The Michigan Law Review publishes an Annual Survey of Books dedicated to book reviews. Book reviews are not included in any other issue of the Michigan Law Review. The Survey includes reviews of books published in the current year and the past two years. So, for example, the 2011 Survey, which will be published in April 2011, will include reviews of books published in 2011, 2010, and 2009.

The Book Review Office welcomes unsolicited submissions. Proposal guidelines can be downloaded here. Manuscripts and draft sections to accompany the proposal are appreciated. Please note that all Book Review proposals, drafts, and manuscripts must be submitted via email to michlrev.ed.br@umich.edu. Decisions for the upcoming year’s issue are generally made between March and May.

Please note that we [...]]]>

The Michigan Law Review publishes an Annual Survey of Books dedicated to book reviews. Book reviews are not included in any other issue of the Michigan Law Review. The Survey includes reviews of books published in the current year and the past two years. So, for example, the 2011 Survey, which will be published in April 2011, will include reviews of books published in 2011, 2010, and 2009.

The Book Review Office welcomes unsolicited submissions. Proposal guidelines can be downloaded here. Manuscripts and draft sections to accompany the proposal are appreciated. Please note that all Book Review proposals, drafts, and manuscripts must be submitted via email to michlrev.ed.br@umich.edu. Decisions for the upcoming year’s issue are generally made between March and May.

Please note that we require that finished drafts be no more than 8,500 words, including footnotes. We believe that this is the ideal length for an interesting and useful book review. It will also assist us in making our survey of the many fascinating and important books related to the law that have been published in the past few years as comprehensive as possible.

To request an expedited decision or to contact the Book Review Editors, please email michlrev.ed.br@umich.edu or call (734) 647‑4072.

Michigan Law Review, Issue 108:4 (January 2010)

(Past issues are available on our website.)

ARTICLES

Nelson Tebbe & Robert L. Tsai, Constitutional Borrowing, 108 Mich. L. Rev. 460 (2010)

Tun-Jen Chiang, Fixing Patent Boundaries, 108 Mich. L. Rev. 524 (2010)

NOTES

Kathryn Ladewski, Preserving a Racial Hierarchy: A Legal Analysis of the Disparate Racial Impact of Legacy Preferences in University Admissions, 108 Mich. L. Rev. 578 (2010)

Lance J. Phillips, The Implications of IFRS on the Functioning of the Securities Antifraud Regime in the United States, 108 Mich. L. Rev. 604 (2010)

Michigan Law Review, Issue 108:3 (December 2009)

(Past issues are available on our website.)

ARTICLES

David Gilo & Ehud Guttel, Negligence and Insufficient Activity: The Missing Paradigm in Torts, 108 Mich. L. Rev. 277 (2009)

James J. Park, Shareholder Compensation as Dividend, 108 Mich. L. Rev. 323 (2009)

Danielle Keats Citron, Essay: Law’s Expressive Value in Combating Cyber Gender Harassment, 108 Mich. L. Rev. 373 (2009)

NOTES

David C. Gorlin, Evaluating Punishment in Purgatory: The Need to Separate Pretrial Detainees’ Conditions-of-Confinement Claims from Inadequate Eighth Amendment Analysis, 108 Mich. L. Rev. 417 (2009)

Jacqueline Harrington, Commentary: “Once Victim, Always Victim”: Compensated Individuals Under the Amended Sentencing Guidelines on Fraud, 108 Mich. L. Rev. 445 (2009)

Michigan Law Review, Issue 108:2 (November 2009)

(Past issues are available on our website.)

ARTICLES

Adam Winkler, Free Speech Federalism, 108 Mich. L. Rev. 153 (2009)

Ariel Porat, Private Productions of Public Goods: Liability for Unrequested Benefits, 108 Mich. L. Rev. 189 (2009)

NOTES

Amie L. Medley, A Sea of Confusion: The Shipowner’s Limitation of Liability Act as an Independent Basis for Admiralty Jurisdiction, 108 Mich. L. Rev. 229 (2009)

Steven Serajeddini, Loss Causation and Class Certification, 108 Mich. L. Rev. 255 (2009)

Michigan Law Review, Issue 108:1 (October 2009)

(Past issues are available on our website.)

