ROSE CUISON VILLAZOR, Southern Methodist University - Dedman School of Law
Email: rvillazo@smu.edu

Modern equal protection doctrine treats laws that make distinctions on the basis of indigeneity defined on blood quantum terms along a racial versus political paradigm. This dichotomy may be traced to Morton v. Mancari and, more recently, to Rice v. Cayetano. In Mancari, the Supreme Court held that laws that privilege members of American Indian tribes do not constitute racial discrimination because the preferences have a political purpose - to further the right of self-government of federally recognized American Indian tribes. Rice crystallized the juxtaposition of the racial from the political nature of indigeneity by invalidating a law that privileged Native Hawaiians. That law, according to the Court, used an ancestral blood requirement to construct a racial category and a racial purpose as opposed to the legally permissible political purpose of promoting the right of self-government of American Indian tribes.

Close analysis of the dichotomy between the constitutive notion of indigenous blood as either racial or political has largely escaped scholarship. An analysis deconstructing their juxtaposition is sorely needed. As recent challenges to blood quantum laws show, there remain unanswered questions about the extent to which the racialized (and thus invalid) Native Hawaiian-only voting law impact other blood quantum laws. Among the laws implicated by the dichotomy between the racial and political meaning of indigeneity are land ownership laws that privilege indigenous peoples who are not federally recognized tribes. Specifically, in some jurisdictions in the United States, including Hawaii, Alaska, and the U.S. territories, only indigenous peoples may purchase or possess property. Perhaps more problematically, these property laws define indigeneity on the basis of blood quantum. Under the contemporary race versus political meaning of blood quantum, these laws arguably violate equal protection principles because they do not fit the current framing of what constitutes political indigeneity.

Using these laws, what I collectively refer to as blood quantum land laws, as frames of reference, this Essay interrogates and criticizes the juxtaposition of the racial and political meaning of indigeneity. Specifically, the Essay examines the legal construction of political indigeneity and demonstrates how its narrowed construction would undermine these blood quantum land laws that were enacted to reverse the effects of colonialism. Consequently, this Essay calls for the liberalization of the binary racial and political paradigm by expanding equal protection law's interpretation of the meaning of political indigeneity. Toward this end, this Essay provides an initial analysis of how to broaden the political notion of indigeneity, focusing in particular on the relationships among property, indigeneity, and the right to self-determination.

WILLIAM E. FORBATH, University of Texas at Austin - School of Law
Email: wforbath@mail.law.utexas.edu

Welfare is dead; but social rights are coming back. The 2008 election has brought the right to health care, to decent education, even to decently paid work back into circulation. What forms might a rekindled social citizenship take under a Democratic administration? What are its promises and perils? And for those concerned about the perils of exclusion for poor people of color, what might be done to push an Obama administration toward more pro-poor policies? What might a poor people's movement look like in the 2010s; and what can we learn from the strategies, insights and blind spots, the achievements and shortcomings of the Welfare Rights Movement of the 1960s? This review essay offers a few reflections.

SUZANNA SHERRY, Vanderbilt University Law School
Email: Suzanna.Sherry@law.vanderbilt.edu
DANIEL A. FARBER, University of California, Berkeley - School of Law
Email: dfarber@law.berkeley.edu

Judgment Calls addresses the problem of judicial discretion in constitutional law. Many political scientists and some prominent legal scholars suggest that constitutional adjudication is just politics in disguise. Others propose the use of methodologies like textualism or originalism to constrain what they view as an alarming degree of judicial discretion in interpretation. At bottom, both sorts of thinkers believe that judging has to be either tightly constrained and inflexible or purely political and unfettered: There is, they argue, no middle ground.

We disagree. In this book, we argue that judging can be - and often is - both principled and flexible. In other words, we attempt to reconcile the democratic rule of law with the recognition that judges have discretion. We explain how judicial discretion can be exercised responsibly, describe the existing constraints that guide and cabin such discretion, and suggest improvements.

In exploring how constitutional adjudication works in practice (and how it can be made better), the book covers a wide range of topics including judicial opinion-writing, the use of precedent, the judicial selection process, the structure of the American judiciary, and the nature of legal education. The book concludes with a careful look at how the Supreme Court has treated three of the most significant and sensitive constitutional issues: terrorism, abortion, and affirmative action.

CLAIRE A. HILL, University of Minnesota, Twin Cities - School of Law
Email: hillx445@umn.edu

Economists typically assume that preferences are fixed-that people know what they like and how much they like it relative to all other things, and that this rank-ordering is stable over time. But this assumption has never been accepted by any other discipline. Economists are increasingly having difficulty arguing that the assumption is true enough to generate useful predictions and explanations. Indeed, law and economics scholars increasingly acknowledge that preferences are constructed, and that the law itself can help construct preferences. Still, fixed preferences are often treated as a normative ideal: Even if people don't have fixed preferences, they should. Behavioral law and economics scholars offer approaches to deal with this normative shortcoming.

