April 2011 Vol. 109 No. 6 THE REVIEW
ARTICLES

Foreword: What We Make Matter

Sherman J. Clark

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.

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The Real Formalists, The Realists, and What They Tell Us About Judicial Decision Making and Legal Education

Edward Rubin
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Planning for Legality

Jeremy Waldron
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Purple Haze

Clare Huntington
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Courthouses vs. Statehouses?

William S. Koski
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Disgust and the Problematic Politics of Similarity

Courtney Megan Cahill
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But How Will the People Know? Public Opinion as a Meager Influence in Shaping Contemporary Supreme Court Decision Making

Tom Goldstein & Amy Howe
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Home is Where the Crime Is

Bennett Capers
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Are Class Actions Unconstitutional

Alexandra D. Lahav
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Innovative Copyright

Greg Lastowka
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Explaining the Importance of Public Choice for Law

D. Daniel Sokol
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Framing the Fourth

Tracey Maclin & Julia Mirabella
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Prosecuting the Informant Culture

Andrew E. Taslitz
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Whither the Disability Rights Movement?

Robert W. Pratt
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Liberal Legal Norms Meet Collective Criminality

John D. Ciorciari
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The Uncorporation and the Unraveling of "Nexus of Contracts" Theory

Grant M. Hayden & Matthew T. Bodie
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Assessing the State of State Constitutionalism

Jim Rossi
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NOTES

The Citizenship Shibboleth: Is The American Dream Everyone Else's Nightmare?

Emily Marr

 

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.

 

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Profiting from Not For Profit: Toward Adequate Humanities Instruction in American K-12 Schools

Eli Savit
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& Other Current Events

Crawford v. Washington: A Ten Year Retrospective

No one disputes the significance of Crawford v. Washington, 541 U.S. 36 (2004), which fundamentally transformed Confrontation...

Come Back to the Boat, Justice Breyer!

I want to get Justice Breyer back on the right side of Confrontation Clause issues. In 1999, in Lilly...

Crawford v. Washington: The Next Ten Years

Imagine a world . . . in which the Supreme Court got it right the first time. That is,...

The Crawford Debacle

First a toast-to my colleague Jeff Fisher and his Crawford compatriot, Richard Friedman, on the...

Confrontation and the Re-Privatization of Domestic Violence

When the Supreme Court transformed the right of confrontation in Crawford v. Washington, the prosecution...
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