ARTICLES

A Benjamin Spencer, Understanding Pleading Doctrine, 108 Mich. L. Rev. 1 (2009)

Michael A. Carrier, Unsettling Drug Patent Settlements: A Framework for Presumptive Illegality, 108 Mich. L. Rev. 37 (2009)

NOTES

Nathan Somogie, Failure of a “Basic Assumption”: The Emerging Standard for Excuse Under MAE Provisions, 108 Mich. L. Rev. 81 (2009)

Eric A. White, Examining Presidential Power Through the Rubric of Equity 108 Mich. L. Rev. 113 (2009)

The Michigan Law Review has a new and greatly improved website.

First Impressions, the Review’s online companion, now accepts submissions of essays on timely legal topics.

To view the submission guidelines, go here. For questions and comments, please contact Dean Baxtresser, Executive Editor of First Impressions.

Michigan Law Review, Issue 107:8 (June 2009)

(Past issues are available on our website.)

FAULT IN CONTRACT LAW

FOREWORD

Omri Ben-Shahar & Ariel Porat, Fault in American Contract Law, 107 Mich. L. Rev. 1341 (2009)

ARTICLES

Richard A. Posner, Let Us Never Blame a Contract Breaker, 107 Mich. L. Rev. 1349 (2009)

Saul Levmore, Stipulated Damages, Super-Strict Liability, and Mitigation in Contract Law, 107 Mich. L. Rev. 1365 (2009)

Robert E. Scott, In (Partial) Defense of Strict Liability in Contract, 107 Mich. L. Rev. 1381 (2009)

Ariel Porat, A Comparative Fault Defense in Contract Law, 107 Mich. L. Rev. 1397 (2009)

Melvin Aron Eisenberg, The Role of Fault in Contract Law: Unconscionability, Unexpected Circumstances, Interpretation, Mistake, and Nonperformance, 107 Mich. L. Rev. 1413 (2009)

Eric [...]]]>

Michigan Law Review, Issue 107:8 (June 2009)

(Past issues are available on our website.)

FAULT IN CONTRACT LAW

FOREWORD

Omri Ben-Shahar & Ariel Porat, Fault in American Contract Law, 107 Mich. L. Rev. 1341 (2009)

ARTICLES

Richard A. Posner, Let Us Never Blame a Contract Breaker, 107 Mich. L. Rev. 1349 (2009)

Saul Levmore, Stipulated Damages, Super-Strict Liability, and Mitigation in Contract Law, 107 Mich. L. Rev. 1365 (2009)

Robert E. Scott, In (Partial) Defense of Strict Liability in Contract, 107 Mich. L. Rev. 1381 (2009)

Ariel Porat, A Comparative Fault Defense in Contract Law, 107 Mich. L. Rev. 1397 (2009)

Melvin Aron Eisenberg, The Role of Fault in Contract Law: Unconscionability, Unexpected Circumstances, Interpretation, Mistake, and Nonperformance, 107 Mich. L. Rev. 1413 (2009)

Eric A. Posner, Fault in Contract Law, 107 Mich. L. Rev. 1431 (2009)

George M. Cohen, The Fault That Lies Within Our Contract Law, 107 Mich. L. Rev. 1445 (2009)

Richard A. Epstein, The Many Faces of Fault in Contract Law: Or How to Do Economics Right, Without Really Trying, 107 Mich. L. Rev. 1461 (2009)

Oren Bar-Gill & Omri Ben-Shahar, An Information Theory of Willful Breach, 107 Mich. L. Rev. 1479 (2009)

Richard Craswell, When Is a Willful Breach “Willful”? The Link Between Definitions and Damages, 107 Mich. L. Rev. 1501 (2009)

Steve Thel & Peter Sigelman, Willfulness Versus Expectation: A Promisor-Based Defense of Willful Breach Doctrine, 107 Mich. L. Rev. 1517 (2009)

Roy Kreitner, Fault at the Contract-Tort Interface, 107 Mich. L. Rev. 1533 (2009)

Seana Shiffrin, Could Breach of Contract Be Immoral?, 107 Mich. L. Rev. 1551 (2009)

Steven Shavell, Why Breach of Contract May Not Be Immoral Given the Incompleteness of Contracts, 107 Mich. L. Rev. 1569 (2009)

Stefan Grundmann, The Fault Principle As the Chameleon of Contract Law: A Market Function Approach, 107 Mich. L. Rev. 1583 (2009)

Michigan Law Review, Issue 107:7 (May 2009)

(Past issues are available on our website.)

