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“Los fingidos y vagabundos: On the Origins of Personal Responsibility and the Welfare State In Early Modern Spain and Its Implications for Welfare Reform in the United States,” 3 Loyola Poverty Law Journal 1-55 (1997).

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Abstract: I intend to explode three myths of American welfare. The first is that it derived solely from English secular legislation of the 17th century. The second is that this English legislation is a product of a singular, if not unique, intellectual history. The third is that the English legislation we inherited has been subject to unique development in this country because of the existence of singularly American peculiarities — principally racism and the concern with “family values”. Americans will continue to find elusive that necessary understanding of welfare and its reform as long as we shut ourselves off from the related experiences of peoples and systems from which our conceptualization of welfare derives.
England was not the only parent of American welfare; we have another — and that progenitor is Imperial Spain. Spain devoted a substantial amount of intellectual effort to the study of means by which poverty could be eradicated and the poor rehabilitated — that is, made productive responsible citizens. The sixteenth century witnessed a great poverty debate in Imperial Spain very similar to our own today. On the one side stood the traditional religious establishment, advocating little government intrusion into the provision of welfare and advocating strict religious instruction as a means of curbing poverty and deviance while permitting all who sought it to beg for their keep. On the other stood the big government advocates, insisting that the state ought to have a primary responsibility for the administration of relief, that there ought to be a strict separation between the able-bodied and the deserving poor, that the able-bodied ought to be forced to work, and that the state ought to provide training but no jobs. I will analyze this debate and its current relevance as expressed in the work of five Spanish writers of the period — Juan Luis Vives, Domingo de Soto, Juan de Medina, Miguel de Giginta and Cristobal Perez de Herrera.
Spanish conceptualizations about poverty was transported to its colonies. These notions rest well within normative core of the thinking of Latin Americans who now form sizeable minorities of our population. Its lessons are relevant to our own struggles with welfare reform. Nations do not change merely because people attempt to demonstrate the ineffectiveness or prejudice of its approaches to a problem. Radical change is reduced to theater — and theater of the absurd at best. The nation will applaud the performance, perhaps, but then go about its business substantially unchanged in the short term. Departing in major ways from socio-cultural norms in devising different approaches to welfare reform permitted Spanish intellectuals to be marginalized in the debate about poor relief.

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Narrative and Jurisprudence in State Courts: The Example of Constitutional Challenges to Sex Conduct Regulation, 60 Albany Law Review 1633-1671 (1997) (Annual State Constitutional Law Commentary Issue).

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Abstract: This article explores judging as a process of narrative transmogrification in the context of litigation in state courts against gay men. Courts hear the stories of litigants and transform them into something digestible. Courts accomplish this transformation by retelling stories to express conformity with what we believe and what we “know.” Transformation requires input. Courts use the stories of the litigants as “input.” The courts then retell the received stories. These new stories usually appear as the “facts” of the case. Part I explores the way in which the courts have used their learning from the last twenty-five or so years to craft an understanding of the gay man, which is then used to filter the stories which gay litigants bring to the courts. Part II examines three recently decided state high court cases. The singular story which serves as input in all three cases was transformed into three different stories, based in part on the courts’ understanding of the litigants before them. These different stories could then be used as the basis for understanding different approaches courts took in three cases, all of which had substantially the same facts in common. In Christensen (Georgia) and Sawatzky (Oklahoma), the courts concentrated on stories of uncontrolled whorishness and public display of shameless conduct and used this sense of vileness to resist constitutional reinterpretation. In Wasson the Kentucky court used substantially the same story to construct constitutional doctrine devoted to the protection of the public search for privately consummated sexual actions. The Appendix contains a listing of substantially all of the cases in which state high courts considered constitutional challenges to state proscriptions of “sodomy” or “lewd conduct” between 1960 and 1996 (as well as some related cases).

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Fairness as a General Principle of American Constitutional Law: Applying Extra-Constitutional Principles to Constitutional cases in Hendricks and M.L.B., 33 Tulsa Law Journal 135-162 (1997).

