongly enough that the pitch was low and outside.

Think of home. Go on. Maybe not your parents' home, which for this reviewer would be enough to induce heavy breathing and general anxiety. Rather, think about the concept of home. Think about the idea of home. Think about Home with a capital letter. Think of home as in The Wizard of Oz and Dorothy's famous "There's no place like home." Think "home sweet home." Or "home is where the heart is." Go on.

Of course, there may be other associations that come to mind when one thinks of home. There's security. Safety. Control. Home rule. After all, in the conventional telling, a man's home is his castle (of course, in the conventional telling, it is always "a man"). And in the conventional telling, the master of the house is alone sovereign. Blackstone said as much, as did Edward Coke. He is entitled to defend the home from intrusion, and may even use deadly force if necessary. He can call upon the police so that his home remains secure. This is home then. Never mind reality. This is the home we tend to imagine. Warm. Safe. Home.

Are class actions unconstitutional? Many people-defendants, conservative legislators, not to mention scholars at the American Enterprise Institute-would like them to be. For opponents of the class action, Martin Redish's book, Wholesale Justice, provides some of the most theoretically sophisticated arguments available. The book is a major contribution both to the scholarly literature on class actions and to the larger political debate about this powerful procedural device. The arguments it presents will surely be debated in courtrooms as well as classrooms.

For over a decade, Michael Carrier has been exploring the intersection of antitrust and intellectual property ("IP") law, contributing many articles that offer new solutions and approaches to the vexing problems confronting the law of innovation. Carrier's academic writing is situated in a voluminous scholarly discourse about the appropriate rules and goals of the laws of copyright, patent, and antitrust.

While Carrier easily could have written an "insider" tome for specialists in this area, his new book, Innovation for the 21st Century, is targeted at a broader audience. Carrier's book is directed at legislators, jurists, and opinion makers-as well as interested readers-who want to understand these questions and may play some part in legal reforms. It follows, given his broad audience, that Carrier faces some challenges describing the specialized fields of copyright, patent, and antitrust law. 

Law is dynamic, as law shapes behavior. Behavior also shapes law. Public choice can help us to understand this dynamic behavior. At its core, public choice is the use of economics to understand political science. Public choice thus addresses various opportunities for and constraints on behavior in public life in a manner akin to how economics does so in private life (the market). Public choice also assumes rational actors who maximize their utility. Since the 1960s, the use of public choice has had a profound impact in the academic study of law by both those inside and outside of law schools. Given the importance of policy to the law, it is rather odd that the study of public choice has not been a staple of the law school curriculum.

Students are likely to be introduced to public choice in classes that specialize in legislation. Yet, outside of administrative law and legislation, most statutory classes (commercial, corporations, environmental, and tax to name just a few) do not use public choice as a major explanatory tool for policy choices in a given area of law. In common law classes, public choice may often be overlooked altogether.

The next generation of government officials, business leaders, and members of civil society likely will draw from the current pool of law school students. These students often lack a foundation of the theoretical and analytical tools necessary to understand law's interplay with government. This highlights the importance of public choice analysis. By framing issues through a public choice lens, these students will learn the dynamics of effective decisionmaking within various institutional settings. Filling the void of how to explain the decision-making process of institutional actors in legal settings is Public Choice Concepts and Applications in Law by Maxwell Stearns and Todd Zywicki.

As late as 1988, Fourth Amendment scholars thought they knew all they needed to know about the amendment's history. After all, the right to be free from unreasonable search and seizure is a "made in America" privilege. Unlike other parts of the Bill of Rights, the protection against unreasonable search and seizure "provides us with a rich historical background rooted in American, as well as English, experience; it is the one procedural safeguard in the Constitution that grew directly out of the events which immediately preceded the revolutionary struggle with England." The history of search and seizure in Britain and America was neatly described in books by Nelson Lasson and Jacob Landynski. Through these books and related articles, scholars learned about the events and individuals that helped prompt the adoption of the Fourth Amendment.

Although this history was well-known to judges and scholars, in the second half of the twentieth century Fourth Amendment history rarely mattered to the Supreme Court. To be sure, there were disagreements, both on and off the Court, regarding the relevance of history. The results in cases, however, rarely depended on how the Court interpreted the amendment's history.

Our knowledge of the Fourth Amendment's history was fundamentally transformed when William Cuddihy completed his Ph.D. dissertation in 1990. Cuddihy's study was the most comprehensive and detailed examination of the history of search and seizure law and essential reading for anyone interested in the amendment's history. At first, Cuddihy's work was little known: only a few people noticed when the highly regarded constitutional historian Leonard W. Levy stated that "Cuddihy is the best authority on the origins of the Fourth Amendment." Cuddihy finished his dissertation in 1990 and it remained unedited, unpublished, and largely unknown for several years-until Justice O'Connor made it famous by citing the dissertation thirteen times in her Vernonia School District 47J v. Acton dissent. Since Acton, a reassessment of Fourth Amendment history has been undertaken by criminal procedure scholars, and a "portion of the credit or blame may be due William Cuddihy." Cuddihy's work has generated the attention scholars dream about-not only was he cited by the Court, his work apparently convinced Justice O'Connor to change "her position on a fundamental issue in constitutional law."

