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Exposing the Perversions of Toleration: The Decriminalization of Private Sexual Conduct, the Model Penal Code, and the Oxymoron of Liberal Toleration,” 45 University of Florida Law Review 755 (1993).


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Abstract: The Model Penal Code in the United States decriminalizing private “deviate sexual intercourse” and the Wolfenden Report, recommending the decriminalization of private homosexual conduct and prostitution in the United Kingdom, were supposed to help usher in a world of greater toleration. Instead, the rhetorical shield of toleration provided by the Model Penal Code has made it easier for the state to perpetuate its power to condemn, through the criminal law, conduct which does not suit the fancy of the dominant cultural group. The purpose of this essay is to explore this contradiction. I illuminate the extent of the perversity of the modern approach by relating The Parable of the Dusty House. My basic theme is that inherent in modern liberal notions of decriminalization of sexual non-conformist conduct is the understanding that society has given little and purchased a great deal. In return for removing the formal threat of severe criminal sanction for hidden and discrete acts (which society had rarely enforced in any case), dominant heterosexual society has obtained the quiescence of sexual non-conformists — their tacit agreement to hide themselves from view.

The parable is explored from the perspective of the dominant group in the first section that follows the parable, entitled — “Be Yourself. . . But Keep the Shades Drawn.” In the section that follows, “What We Preach,” I examine the state of regulation in light of the theories giving rise to the deregulation of private conduct. The parable is recast again in the section entitled “What We Practice,” in which I examine the flow of the common statutory reality — the manner in which private conduct has been “deregulated” but “public” conduct has been “reregulated.” The section which follows, “What We Really Preach,” presents one of the morals of the parable. Liberal toleration in America preaches decriminalization of hidden manifestations of conduct which deviates from the cultural ideal. But this toleration is fundamentally intolerant. It arises from a recognition of the practical inability to continue the suppression of the conduct and the political expediency of accommodating the nausea of dominant society. Liberal toleration closets tolerated sexual conduct, and permits dominant society the freedom to express its revulsion — and to manifest these expressions by resort to the law. I consider another moral of the parable in “An Ending But not a Conclusion.” Sexual non-conformity, and especially, sexual conduct between people of the same sex, falls far beyond the limits of traditional American sexual conduct norms, far enough to permit suppression. That it is no longer actively suppressed is a mark of the indecisiveness of the sexually dominant group in America as it weighs the acceptability of the types of sexual conduct practiced (now more openly) by sexual non-conformists of the same sex. But failure to suppress does not imply tolerance. That is the trap for those who place such importance on the elimination of the sodomy laws as a means to acceptance and toleration and in the liberality and “progress” of efforts like the Model Penal Code.


Raping Sodomy and Sodomizing Rape: A Morality Tale About the Transformation of Modern Sodomy Jurisprudence,” 21 American Journal of Criminal Law37 (1993).


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Abstract: Sodomy was once a simple matter in almost every state in the United States. Currently, sodomy jurisprudence is undergoing a substantial transformation. The purpose of the article is to better understand the changing realities of modern criminal sodomy as it abandons its role as the guardian of societal sexual taboos and adopts the form and assumptions of rape law. The analysis focuses closely on a single “typical-case” jurisdiction, Oklahoma, to facilitate a nuanced examination, for clarity of purpose and direction, and to more fully understand the nature of the transformation. Part I briefly describes the notion of sodomy in the criminal law, a crime required to serve as a catch-all proscription of violations of religious sexual conduct taboos. Part II begins the single jurisdiction focus, scrutinizing the Oklahoma judiciary’s nearly century long struggle to give content to classical sodomy. After tracing the genesis of the classical definition of sodomy, the author explores the manner in which the courts have transformed classical sodomy, perhaps out of existence, in the last quarter of the twentieth century. Part III analyzes the transformation of the underlying assumptions animating sodomy jurisprudence. Implementing a perceived mandate first to preserve morals and thereafter to prevent the spread of mentally diseased conduct, the courts at first substantially enlarged the breadth of classical sodomy. Thereafter, both courts and legislature increasingly concentrated on the coercive aspects of sexual conduct crimes, rejecting the blanket proscriptions of morality or the marginalizing language of mental disease as a basis for giving content to the crime of sodomy. Part IV applies the transformative notions underlying criminal sodomy to scrutinize the increasing emphasis on coercion which has begun to reshape sodomy into a crime resembling rape. The melding of these crimes has been sped along by recent legislation, and by the willingness of the courts to treat sodomy and rape as different forms of the same crime. Part V ends the article by offering an analysis of the century-long excursion into the regulation of this somewhat extraordinary set of human activity, and the lessons applicable to all jurisdictions which retain sodomy legislation.


