Larry Cata Backer - Professor of Law

Publications

My publications are arranged below by the following fields of study:

Comparative Law
Constitutional Law
- U.S. Federal
- U.S. State
Constitutional Law
- European Union Law
- Other Non-U.S. Law
Corporate Law
Law and Society
Legal Education

Because my work sometimes overlaps these fields, I have listed some of my work more than once. To review the abstract/summary of any work, simply click on the title.

COMPARATIVE LAW
Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges, 12 Wm. & Mary Bill Rts. J. 117 (2003).

The Führer Principle of International Law: Individual Responsibility and Collective Punishment, 21 Penn State Int’l L. Rev. 509 (2003).

Comparative Corporate Law: United States, European Union, China and Japan (Durham, NC: Carolina Academic Press, 2002).

The Euro and the European Demos: A Reconstitution, 21 Y.B. Eur. Law (England) 13 (2003).

The Extra-National State: American Confederate Federalism and the European Union, 7 Colum. J. Eur. L. 173 (2001).

Inscribing Judicial Preferences into Our Basic Law: The Political Jurisprudence of European Margins of Appreciation As Constitutional Jurisprudence in the U.S., 7 Tulsa Comp. & Int’l L. J. 327 (2000).

Chroniclers in the Field of Cultural Production: Interpretive Conversations Between Courts and Culture, 20 B.C. Third World L.J. 291 (2000).

Disciplining Judicial Interpretation of Fundamental Rights: First Amendment Decadence in Southworth and Boy Scouts of America And European Alternatives, 36 Tulsa L.J. 117 (2000).

Some Thoughts on The American Declaration of Independence and the Irish Easter Proclamation, 8 Tulsa J. Comp. & Int'l L.87 (2000).

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, 4 Loy. Poverty L. J. 1 (1997).

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

Inventing a “Homosexual” for Constitutional Theory: Sodomy Narrative and Antipathy in U.S. and British Courts, 71 Tul. L. Rev. 529 (1996).

Medieval Poor Law in Twentieth Century America: Looking Back Towards a General Theory of Modern American Poor Relief, 44 Case W. Res. L. Rev. 871 (1995).

CONSTITUTIONAL LAW
– U.S. Federal
– U.S. State

Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges, 12 Wm. & Mary Bill Rts. J. 117 (2003).

Using Law Against Itself: Bush v. Gore Applied in the Courts, 54 Rutgers L. Rev. 1109 (2003).

Race, “The Race,” and the Republic: Reconceiving Judicial Authority After Bush v. Gore, 51 Cath. U. L. Rev. 1057 (2002).

Religion and the Discursive Language of Same Sex Marriage, 30 Capital L. Rev. 221 (2002).

Chroniclers in the Field of Cultural Production: Interpretive Conversations Between Courts and Culture, 20 B.C. Third World L.J. 291 (2000).

Disciplining Judicial Interpretation of Fundamental Rights: First Amendment Decadence in Southworth and Boy Scouts of America And European Alternatives, 36 Tulsa L.J. 117 (2000).

There Can be Only One: Law, Religion, Grammar and The Organization of Society in the United States in Law and Religion: A Critical Reader 425 (Stephen M. Feldman, ed., 2000).

Altheimer Symposium on Racial Equity in the 21st Century: Culturally Significant Speech: Law, Courts, Society and Racial Equity , 21 U. Ark. Little Rock L.J. 845(1999).

Toleration, Suppression and the Public/Private Divide: Homosexuals Through Military Eyes, 34 Tulsa L.J. 537 (1999).

Tweaking Facts, Speaking Judgment: Judicial Transmogrification of Case Narrative as Jurisprudence in the United States and Britain, 6 S. Cal. Interdisciplinary L.J. 611 (1998).

Religion as Object and the Grammar of Law, 81 Marq. L. Rev. 229 (1998).

A Cobbler’s Court, A Practitioner’s Court: The Rehnquist Court Finds its “Groove”, 34 Tulsa L. J. 347 (1998).

Narrative and Jurisprudence in State Courts: The Example of Constitutional Challenges to Sex Conduct Regulation, 60 Alb. L. Rev. 1633 (1997) (Annual State Constitutional Law Commentary Issue).

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

Reading Entrails: Romer, VMI and the Art of Divining Equal Protection, 32 Tulsa L. J. 361 (1997).

Inventing a “Homosexual” for Constitutional Theory: Sodomy Narrative and Antipathy in U.S. and British Courts, 71 Tul. L. Rev. 529 (1996).

Exposing the Perversions of Toleration: The Decriminalization of Private Sexual Conduct, the Model Penal Code, and the Oxymoron of Liberal Toleration, 45 U. Fla. L. Rev. 755 (1993).

Raping Sodomy and Sodomizing Rape: A Morality Tale About the Transformation of Modern Sodomy Jurisprudence, 21 Am. J. Crim. L. 37 (1993).