Alexandra Natapoff, in her outstanding new book, Snitching: Criminal Informants and the Erosion of American Justice makes a compelling case for reform of the system by which we regulate police use of criminal informants. Indeed, as other writers have discussed, law enforcement's overreliance on such informants has led to a "snitching culture" in which informant snitching replaces other forms of law enforcement investigation. Yet snitches, especially jailhouse snitches, are notoriously unreliable.

While reading this book in 2010, almost twenty years to the date after President George H.W. Bush signed the Americans with Disability Act ("ADA"), one realizes how much the world of politics has changed. It is difficult to remember a time when such major legislation passed the U.S. Senate by a vote of 91 to 6 and the House of Representatives by  377 to 28. Even more surprising, as we look back to 1990, is the fact that the executive branch was controlled by a different political party than the legislative branch. Contrast this legislative record with the milieu surrounding the health care reform legislation of 2010 and the economic stimulus bill of 2009, and the overwhelming bipartisan vote on the ADA seems quite remarkable.

This unique legislative history provides the context for Professor Bagenstos's new book, Law and the Contradictions of the Disability Rights Movement. In his book, Professor Bagenstos traces how the often-diverging strands of the disability rights movement coalesced to create change, and how the diversity of the movement is now inhibiting future change. In short, Bagenstos's book is about the contradictions and tensions within the disability rights movement and the law it forged. His analysis and conclusions are very insightful and appear to be drawn from both his numerous articles on the subject and his experience in the movement, including arguing several significant ADA cases before the Supreme Court. Indeed, while there are many aspects of Bagenstos's book that make it worth reading, his analysis of the movement's core contradiction, its history, and its ongoing impact are particularly helpful, even to those who have already had significant exposure to the ADA.

In early 2008, a Cambodian survivor confronted a Khmer Rouge leader for the first time at a U.N.-backed tribunal in Phnom Penh. Facing Pol Pot's infamous deputy, Nuon Chea, she recounted her parents' untimely deaths and her brutal imprisonment at age seven, when she was shackled beside her four-year-old brother. Nuon Chea has denied responsibility for these and other atrocities during the Khmer Rouge reign of terror in the late 1970s, but the victim asked plaintively, "If Nuon Chea claimed he was not responsible, who was then for the loss of my parents and other victims' loved ones?"

A corporation is not a contract. It is a state-created entity. It has legal personhood with the right to form contracts, suffer liability for torts, and (as the Supreme Court recently decided) make campaign contributions. However, many corporate law scholars have remained wedded to the conception-metaphor, model, paradigm, what have you-of the corporation as a contract or "nexus" of contracts. The nexus of contracts theory is meant to point up the voluntary, market-oriented nature of the firm and to dismiss the notion that the corporation owes anything to the state. It is also used as a justification for preserving the corporate law status quo. Since the corporation is contractual in nature, the argument goes, corporate structure reflects what the participants have freely chosen. The basic corporate structure-shareholders vote for the board of directors, who then appoint the officers-is seen not as the decision of state legislatures, but as the free choice of investors, directors, boards, and indeed all of those who are involved with the corporation. To question this structure is to dispute the market choices of those who are, presumably, in the best position to make these decisions.

Robert Williams's The Law of American State Constitutions is an impressive career accomplishment for one of the leading academic lawyers writing on state constitutions. Given the need for a good comprehensive treatise-like treatment of state constitutions that transcends individual jurisdictions, Williams's book will almost certainly become the go-to treatise for the next generation of state constitutional law practitioners and scholars. The U.S. Constitution has a grip on how the American legal mind approaches issues in American constitutionalism, but an important recurring theme in Williams's work (as well as that of others) is how state constitutions present unique interpretive challenges. More than any other legal academic, Williams has advanced the view-in this book and elsewhere-that the unique nature of state constitutions requires an appreciation of the text, legal community, and interpretive norms of the specific jurisdiction engaging in the interpretation.

The American Dream is a trope with global reach. Although the “city upon a hill” may have lost some of its luster in recent years, the idea that America is a country where citizens can rise above “the fortuitous circumstances of birth or positon” largely continues to resonate. Professor Ayelet Shachar’s provocative new book, however, suggests otherwise.

In The Birthright Lottery, Shachar condemns birthright citizenship laws as a feudal anachronism analogous to an inherited-property regime. For her, birthright citizenship in a prosperous nation confers a morally arbitrary windfall that determines life opportunities. Shachar further argues that in a world of material inequalities, the winners of the “birthright lottery” live large at the losers’ expense, often with deadly results.

Shachar’s arguments, if embraced, profoundly undermine both the feasibility and the desirability of the American Dream. If birthright citizenship is akin to entailed property, it is impossible to meaningfully exercise the agency embodied in the American Dream. And if birthright citizenship really is a zero-sum game, anybody living the American Dream is necessarily responsible for somebody else’s nightmare.

Martha Nussbaum describes Not For Profit: Why Democracy Needs the Humanities-her paean to a humanities-rich education-as a "manifesto, not an empirical study". Drawing on contemporary psychological research and classic pedagogical theories, Nussbaum convincingly argues that scholastic instruction in the humanities is a critical tool in shaping democratic citizens. Nussbaum shows how the study of subjects like literature, history, philosophy, and art helps students build essential democratic capacities like empathy and critical thought. Through myriad examples and anecdotes, Not For Profit sketches an appealing vision of what an ideal education should be in a democracy.