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Abstract:  From out of our tradition of constitutionalism and the Justices’ “sense” the drift of the document, or from out of the “eternal verities” with which the document is said to have been infused at the time of its crafting, our Court has been fashioning important general principles of Constitutional law. Among the most important, and least acknowledged, is the constitutional principle of fairness. In the “Process” cases of the last Term we see, confirmed again, what we had suspected for some time: the categories “due process” and “equal protection” have become meaningless. We have known this for a long time with respect to that illogical, oxymoronic and legally untenable construct “substantive” due process. We now see the justices of the Supreme Court expose, in a blasé sort of way, the truth that these categories mean nothing. We keep them because we must – they are the words in our Scripture. But we apply them interchangeably as something new; we use their overtones and penumbras to do equity. We have sacrificed the rule-making of the law courts for the auctoritas of the chancellor in our constitutional hermeneutics. The implications of the emerging (if shifting) majority of the Rehnquist Court is now clear: just as the European Court of Justice revolutionized Constitutionalism in the European Union by the crafting of so-called “general principles of Community law,” our Supreme Court has constructed general principles of Constitutional law. I first try to make sense of this emerging extra-constitutional doctrine of fairness, and how it is distinguishable from text-based constitutional doctrine; “the problematique is rooted in the interpretive gap which exists between the constitutional provision and conduct.” I then discuss the way the principle of fairness molds the outcomes in two cases. In M.L.B., the constitutional principle of fairness required the provision of needs-based waivers of record preparation fees in appeals from decisions terminating the parental rights of women. The five member majority of the Court melded overtones from the dicta in a series of due process and equal protection cases to arrive at this result. In Hendricks, we see the mirror image of M.L.B. Here, the constitutional principle of fairness permitted a state to adjudge a man a mentally deviant sexual predator, and on that basis commit him to an indeterminate period of confinement in state facilities. A majority of the Justices would have us blend notions of substantive due process, and double jeopardy and ex post facto limits to arrive at this result. The constitutional principle of fairness permits what will amount to a heightened scrutiny of any person deemed dangerously sexually deviant.

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Harmonization, Subsidiarity and Cultural Differences: An Essay on the Dynamics of Opposition Within Federative and International Legal Systems, 4 Tulsa Journal of Comparative & International Law 185-217 (1997).

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 Abstract: This paper considers some of the ramifications of the project of legal harmonization in the context of the European Union. I start with the notion that harmonization does not stand alone. Rather, it is one of voices producing a cacophony as three voices read different scores. I identify these three voices as harmonization, subsidiarity and cultural solicitude. The song of supra-national harmony is meant to provide the melody. It seeks to impose the underlying structure for the music being played. It overlays the song of subsidiarity. Subsidiarity is chanted for the defense of the autonomy of once formerly sovereign states now subject to these new supra-national suzerains. It also overlays the song of cultural solicitude. Protection of national and minority culture is a haunting ballad yearning for a nostalgic past stripped of its essential and dangerous vitality and reduced to a song of “tourist culture.”
It has become quite fashionable in the Western World to be in favor of the simultaneous flowering of harmonization, subsidiarity and the protection of minority cultures. This trio of norm goals have assumed significance because of the dominance of the Western notions of right and wrong within the international community. My purpose is to critically examine the tensions and oppositions between the drive to establish order, the politics of choosing one form of order from among the many, and the consequences of the choices made. To illustrate the point I concentrate on the recent case of P. v. S & Cornwall County Council (Case C-13/94 (April 30, 1996)). In Cornwall County Council, the European Court of Justice extended the E.U.’s protection against sex discrimination to transsexuals. I first briefly examine the imperatives and perversities of harmonization, subsidiarity and cultural solicitude and then demonstrate the effect of these imperatives and perversities in the context of the Cornwall County Council case. I end with a discussion of the obligatory consequences of systems necessarily built on conflicting systems of power distribution.
The Cornwall County Council decision provides an important insight into the intersections and oppositions of harmonization, subsidiarity and cultural solicitude within a supra-national system. The decision in Cornwall County Council is driven by the drive to harmonize the fundamental conduct norms of Europe. The source of this normalizing harmonization is not the black letter of the Community Treaties, but rather the amorphous “common law” of Europe, crystallized in the E.J.C.’s general principles of Community law. Cornwall County Council case also represents a stark example of the limits of subsidiarity as a check on the erosion of the power of the Member States. Subsidiarity is of little practical use in the face of the power of the E.U. Through its courts, the E.U. creates the norms which necessarily informs the internal actions of the Member States themselves. Lastly, cultural solicitude is of no moment. Where an issue touches on matters relating to a fundamental characteristic of the European “character”, then sub-national cultural idiosyncracies may not intrude.
Thus, lurking beneath the surface of the “good” decision in Cornwall County Council lurks a European reality in which hierarchy and hegemony are reinforced with the language of inclusion and mutual respect. Though the political organs of the E.U. loudly announce their adherence to the principles of diversity and respect for difference and celebrates the locality in theory, the facts are necessarily otherwise. Difference is celebrated, but only as long as it sings to the tone dictated by the voice of harmony. Harmony between groups is the first meta-principle. The idiosyncratic necessities of geographically based nation-states or culturally based “identity” states must conform to the general organizing principles of behavior as interpreted under the rubric “general principles.” European history in this century militates against a different sort of political ordering. Difference is dressing, and respected as such — things like national costume, language, cooking style, holidays, art, music. Beyond the suppression of violation of core norms, there is the possibility of toleration, accommodation, mutual respect, multiculturalism. Subsidiarity, deference, and cultural solicitude can only exist within this box. Still, within the box, much is possible.