Of Handouts and Worthless Promises: Understanding the Conceptual Limitations of American Systems of Poor Relief,” 34 Boston College Law Review997 (1993).


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Abstract: This essay delineates a paradigm of American poor relief, which I identify as the static paradigm, and examines the way in which the critical assumptions implicit in the static paradigm limit our ability to reform poor relief. The social context in which the problem of “poverty” and the “poor” arise are described in Part II. The parameters of the static paradigm are developed in Part III. I argue that society looks at poor relief through the lens of certain key assumptions (our paradigm) — that the social and economic status quo are immutable and unchallengeable, that income inequality must be preserved, and that the basic conditions giving rise to the need to aid the poor are not subject to successful manipulation. To give the paradigm some historical context, I critically examine two archetypal static systems — Canon Law poor relief and the Elizabethan Poor Law. From the paradigm and its archetypes, I derive a general theory of American Poor Relief, which provides the basis for the derivation, in Part IV, for specific theories respecting the limitations on conceptions of the reform of poor relief systems. I test the potential of the theories in Part V, by examining two contemporary “issues” of American poor relief. With the first I examine the basis of the “common wisdom” that welfare systems don’t work, and argue that the recently restated purposes of poor relief derive from a dynamic paradigm fundamentally incompatible with the static orientation of the poor relief systems in place. With the second, I offer a preliminary analysis of the recently proposed (but not enacted) “overhaul” of the California federal/state poor law system in light of the paradigm, and as evidence of the power of the theory to make sense of the nature of the poor relief “reform” process. Part VI presents a summary in the form of a commentary, exploring the “value” of static poor relief systems and the extent to which Americans seem attached to the static paradigm giving rise to such systems.


Civil Wars: Stays of Execution, Appellate Sanctions and the Nature of Consensus on the Utility of Appellate Review,” 29 Tulsa Law Journal65 (1993).


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Abstract: Civil appeals involve a balancing of the costs of appealing a determination (or defending the determination) of a lower court against the probability of reversal or affirmance at the appellate level. The Rules of appellate procedure affect the value of the variables which form a part of this calculation, and, in that manner, affect the substantive outcomes of litigation in a number of respects. This article examines two of these variables: suspensions of the effectiveness of judgments pending appeal and sanctions for frivolous appeals. Appeals postpone the finality of a lower court determination; suspensions of judgments postpone the effectiveness of judgments. Suspension of effectiveness and postponement of finality are inexorably tied together; each can be used to heighten the judgment-deadening effect of the other, or to preserve the status quo until errors below can be corrected. Both represent ways in which litigants and the courts distribute the costs of correcting erroneous determinations in a system where the litigants ideally control the scope and pace of the dispute and its resolution. Both, however, can be used to the advantage of litigants seeking to evade the obligations of judgment. The recent amendments to the civil appellate rules in Oklahoma respecting frivolous appeals and suspensions of the effectiveness of judgments pending appeal provide a useful framework for exploring the ramifications of procedural changes on substantive outcomes and the distribution of the power of process between plaintiffs, defendants and the courts.

This article explores these ramifications of the meaning of changes to civil appellate procedure from three perspectives. Although related, the analysis of each perspective can be read alone. The underlying issues and problems are set forth in the Introduction and in Part I.A., Supersedeas, Frivolousness and the Utility of Appeal. The first perspective, set forth at Part I.B. and C., focuses on the practical ramifications of change to appellate procedure. It discusses in detail the nature and effect of suspensions of the effectiveness of judgements and sanctions for frivolous appeals on judgments and the process of determining whether to appeal (or resist and appeal of) a judgment under prior law and current law.

The second perspective, set forth at Part II, Consensus, Complexity and House Bill 1468, explores on a more speculative level, the changes to civil appellate rules of supersedeas and sanction for frivolous appeal. It provides a contextual analysis of the direction and utility of changes to civil appellate practice rules and argues that changes do little more than create complexity and ambiguity which result in an increasing sense of unfairness which may affect substantive determinations.

The third perspective, set forth at Part III, Putting the Changes in Perspective, examines the manner in which civil appellate rules are modified in the context of the critical assumptions underlying American notions of the adversarial process of dispute resolution. These assumptions add unpredictability and arbitrariness to the appellate process, and limit the choices available to further the process of appeal.