My article argues that preference construction, properly understood, is not normatively undesirable. Having fixed preferences means having a complete and stable rank ordering of what we want that dictates our choices. But we often do not have such an ordering, and rationally so. My article argues instead for an alternative process-based, account of preference construction. Rather than having a complete rank ordering, we have ways of making choices. We construct narratives, using evaluative criteria against a backdrop of wants, desires and inclinations, some of which we rank order and some of which we do not. The evaluative criteria embed a consideration of transaction costs: critically, where a decision is not very consequential, a formulaic decision rule that permits a ready choice among roughly comparable alternatives may serve our purposes better than a more considered alternative-by-alternative assessment. Our wants, desires and inclinations are for both traditional objects of choice and higher order values and desires; they are both previously constructed and constructed and elicited in the choice-making process. My article makes the case for such an account's potential explanatory power, as well as its tractability.

CHRISTOPHER W. SCHMIDT, affiliation not provided to SSRN
Email: cschmidt@abfn.org

This article revises the traditional account of why the Supreme Court, when faced in the early 1960s with a series of cases arising out of the lunch counter sit-in movement, refused to hold racial discrimination in public accommodations unconstitutional. These cases are the great aberration of the Warren Court. At a time when the justices confidently reworked one constitutional doctrine after another, often in response to the moral challenges of the civil rights movement and often in the face of considerable public resistance, they broke pattern in the sit-in cases. And they did so despite a transformation in popular opinion in support of non-discriminatory access to public accommodations-a transformation largely brought about by the sit-in protests, which initiated a far-reaching national reconsideration of the scope of the constitutional equal protection guarantee.

Traditional explanations have emphasized the doctrinal complexities of the "state action" limitation on the Fourteenth Amendment and institutional limitations of the judiciary in dealing with the problem of private discrimination. While these factors played a role, I argue that a key reason the sit-in cases failed to fundamentally reshape the reach of the constitutional antidiscrimination requirement was the Supreme Court's refusal to tolerate civil disobedience. In the early sit-in cases, the justices avoided the crux of the state action dilemma, instead attacking southern resistance to Brown v. Board of Education and overturning protesters' convictions based on the existence of official state segregation policy. By 1964, when the Court confronted a case in which there was no state segregation policy to strike down, the increasingly confrontational tactics of the civil rights movement led several justices to become antagonistic toward efforts to challenge laws and practices, however unjust, outside the judicial process. Now it was the disobedience of the civil rights protesters that prevented a majority from supporting the protesters' constitutional claim. In the end, concerns with protecting the rule of law in the face of a society that seemed pulled in increasingly lawless directions prevented a doctrinal revolution.

PHILOMILA TSOUKALA, affiliation not provided to SSRN
Email: pt96@law.georgetown.edu

This paper revisits the creation of the modern Greek state in the early nineteenth century and the role that family law played in the process of generating a sense of national identity. According to the mainstream legal historical narrative Greeks managed to survive as a nation during the Ottoman years thanks to the consistent application of family law rules by the Orthodox Church. This paper reinterprets the standard narrative as the result of the institutional compromises struck between the Orthodox Church, westernizing revolutionary Greeks and local leaders at the moment of creation of the Greek state, rather than a reflection of the legal realities on the ground. It argues that competition between the Orthodox Church, Islamic judges, and local secular leaders on precisely the issues that the Church considered under its exclusive jurisdiction (marriage, divorce, inheritance) had resulted in a highly fragmented legal picture right before the creation of the Greek state. Despite this fragmentation, the first regent for judicial affairs of the nascent state, Bavarian Georg Ludwig von Maurer, argued in his seminal book "The Greek People" that Greek Orthodox canon law had been applied consistently throughout the territories of the Greek state and that the Greeks has survived as a nation partly thanks to the efforts of the Church which saved the Greeks from "barbarism". The institutional compromise he then fashioned for Church/State relations rewarded the former, by making it an important institutional player on marriage and divorce in the new state.

The last part of the paper discusses the importance of revisiting the history of the state's role in generating narratives of national identity for European politics, at a moment when the distribution of resources between European citizens and non European, often Muslim, non citizens living and working in Europe is increasingly justified or tacitly accepted through appeals to notions of concrete, coherent national identities. The dynamics of relying on a named or unnamed uncivilized "other" against whom identity formation takes place seems to be repeating itself today with a vengeance in the case of Turkey's accession to the European Union, and the thinly veiled civilization vs. barbarism discursive themes emerging there. Not accidentally, they are heavily concentrated in the field of family law. Without suggesting that revisiting history will solve current political problems by deductive magic it can at least help push against the more essentialist, "clash of civilization" versions of identity that have remade their appearance in political discussions in Europe.