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“Reading Entrails: Romer, VMI and the Art of Divining Equal Protection,” 32 Tulsa Law Journal361-388 (1997).

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 Abstract: This article analysis two equal protection cases decided by the Supreme Court in 1996, Romer v. Evans and United States v. Virginia (“VMI”). Both cases were characterized as fraught with political significance far beyond their respective facts, to be used as the vehicles through which the Supreme Court might force a reconceptualization of cultural norms by broadly redrawing the fundamental legal rules governing the way in which society, through its legal institutions, can behave toward women and sexual minorities. In VMI, seven justices held that equal protection had been offended by the gender discriminatory actions of the State of Virginia through one of its institutions of secondary education, the Virginia Military Institute (“VMI”), and that its offense was not cured by the state’s insistence that the alternative arrangements it made were adequate. The opinions in these cases, however, are neither straight forward nor clear. Neither case provided the context for jurisprudential revolution. In both cases, the Court has also taken what had been relatively straight forward legal theory and complicated, perhaps muddled, the legal analysis thoroughly. The article demonstrates the way that legal standards, and the interpretation and meanings of words, become hopelessly muddied in the course of opinions in which the justices seek results which cannot straightforwardly attained by the pluralities in the cases – heightened standard of protection for sexual minorities in Romer and against gender differentiation in VMI. Each case thus demonstrates the power and messiness of the sort of linguistic subterfuge that characterizes much of modern constitutional decisions.

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“Pitied But Not Entitled’: The Normative Limitations of Scholarship Advocating Change,” 19 Western New England Law Review59-66 (1997).

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 Abstract: This essay argues that the process of integrating the poor, and especially the poor of color into mainstream society will be harder than it might appear. The dividing line between citizens and subjects will continue to be drawn at the point where a person is entitled to state assistance. It suggests reasons for this state of affairs. Substantial changes in the status quo threaten the social, political and economic standing of the current elites. Those elites are able to draw on core normative cultural values to defend their position. Those seeking change, to the extent they threaten the current foundational social order, will be subject to social control. Voices seeking moderate change within an cultural assimilationist model will be lionized and absorbed. Others will be demonized or ignored. The article ends by exploring the means through which status changing attacks have begun to be blunted by dominant elites – through an investment in an ‘equality of opportunity’ socio-legal framework and second by bringing formerly outside racial, religious or ethnic minorities within the definition of majority culture. The former strategy effectively eviscerates income or wealth transfer strategies as a political goal. The second effectively provides the most potentially dangerous threats to the current social order with a stake in the status quo.

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