“Forging Federal Systems Within a Matrix of Contained Conflict: The Example of the European Union,” Harvard Jean Monnet Working Paper, No. 4/98 (1998); 12 Emory International Law Review 1331-1394 (1998).
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Abstract: The process of European Constitutionalism is a function of the dynamic interaction between three “communities” of forces: the centralizing impulses of harmonization, the deferring to nation-state sovereignty subsumed under the rubric subsidiarity, and solicitude for the peculiarities of the “peoples” of Europe. This paper develops a theory to explain how each of these three forces has shaped European federalism and to understand how each is currently expressed within the European Union. Today, European federalism is based on the ceding of fundamental norm-making power to Community Institutions. The sovereignty of Member States is increasingly constrained by these norms, whether or not national actions directly concern the provisions of the Treaty. Solicitude for cultural difference is tightly controlled for the moment, and is limited to the touristic aspects of cultural expression. The current configuration is not locked into the fabric of the structure of the Community. Indeed, the Community system is structured to contain, not eliminate, the conflict between the crisscrossing imperatives of these three forces. Containment permits changes to the governing structure of the union based on the relative value of each of these forces. The paper concludes with an exploration of the future of European federalism within the context of this conflict.
“Not a Zookeeper’s Culture: LatCrit Theory and the Search for Latino/a Authenticity in the U.S.,” 4 Texas Hispanic Journal of Law & Policy 7-27 (1998).
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Abstract: LatCrit theory focuses on the way race, ethnicity and culture join to create systemic social and legal hierarchies. Its theory is social and legal transformation through interrogation of the way law normalizes hierarchy and subordination at the level of discrete communities. Richard Delgado and others have begun to employ LatCrit theory to examine the relationship between dominant white socio-legal culture and Latinos/as. In this essay I use the insights of LatCrit theory to interrogate our own conception of what it means to be Latino/a. Construction of a Latino/a identity requires us to somehow fuse together the norms and culture of people with very similar and at the same time very different customs and outlooks. It also requires us to be leery of definitions created from out of our relationship with the dominant socio-cultural communities in this country. At the same time, it is important to interrogate the notion of what it means to be Latino/a itself. It is not enough to construct some sort of static vision; LatCrit Theory must also teach us to interrogate our own vision of community. We must begin to confront the contradictions of our own subordination while we maintain hierarchy and micro-subordinations – patriarchy, homophobia, religious chauvinism, and language hierarchy – within our own community. We can do this because we are not creatures exhibited in the zoological park of immigrant exotica, nor is our culture ossified. LatCrit theory provides the tools for that effort.
“Tweaking Facts, Speaking Judgment: Judicial Transmogrification of Case Narrative as Jurisprudence in the United States and Britain,” 6 S. California Interdisciplinary Law Journal 611-662 (1998).
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Article: Judging is a process of narrative transmogrification: 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.” In this sense, the stories themselves embody the rules by which we come to know and discipline our social selves. Story becomes counter story which in turn becomes the basis for the rules which explains the way in which the story is retold. The judgment is in the retelling and not in the rule itself. Jurisprudence, conventionally understood as the science of the rules applied by the courts, becomes an empty and backwards science.
The process of narrative transformation is subconscious. The courts rarely “turn to the audience” and explain the process underlying its performance. It did so recently, though, in Romer v. Evans (116 S.Ct. 1620 (1996)). I begin by laying the basis and focus of judicial narrative transmogrification through the “eyes” of the opinions in Romer. I then examine the way courts transmogrify narrative in the construction of judgments that serve to regulate the sexual conduct of sexual minorities. For that purpose I look at a singular story, a story of the public expression of a sexual desire by gay men which is meant to be privately consummated. This story forms the core of five cases, three from the United States and two from the United Kingdom. I demonstrate the process of narrative reconstruction through these cases, how the original story, the story input into the courts is lost and distorted in the service of the abstract normative vision of the particular court. Courts invoke this transformative mechanism whether in the service of the status quo, or in the crafting of a different vision of that status quo. And so, out of one story will emerge five very different events, or, rather, five different tellings of law.
I then consider the consequences of the analysis of the cases. I explore the necessity and relevance of a politics of assimilation within litigation based “liberation” strategies. Ironically, though the courts serve to perpetuate the suffocation of sexual non-conformity as an instrument of the enforcement of culture norms, they do not provide the best site for contesting those images. The unavoidability of assimilation strategies in litigation again emphasize the irrelevance of courts as instruments of change. But it also demonstrates another, and important, purpose of such strategy, the use of the judicial process as a platform for the communication and wide dissemination of ideas. Other than as a form of confabulation, courts remain largely irrelevant to the enterprise of cultural redeployment.
“Religion as Object and the Grammar of Law,” 81 Marquette Law Review 229-254 (1998).