ARTICLES

Stephanie M. Stern, Residential Protectionism and the Legal Mythology of Home, 107 Mich. L. Rev. 1093 (2009)

Rachel E. Barkow, The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity, 107 Mich. L. Rev. 1145 (2009)

Paul F. Figley & Jay Tidmarsh, The Appropriations Power and Sovereign Immunity, 107 Mich. L. Rev. 1207 (2009)

NOTES

Eli Savit, Can Courts Repair the Crumbling Foundation of Good Citizenship? An Examination of Potential Legal Challenges to Social Studies Cutbacks in Public Schools, 107 Mich. L. Rev. 1269 (2009)

Anna Skiba-Crafts, Conditions on Taking the Initiative: The First Amendment Implications of Subject Matter Restrictions on Ballot Initiatives, 107 Mich. L. Rev. 1305 (2009)

The Michigan Law Review’s companion journal First Impressions has published an online symposium on Comparative Equality.

Around the world, there are various legal approaches to equality. For instance, France does not recognize minorities—its theory being that race and ethnicity should not be recognized, and everyone is simply French. However, racial clashes in France have made headlines in recent years. South Africa, on the other hand, built its constitution around a substantive concept of equality. Nations vary on the extent to which they promote social inclusion. Yet substantial equality issues remain. Across the world, differing concepts of equality in the law (i.e. substantive, formal / Aristotelian) may have similar or different outcomes. This symposium addresses how legal approaches to equality affect social justice.

The extended post contains a [...]]]>

The Michigan Law Review’s companion journal First Impressions has published an online symposium on Comparative Equality.

Around the world, there are various legal approaches to equality. For instance, France does not recognize minorities—its theory being that race and ethnicity should not be recognized, and everyone is simply French. However, racial clashes in France have made headlines in recent years. South Africa, on the other hand, built its constitution around a substantive concept of equality. Nations vary on the extent to which they promote social inclusion. Yet substantial equality issues remain. Across the world, differing concepts of equality in the law (i.e. substantive, formal / Aristotelian) may have similar or different outcomes. This symposium addresses how legal approaches to equality affect social justice.

The extended post contains a more complete description of the symposium and links to the essays.

• Karthy Govender of the University of Kwazulu-Natal (and a Commissioner with the South African Human Rights Commission) explains developing equality jurisprudence in South Africa and suggests that courts in that country are prepared to interpret their Constitution broadly in order to obtain substantive equality.

• Adrien K. Wing and Samuel P. Nielson of the University of Iowa College of Law look to international approaches toward substantive equality in order to make suggestions for the United States.

• Dr. Rory O’Connell of Queen’s University of Belfast argues that substantive equality is developing in the European Court of Human Rights.

• Daphne Barak-Erez of Tel Aviv University uses Israel as a case study to suggest that recognizing exceptions to equality is important to the debate on substantive equality.

• Barbara Havelkova of the University of Oxford, Exeter College compares the effect of competences on substantive equality in the United States and the European Union.

• Kathrina Szymborski of the University of Michigan Law School suggests that a substantive approach to equality must incorporate group rights in order to succeed.

To download a PDF of the entire symposium, please click here.

Additional First Impressions content is available at http://www.michiganlawreview.org.

Michigan Law Review, Issue 107:6 (April 2009)

(Past issues are available on our website.)