CONSTITUTIONAL LAW
– European Union Law
– Other Non-U.S. Law
The Euro and the European Demos: A Reconstitution, 21 Y.B. Eur. Law (England) 13(2003).

Forward: Constituting Nations – Veils, Disguises, Masquerades, 20 Penn State Int’l L. Rev. 329 (2002).

The Extra-National State: American Confederate Federalism and the European Union, 7 Colum. J. Eur. L. 173 (2001).

Disciplining Judicial Interpretation of Fundamental Rights: First Amendment Decadence in Southworth and Boy Scouts of America And European Alternatives, 36 Tulsa L.J. 117 (2000).

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 Int’l L. Rev. 1331 (1998).

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

Harmonization, Subsidiarity and Cultural Difference: An Essay on the Dynamics of Opposition Within Federative and International Legal Systems, 4 Tulsa J. Comp. & Int'l L. 185 (1997).

Inventing a “Homosexual” for Constitutional Theory: Sodomy Narrative and Antipathy in U.S. and British Courts, 71 Tul. L. Rev. 529 (1996).

CORPORATE LAW
The Duty to Monitor: The Emerging Obligations of Outside Lawyers and Auditors to Detect and Report Corporate Wrongdoing, 77 St. John’s L. Rev. 919 (2003).

Comparative Corporate Law: United States, European Union, China and Japan (Durham, NC: Carolina Academic Press, 2002).

The Sarbanes-Oxley Act: Federalizing Norms for Officers, Lawyer and Accountant Behavior, 76 St. John’s L. Rev. 897 (2002).

LAW AND SOCIETY

Using Law Against Itself: Bush v. Gore Applied in the Courts, 54 Rutgers L. Rev. 1109 (2003).

Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges, 11 Wm. & Mary Bill Rts. J. – (forthcoming 2003).

The Führer Principle of International Law: Individual Responsibility and Collective Punishment, 21 Penn State Int’l L. Rev. 509 (2003).

The Euro and the European Demos: A Reconstitution, 21 Y.B. Eur. Law (England) 13 (2003).

Human Rights and Legal Education in the Western Hemisphere: Legal Parochialism and Hollow Universalism, 21 Penn State Int’l L. Rev. 115 (2002).

Chroniclers in the Field of Cultural Production: Interpretive Conversations Between Courts and Culture, 20 B.C. Third World L.J. 291 (2000).

Some Thoughts on The American Declaration of Independence and the Irish Easter Proclamation, 8 Tulsa J. Comp. & Int'l L.87 (2000).

Measuring the Penetration of Outsider Scholarship in the Courts: Indifference, Hostility, Engagement, 33 U.C. Davis L. Rev. 1173 (2000).

Altheimer Symposium on Racial Equity in the 21st Century: Culturally Significant Speech: Law, Courts, Society and Racial Equity , 21 U. Ark. Little Rock L.J. 845(1999).

Toleration, Suppression and the Public/Private Divide: Homosexuals Through Military Eyes, 34 Tulsa L.J. 537 (1999).
Not a Zookeeper’s Culture: LatCrit Theory and the Search for Latino/a Authenticity in the U.S., 4 Texas Hisp. J. L. & Pol’y 7 (1998).

Queering Theory: An Essay on the Conceit of Revolution in Law, in Legal Queeries 185 (Leslie J. Moran, et al. eds., 1998). The Many Faces of Hegemony: Patriarchy and Welfare as a Women's Issue (reviewing Mimi Abramovitz, Under Attack, Fighting Back: Women and Welfare in the United States (1996)), 92 Nw. U. L. Rev. 327(1997).

Narrative and Jurisprudence in State Courts: The Example of Constitutional Challenges to Sex Conduct Regulation, 60 Alb. L. Rev. 1633 (1997) (Annual State Constitutional Law Commentary Issue).

Book Review, 6 Social & Legal Studies 455 (1997) (Eng.) (Reviewing, Carl F. Stychin, Law's Desire: Sexuality and the Limits of Justice (1995)).

Harmonization, Subsidiarity and Cultural Difference: An Essay on the Dynamics of Opposition Within Federative and International Legal Systems, 4 Tulsa J. Comp. & Int'l L. 185 (1997).

“Pitied But Not Entitled”: The Normative Limitations of Scholarship Advocating Change, 19 W. New Eng. L. Rev. 59 (1997).

Inventing a “Homosexual” for Constitutional Theory: Sodomy Narrative and Antipathy in U.S. and British Courts, 71 Tul. L. Rev. 529 (1996).

By Hook or By Crook: The Drive to Conformity and Assimilation in Liberal and Conservative Poor Relief Theory, 7 Hastings Women's L.J. 391 (1996).

Poor Relief, Welfare Paralysis and Assimilation, 1996 Utah L. Rev. 1.