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Abstract: It is a commonplace that Religion has been disestablished as a formal matter in the United States. We also understand that our legal culture has extended the reach of this formal disestablishment well beyond that required under the Federal Constitution. The result is a deep and enduring deprivileging of Religion as a normative basis for decision making. “If an unspoken and irregular but nonetheless powerful prohibition excluding religion from public and especially legal discourse has been in effect for some time, then those of us who are interested in ‘law and religion’ need to pay attention to that phenomenon.” (Smith at 40). This essay suggests that Smith is right, but in an altogether different way. We are stuck on the horns of a dilemma of our own creation. We conceived of the separation of Church and State, of the treatment of formal Religion and its values as res at a time when religious consensus made these religious sentiments an unconscious and almost inextricable part of the legal dialogue. We have entered an age when this unconscious acceptance of underlying religious Christian norms is contested. Rather than seek to re-establish religion as the superior force of political organization, American constitutionalism requires subordination of religious institutionalism while cultivating indifference to religious sentiments. First, the American approach to Religion is not haphazard or serendipitous. Neither is the approach accidental. Rather, de facto disestablishment reflects a basic normative choice made at the time of the founding of our Republic. The discursive quality of the Establishment Clause itself serves to compel treatment of Religion primarily as an object of law. Second, much of the efforts of late twentieth century American commentators has been to move away from a conceptualization of religion as an object of law. In its place, we seek to substitute a conceptualization of Religion as part of the grammar of law. However, when we seek to stretch the utility of Religion, that is, when we attempt to make Religion serve as part of our grammar of law we cheat. We do this by defining Religion as any one of an infinite number of amorphous personal belief systems. To engage in that enterprise is to belittle the normative significance of Religion as independent systems of law. Third, even assuming that society is inclined to permit the inclusion of Religion into the grammar of law (its process), we must be willing to sanitize Religion of both its context and its history. To accomplish this task will require that we induce a national cultural amnesia. Yet it seems to me most odd in this day of cultural and historical reawakening that we engage in a project of “forgetting.” The essay ends by suggesting that if we must open the grammar of law to Religion, we must be prepared for the possibility that such an enterprise will endanger that other great cultural project of this Nation — the project of assimilation. And thus the truly tragic for religious traditionalists — explicitly religious sentiments have been transformed from the ever-present subconscious arbiter of legal normativity, to just another voice vying to be heard among the cacophony of systems seeking norm-setting dominance in our nation.
“A Cobbler’s Court, A Practitioner’s Court: The Rehnquist Court Finds its “Groove”,” 34 Tulsa Law Journal 347-365 (1998/99).
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Abstract: The Rehnquist Court has proven to be one more interested in the practical effect of its decisions than in the crafting of grand theories or visions of jurisprudence. In this respect the Rehnquist Court presents a great contrast from the work fo the Warren Court. This article examines a number of cases from the Supreme Court’s 1997 Term to understand the way in which the Rehnquist Court has successfully adopted an incrementalist, highly focused approach to decision making. The foremost purpose of decisions is to provide practical guidance to people, and especially administrators, enforcers and those bound by particular provisions, in the application of obligations and duties imposed by courts and legislators. This article examines some of the more important federalism cases from the Supreme Court’s 1997 Term – AT&T v. Central Office Telephone, 118 S. Ct. 1956 (1998); Baker v. General Motors, 118 U.S.657 (1998); Foster v. Love, 118 S. Ct. 464 (1997); Breard v. Virginia, 118 S. Ct. 1352 (1998) – and a sex harassment case – Oncale v. Sundowner Offshore Serv., 118 S. Ct. 998 (1998). It examines the ways in which decisions in those cases eschew the crafting of theory for practical instruction, even where theory might provide a basis for ordering and regularizing the emerging jurisprudence in this area. I suggest that these cases demonstrate the ways in which the Rehnquist Court functions as a pragmatist court, emphasizing contextualization, application, judicial hierarchy and instruction over theory. I end with a discussion of the reasons legal academics have found the cases so disappointing: the Rehnquist Court has become disappointing, and particularly disappointing this past Term, because the Court has failed to meet our expectations of a Supreme Court of the American federation. Law professors, journalists, and politicians all love grand theory. We cannot get enough. Our engagement with grand theory keeps us employed. It is sexy, ambiguous, and malleable. It perpetuates the illusion that some powerful entity (the Court) is engaging in very important work (its opinions), which will fundamentally transform our social order—or destroy it. Even lawyers love grand theory. It is ambiguous and malleable, but not in the sense that gives pleasure to academics. Despite the efforts of Justice Scalia, the Rehnquist Court has increasingly shown itself inept at grand theory. As a result, the Rehnquist Court has been unable to stamp on the public mind, or even the academic mind, its peculiar vision of a theory of American Constitutional law or even a theory of courts or the American political system. In this context, the jurisprudence of both bright line tests and highly nuanced contextualization can be explained as internally consistent with a pragmatist vision of constitutional judging. With respect to common law claims, or claims that do not involve the government as principal or enforcer, then a highly contextualized balancing is often the rule. On the other hand, the Court will take a different approach, one favoring bright line rules, where the government is an active participant or in cases of statutory interpretation. In this context the court seems to favor simple rules, which are easy to apply.