2009 Survey of Books Related to the Law

Foreword

Erwin Chemerinsky, Why Write?, 107 Mich. L. Rev. 881 (2009)

Classic Revisited

Rodney A. Smolla, Bradbury: Fahrenheit 451, 107 Mich. L. Rev. 895 (2009)

Reviews

Gene R. Nichol, Nussbaum: Liberty of Conscience: In Defense of America’s Tradition of Religious Equality, 107 Mich. L. Rev. 913 (2009)

Jonathan Weinberg, Spiro: Beyond Citizenship: American Identity After Globalization, 107 Mich. L. Rev. 931 (2009)

Orin S. Kerr, Slobogin: Privacy at Risk: The New Government Surveillance and the Fourth Amendment, 107 Mich. L. Rev. 951 (2009)

Edward K. Cheng, Ayres: Super Crunchers: Why Thinking-By-Numbers Is the New Way to Be Smart, 107 Mich. L. Rev. 967 (2009)

Antony Page, Greenfield: The Failure of Corporate Law: Fundamental Flaws and [...]]]>

Michigan Law Review, Issue 107:6 (April 2009)

(Past issues are available on our website.)

2009 Survey of Books Related to the Law

Foreword

Erwin Chemerinsky, Why Write?, 107 Mich. L. Rev. 881 (2009)

Classic Revisited

Rodney A. Smolla, Bradbury: Fahrenheit 451, 107 Mich. L. Rev. 895 (2009)

Reviews

Gene R. Nichol, Nussbaum: Liberty of Conscience: In Defense of America’s Tradition of Religious Equality, 107 Mich. L. Rev. 913 (2009)

Jonathan Weinberg, Spiro: Beyond Citizenship: American Identity After Globalization, 107 Mich. L. Rev. 931 (2009)

Orin S. Kerr, Slobogin: Privacy at Risk: The New Government Surveillance and the Fourth Amendment, 107 Mich. L. Rev. 951 (2009)

Edward K. Cheng, Ayres: Super Crunchers: Why Thinking-By-Numbers Is the New Way to Be Smart, 107 Mich. L. Rev. 967 (2009)

Antony Page, Greenfield: The Failure of Corporate Law: Fundamental Flaws and Progressive Possibilities, 107 Mich. L. Rev. 979 (2009)

Amy L. Wax, Polikoff: Beyond (Straight and Gay) Marriage: Valuing All Families under the Law, 107 Mich. L. Rev. 999 (2009)

Leonard M. Niehoff, Baker: Media Concentration and Democracy: Why Ownership Matters , 107 Mich. L. Rev. 1019 (2009)

Jeffrey L. Dunoff, McCrudden: Buying Social Justice: Equality, Government Procurement, and Legal Change, 107 Mich. L. Rev. 1039 (2009)

William Michael Treanor, Epstein: Supreme Neglect: How to Revive Constitutional Protection for Private Property, 107 Mich. L. Rev. 1059 (2009)

Anthony V. Alfieri, Sullivan, Colby, Welsh Wegner, Bond, & Shulman: Educating Lawyers: Preparation for the Profession of Law, 107 Mich. L. Rev. 1073 (2009)

Michigan Law Review, Issue 107:5 (March 2009)

(Past issues are available on our website.)

Articles

Aaron-Andrew P. Bruhl, The Supreme Court’s Controversial GVRs—And an Alternative, 107 Mich. L. Rev. 711 (2009)

Nestor M. Davidson, Property and Relative Status, 107 Mich. L. Rev. 757 (2009)

Notes

Katherine Mesenbring Field, Agency, Code, or Contract: Determining Employees’ Authorization Under the Computer Fraud and Abuse Act, 107 Mich. L. Rev. 819(2009)

Samuel Brenner, “Airbrushed Out of the Constitutional Cannon”: The Evolving Understanding of Giles v. Harris, 1903-1925, 107 Mich. L. Rev. 853(2009)

The Michigan Law Review’s companion journal First Impressions has published an online symposium on Liability for Exercising Personal Belief Exemptions from Vaccination.

Recent outbreaks of diseases such as measles, mumps, and pertussis, which have mostly been eradicated in the United States for decades, have called attention to the increased use of personal belief exemptions (sometimes called philosophical exemptions) to childhood vaccination requirements. Twenty states, including Michigan, allow personal belief exemptions, in addition to the medical exemptions allowed by every state. Since the 1990s, parents have increasingly used these personal belief exemptions, often related to an unproven belief that vaccines are linked to autism and other disorders. An outbreak of the disease can sicken not only children who are unvaccinated, but also children who have received the [...]]]>

The Michigan Law Review’s companion journal First Impressions has published an online symposium on Liability for Exercising Personal Belief Exemptions from Vaccination.

