“Inventing a ‘Homosexual’ for Constitutional Theory: Sodomy Narrative and Antipathy in U.S. and British Courts”, 71 Tulane Law Review 529-596 (1996).
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Abstract: This Article explores the way in which recurring fact patterns drives jurisprudence, especially the jurisprudence of sexual conduct regulation. It explores the ways in which state high courts have fused the hundreds of reported cases in which they were presented with constitutional challenges to sodomy laws in the U.S. and the ways in which English courts did the same in the cases in which they were presented with issues of the interpretation of the Sexual Offenses Act into a unified vision of what it meant to be a gay man, and then applied these visions to resist challenges to a severe regulation of (homo)sexual conduct. Part II considers the relevance of narrative and image to law. It suggests that lawmaking (jurisprudence) is driven by the creation of meta-narratives about the objects of the courts’ attention (gay men). Part II begins the examination of the meta-narrative itself, and the effectiveness of this narrative to drive sodomy jurisprudence in the United States and Britain. It concludes with an examination of the four “stock” characters that emerge as sodomy’s meta-narrative: the predator (studies in the coercive sexual nonconformity of rape and physical power), the pied piper (studies in pedophilia, seduction and the recruitment of youth), the Whore of Babylon (the embodiment of promiscuity, addiction and contagion) and the defiler of the public space (the imperialism of public expressions of sexual non-conformity). Part IV situates constitutional cases like Bowers v. Hardwick and R. v. Brown within this tradition of narrative antipathy. Bowers provides an excellent case study of the way in which the narrative antipathy of sodomy jurisprudence blinds courts to even the “best” set of facts. Brown demonstrates the power of narrative to confirm the deviance of gay men and refuse them the solicitude of the law to private sexual conduct.
“By Hook or By Crook: The Drive to Conformity and Assimilation in Liberal and Conservative Poor Relief Theory”, 7 Hastings Women’s Law Journal 391-440 (1996).
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Abstract: The article explores the fundamental conservatism of the debates about welfare reform arguing tat both liberal and conservative positions are both wedded to a belief in the necessity of social conformity. Through that exploration, I consider the nature of assimilation in American society. Poor relief is not given — it is sold. The primary price the poor pay is acceptance and conformity. Acceptance — assimilation of the postulates on which the social and economic system rests — acknowledges that there is a reason why some are wealthy and others are poor. It provides a justification for the existing social structure based on notions of merit and a modern form of primogenitor. Conformity — internalization of the specific conduct norms of the relief givers — assures stability as well the potential for minimizing the need to give aid in the first place. I end with an exploration of the value and limitations of non-mainstream discourse. I suggest that transformative critical scholarship may have only limited effect outside the communities from which it derives. Tending to question the normative substructure of dominant groups, transformative critical theory will be demonized, marginalized and ignored. What remains is a dialogue based on mutual non-recognition — scholarship which talks at but not to each other.
“Poor Relief, Welfare Paralysis and Assimilation“, 1996 Utah Law Review 1-49.
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Abstract: Since at least the early 1980’s, so-called conservative commentators have pushed their version of welfare reform by attempting to differentiate it from the theories and assumptions animating “liberal” programs of welfare, as well as the programs spun from such theories. Traditionalists like Charles Murray have spoken of a “paradigm shift” in American intellectual consensus on poor relief occurring between 1964 and 1967. Liberals also exhibit the “distancing” reflex — characterizing their approaches as fundamentally different from those of traditionalists. They tend to view even the Great Society programs as “ungenerous by international standards and uneven in their coverage across the states and population groups at risk.” But politically credible liberal and conservative programs remain true to the same set of basic of assumptions about how society ought to work and what society ought to expect of individuals. These assumptions, comprising our socio-cultural substructure, arise out of the bundle of basic assumptions and parameters which form and limit poor relief methodology which I have elsewhere described as forming a “static paradigm.” The differences between them, while very real, are differences in implementation. Ultimately, what separates liberal and conservative is detail. We are consumed by differences in detail; we begin to believe that on these differences will turn the very shape and character of the poor relief programs to be implemented. But our debate about the details is carried on at the level of symbol; it rarely refers back to the level of implementation. But symbol is a disguise. We speak about the eradication of poverty as we argue about the amount of money the nation will bestow on its paupers, the kind of paupers we will succor, and the kind of behavior that would indicate the requisite gratitude for the charity bestowed. With these symbols and in this disguise we endlessly repeat the dance of “welfare reform” which has bedeviled (and employed) this nation since the enactment of AFDC in 1935. The tune to which we dance is set by our socio-cultural taboos. Taboos compel assimilation. Assimilation avoidance of taboos. It is a significant social good in the eyes of any dominant group. To understand poor relief, we must pay more attention to common source of all such programs. In that understanding rests comprehension of the basic conservative nature of liberal reform, and the liberal nature of conservative proposals. And in that lies necessary immobility of welfare reform, and its connection to assimilation. I examine the nature of the necessary of immobility here. Part I focuses on poor relief etiology. I speak to the manner in which our paradigmatically limited approaches to poor relief constitutes a foundationalism steeped modernist moral imperatives; a fully developed and closed autopoietic system. Part II centers on a core thrust of modern poor relief, whether liberal or conservative — the assimilation imperative.
“The Incarnate Word, that Old Rugged Cross and the State: On the Supreme Court’s October 1994 Term Establishment Clause Cases and the Persistence of Comic Absurdity as Jurisprudence”, 31 Tulsa Law Journal 447-471 (1996).
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Abstract: Establishment Clause jurisprudence has devolved into an endless conversation between people who in trying to order a limited universe find they cannot make themselves understood — an absurdist melodrama. We, as audience, are reduced to finding meaning in the action that proceeds from these nonsensical conversations. Each Establishment Clause opinion produces an interaction between the Justices substantially the same as that between the characters in an absurdist play. Shorn of a common language, or even a common ideology for understanding and regulating our public religious lives through the Religion Clauses, the Supreme Court has largely abandoned principle as it cobbles together judgments under cover of increasingly absurdist simultaneous monologues which are passed off as principled decisions. This paper considers two Religion Clause cases decided during the Supreme Court’s 1994 Term in the context of absurdist jurisprudence. In one, Rosenberger v. The University of Virginia, five members of the Supreme Court indicated that the University of Virginia, through its student council, had to pay to print a student publication which complied with the authors’ duty to, as the Good Book says, “Go into all the world and preach the good news to all creation.” In the other case, Capitol Square Review & Advisory Board v. Pinette, the Supreme Court held by a plurality of six that the State of Ohio did not violate the Establishment Clause by permitting the Ku Klux Klan to display an unattended Latin cross on the grounds of the Ohio State Capitol. These cases serve as evidence of the continued juridification of everyday life and especially of everyday religious and political life. This juridification has lent a certain air of fantasy to real life as we try to squeeze reality through the language filters over which we fight. Perhaps more importantly, these cases highlight the critical importance of factual narrative in a constitutional jurisprudence which has become highly contextualized — dependent on the reality crafted from the factual picture painted by the court. Jurisprudence does not matter. Standards do not matter. Uniformly applicable rules cannot exist. Facts exist, narratives exist, results exist, sensibilities exist and judging exists. Theory exists only as the afterthought of judgment.