Recent outbreaks of diseases such as measles, mumps, and pertussis, which have mostly been eradicated in the United States for decades, have called attention to the increased use of personal belief exemptions (sometimes called philosophical exemptions) to childhood vaccination requirements. Twenty states, including Michigan, allow personal belief exemptions, in addition to the medical exemptions allowed by every state. Since the 1990s, parents have increasingly used these personal belief exemptions, often related to an unproven belief that vaccines are linked to autism and other disorders. An outbreak of the disease can sicken not only children who are unvaccinated, but also children who have received the vaccine. While in the past, unvaccinated children were more likely to be low-income, increasingly more are higher-income and their parents well-educated. With the increased risk that the use of personal belief exemptions will limit the effectiveness of vaccination, this symposium addresses whether parents who refuse to vaccinate their children should be liable in tort to individuals who are infected and injured by the unvaccinated children.

The extended post contains a more complete description of the symposium and links to the essays.

• Douglas S. Diekema of the Seattle Children’s Hospital applies his medical expertise to the question of tort liability for personal belief exemptions and explains how such exemptions might fit the elements of negligence in tort law.

• Pediatrician Jay Gordon privileges parental choice over concerns about the possible harms from the use of vaccine personal belief exemptions, arguing against holding parents liable for the use of the exemptions.

• Jason L. Schwartz of the University of Pennsylvania Center for Bioethics warns that the use of tort liability to combat the overuse of personal belief exemptions may undermine efforts to promote vaccination by hardening opposition to childhood vaccination and by exacerbating misplaced alarm about such vaccinations.

• Alexandra Stewart of the School of Public Health and Health Services at the George Washington University Medical Center proposes that public nuisance law might be an effective and appropriate remedy to address harms caused by parental use of personal belief exemptions.

• Stephen P. Teret and Jon S. Vernick of the Johns Hopkins Bloomberg School of Public Health claim that the deterrent effect of tort liability makes it an advisable solution to the foreseeable and preventable harms that the use of personal belief exemptions can cause.

• Daniel B. Rubin and Sophie Kasimow of the University of Michigan Law School identify a possible problem with the use of individual tort liability to address the harms caused by personal belief exemptions—that imposing such liability might undermine the sense of collective well-being necessary to maintain sufficient childhood vaccination rates.

To download a PDF of the entire symposium, feel free to click here.

Additional First Impressions content is available at http://www.michiganlawreview.org.

Michigan Law Review, Issue 107:4 (February 2009)

(Past issues are available on our website.)

Articles

Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561 (2009)

Elizabeth Warren & Jay Lawrence Westbrook, The Success of Chapter 11: A Challenge to the Critics, 107 Mich. L. Rev. 603 (2009)

Notes

Daniel P. Rathbun, Irrelevant Oversight: “Presidential Administration” from the Standpoint of Arbitrary and Capricious Review, 107 Mich. L. Rev. 643 (2009)

Elizabeth M. Ryan, Causation or Correlation? The Impact of LULAC v. Clements on Section 2 Lawsuits in the Fifth Circuit, 107 Mich. L. Rev. 675 (2009)

Michigan Law Review, Issue 107:3 (December 2008)

(Past issues are available on our website.)

Articles

Stephen Gardbaum, The Myth and the Reality of American Constitutional Exceptionalism, 107 Mich. L. Rev. 391 (2008)

Ehud Guttel & Alon Harel, Uncertainty Revisited: Legal Prediction and Legal Postdiction, 107 Mich. L. Rev. 467 (2008)

Notes

Steven T. Collis, A Narrow Path to Diversity: The Constitutionality of Rezoning Plans and Strategic Site Selection of Schools After Parents Involved, 107 Mich. L. Rev. 501 (2008)

Jacob S. Sherkow, A Call for the End of the Doctrine of Realignment, 107 Mich. L. Rev. 525 (2008)

Michigan Law Review, Issue 107:2 (November 2008)

(Past issues are available on our website.)

Articles

Richard A. Primus, When Should Original Meanings Matter?, 107 Mich. L. Rev. 165 (2008)

David L. Schwartz, Practice Makes Perfect? An Empirical

Study of Claim Construction Reversal Rates in Patent Cases, 107 Mich. L. Rev. 223 (2008)

Essay

Gideon Parchomovsky & Alex Stein, Torts and Innovation, 107 Mich. L. Rev. 285 (2008)

Notes

David C. Weiss, Nothing Improper? Examining Constitutional Limits, Congressional Action, Partisan Motivation, and Pretextual Justification in the U.S. Attorney Removals, 107 Mich. L. Rev. 317 (2008)

Andrea Y. Loh, Are Artificial Tans the New Cigarette? How Plaintiffs Can Use the Lessons of Tobacco Litigation in Bringing Claims Against the Indoor Tanning Industry, 107 Mich. L. Rev. 365 (2008)

The Michigan Law Review’s companion journal First Impressions this week published an online symposium on The Environmental Agenda for the Next Administration.

The new President in 2009 will follow an administration which has not been seen as proactive in developing environmental policy to address issues of climate change, alternative energy, and sustainability. Environmental organizations, legal and policy academics, and industry officials are beginning to debate the necessary focus of that next administration as it endeavors to develop sustainable environmental policies. As the nation’s major environmental laws were enacted three decades ago, when the country faced very different environmental problems, this symposium proposes a fresh legal and policy approach to climate change, alternative energy, and sustainability for the next presidential administration to follow.

The extended post contains a [...]]]>

The Michigan Law Review’s companion journal First Impressions this week published an online symposium on The Environmental Agenda for the Next Administration.

The new President in 2009 will follow an administration which has not been seen as proactive in developing environmental policy to address issues of climate change, alternative energy, and sustainability. Environmental organizations, legal and policy academics, and industry officials are beginning to debate the necessary focus of that next administration as it endeavors to develop sustainable environmental policies. As the nation’s major environmental laws were enacted three decades ago, when the country faced very different environmental problems, this symposium proposes a fresh legal and policy approach to climate change, alternative energy, and sustainability for the next presidential administration to follow.

The extended post contains a more complete description of the symposium and links to the essays.

• Lisa Heinzerling of the Georgetown University Law Center (and lead author the Massachusetts v. EPA brief) suggests several steps that the next administration can take within existing statutory frameworks, since many of the previous administration’s actions and omissions can be remedied by executive action alone.

• Ann E. Carlson of the UCLA School of Law believes that the next administration should allow exemplar states to take a leadership role in setting emissions standards for appliances, in light of ineffective federal efforts in this area.

• Thomas P. Lyon of the Ross School of Business and the School of Natural Resources and Environment at the University of Michigan recommends that the next administration should create a partnership between the United States and China to develop technology for carbon capture and sequestration.

• Jonathan Z. Cannon of the University of Virginia proposes that the next administration order federal agencies to adopt sustainable practices related to resource management, and also create an interagency Sustainable Watersheds Task Force to coordinate efforts among federal agencies and state and local governments to promote watershed protection.

• Amie Medley of the University of Michigan Law School argues that the next administration should facilitate local, citizen-driven efforts: individuals taking action in their homes and communities in order to decrease the unsustainable demand for natural resources.

• Joshua Van der Ploeg of the University of Michigan Law School suggests that the next administration work to promote a new international framework for regulating greenhouse gases that will balance the needs of developed and developing nations, and should adopt domestic policies that will further that effort.

To download a PDF of the entire symposium, feel free to click here.

Additional First Impressions content is available at http://www.michiganlawreview.org.

Michigan Law Review, Issue 107:1 (October 2008)

(Past issues are available on our website.)

Articles

James E. Pfander, Judicial Compensation and the Definition of Judicial Power in the Early Republic, 107 Mich. L. Rev. 1 (2008)

Matthew C. Stephenson, Optimal Political Control of the Bureaucracy, 107 Mich. L. Rev. 53 (2008)

Notes

Colin P. Watson, Limiting a Constitutional Tort Without Probable Cause: First Amendment Retaliatory Arrest After Hartman, 107 Mich. L. Rev. 111 (2008)

Benedict J. Schweigert, “Now For a Clean Sweep!”: Smiley v. Holm, Partisan Gerrymandering, and At-Large Congressional Elections, 107 Mich. L. Rev. 133 (2008)

The Michigan Law Review’s companion journal First Impressions this week published an online symposium on Senator John McCain and Natural Born Citizenship.

Senator John McCain, the current Republican Party nominee for President, was born in the Panama Canal Zone in 1936. The circumstances of his birth raise the question of whether he is a “natural born citizen” as required by Article II, section 1 of the Constitution. The symposium contributors explore both the substance of this issue and the methods used to resolve it.

The extended post contains a more complete description of the symposium and links to the essays.

• Gabriel J. Chin of the University of Arizona argues that the citizenship statute in effect in 1936 did not grant Senator McCain citizenship at birth. A person [...]]]>

The Michigan Law Review’s companion journal First Impressions this week published an online symposium on Senator John McCain and Natural Born Citizenship.

Senator John McCain, the current Republican Party nominee for President, was born in the Panama Canal Zone in 1936. The circumstances of his birth raise the question of whether he is a “natural born citizen” as required by Article II, section 1 of the Constitution. The symposium contributors explore both the substance of this issue and the methods used to resolve it.

The extended post contains a more complete description of the symposium and links to the essays.

• Gabriel J. Chin of the University of Arizona argues that the citizenship statute in effect in 1936 did not grant Senator McCain citizenship at birth. A person must be a citizen at birth to be a natural born citizen. Because he was not born a citizen, he is not eligible to the office of president.

• Lawrence B. Solum of the University of Illinois Law School discusses how New Originalists would focus on the original public meaning of the term “natural born citizen.” He notes that the notion of a “natural born citizen” was likely a term of art derived from the idea of a “natural born subject” in English law—a category that most likely did not extend to persons, like Senator McCain, who were born outside sovereign territory. But the Constitution speaks of “citizens” and not “subjects,” introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.

• Daniel P. Tokaji of The Ohio State University Moritz College of Law suggests that lower federal courts will not reach the merits of suits about Senator McCain’s eligibility because of standing requirements and the political question doctrine. These justiciability constraints dictate that the question of Senator McCain’s eligibility would be more aptly resolved in state court or by Congress.

• Peter J. Spiro of the Temple University Beasley School of Law claims that non-judicial actors—including Congress, editorialists, leading members of the bar, and the People themselves—have settled the question of Senator John McCain’s eligibility. The emergence of this sort of popular consensus is an acceptable method of constitutional determination.

• Yale Law School alumnus Stephen E. Sachs argues that Senator John McCain did not fall into a loophole in the governing citizenship statute. That statute made citizens of certain children “born out of the limits and jurisdiction of the United States.” The best historical evidence indicates that this phrase should be interpreted such that Senator John McCain would have been a citizen at birth.

To download a PDF of the entire symposium, feel free to click here.

Additional First Impressions content is available at http://www.michiganlawreview.org.

Michigan Law Review, Issue 106:7 (May 2008)

(Past issues are available on our website.)

Articles

Mitchell A. Kane & Edward B. Rock, Corporate Taxation and International Charter Competition, 106 Mich. L. Rev. 1229(2008)

Stewart W. Sterk, Property Rules, Liability Rules, and Uncertainty about Property Rights, 106 Mich. L. Rev. 1285(2008)

John Greenman, On Communication, 106 Mich. L. Rev. 1337(2008)

Notes

Susanna G. Dyer, Is There a Duty?: Limiting College and University Liability for Student Suicide, 106 Mich. L. Rev. 1379(2008)

Michael R. Cedillos, Categorizing Categories: Property of the Estate and Fraudulent Transfers in Bankruptcy, 106 Mich. L. Rev. 1405(2008)

Jeffrey T.G. Kelsey, Hacking into International Humanitarian Law: The Principles of Distinction and Neutrality in the Age of Cyber Warfare , 106 Mich. L. Rev. 1427(2008)