Welfare Reform at the Limit: An Essay on the Futility of "Ending Welfare as We Know It," 30 Harv. C.R.-C.L. L. Rev. 339 (1995).

Medieval Poor Law in Twentieth Century America: Looking Back Towards a General Theory of Modern American Poor Relief, 44 Case W. Res. L. Rev. 871 (1995).

Punishing Frivolous Appeals and Staying Executions of Judgments After Enactment of H.B. 1468, in Appellate Practice and Procedure (OU-CLE publication 1994).

Exposing the Perversions of Toleration: The Decriminalization of Private Sexual Conduct, the Model Penal Code, and the Oxymoron of Liberal Toleration, 45 U. Fla. L. Rev. 755 (1993).

Raping Sodomy and Sodomizing Rape: A Morality Tale About the Transformation of Modern Sodomy Jurisprudence, 21 Am. J. Crim. L. 37 (1993).

Of Handouts and Worthless Promises: Understanding the Conceptual Limitations of American Systems of Poor Relief, 34 B.C. L. Rev. 997 (1993).

Civil Wars: Stays of Execution, Appellate Sanctions and the Nature of Consensus on the Utility of Appellate Review, 29 Tulsa L.J. 65 (1993).

LEGAL EDUCATION
Defining, Measuring and Judging Scholarly Productivity: Working Toward a Rigorous and Flexible Approach, 52 J. Legal Educ. – (forthcoming 2002).

Human Rights and Legal Education in the Western Hemisphere: Legal Parochialism and Hollow Universalism, 21 Penn State Int’l L. Rev. 115 ( 2002).

Measuring the Penetration of Outsider Scholarship in the Courts: Indifference, Hostility, Engagement, 33 U.C. Davis L. Rev. 1173 (2000).

THE DUTY TO MONITOR: THE EMERGING OBLIGATIONS OF OUTSIDE LAWYERS AND AUDITORS TO DETECT AND REPORT CORPORATE WRONGDOING, 77(4) St. John’s L. Rev. – (forthcoming 2003).

Recent legislation – Section 10A of the Securities Exchange Act of 1934 for auditors and Section 307 of the Sarbanes-Oxley Act for lawyers – has imposed on corporate outsiders certain duties to monitor unlawful activity within a corporation, and to report that activity to designated corporate actors. It is generally understood that the monitoring obligations of lawyers and auditors extend to corporate activity which might constitute a violation of federal securities law and state fiduciary duty standards. But do the monitoring and reporting obligations extend to unlawful activities beyond the securities laws -- for example to violations of the laws prohibiting racial, religious, ethnic, age and sex discrimination? This article suggests that a strong set of arguments exist to support the answer – yes. The article first demonstrates that the monitoring rules create a broad obligation to detect and report that extends to any violation of law that could have a direct or indirect material effect on the financial condition of the corporation. The article then suggests that the nature of the detection and reporting obligation is active -- requiring auditors and lawyers to implement procedures for detecting violations. The failure to comply with the detect and report obligations can contribute, under certain circumstances to auditor or lawyer liability as a principal under the securities laws, for liability as a principal under the discrimination laws, and for greater exposure to discovery from plaintiffs. The article ends with an extended hypothetical involving outside counsel, auditors and a client corporation engaging in potentially discriminatory conduct.

THE FUHRER PRINCIPLE OF INTERNATIONAL LAW: INDIVIDUAL RESPONSIBILITY AND COLLECTIVE PUNISHMENT, 21 Penn State Int’l L. Rev. 509 (2003).

I offer here an extended Nietzschean joke: the necessity of error in the constitution of individual authority and communal power. Communities--the nation-state, religious communities, terrorist organizations--are arranged through a cultivation of error: mistaking causes for effects, assuming a false causality, creating an imagined causality, and assuming a free will. These errors of causation, these miscausations, have been offered as a means through which leaders or leader classes--the judge, the priest, the king, the president, the charismatic leader of violent sub-national communities--maintain authority. In contrast, the community itself, those who are led, dominated, controlled, manipulated, are considered only in the passive. They are the victims, the weak-willed, the powerless, the sheep, the herd. They obey because they must. But authority is not power, and reality is more subtle and layered than what appears on the surface of relationships. Just as the priest, the leader uses miscausation to create the illusion of power and so protect and expand individual authority, so the community uses miscausation to assert communal power--over the *510 priest, the president, the judge, the leader-- through the illusion of weakness. The strong leader does not usurp power from the communal weak; the herd, for its own preservation as a herd, demands the appearance of overlordship of the leader. The cult of the leader, of the individual solely responsible for her acts, and of communities consisting of passive amalgams free from responsibility serve as the foundation for modern human rights and humanitarian law. But the cult of the leader itself constitutes a titanic act of mis-causation in four parts: (1) that communities are protected not because they are weak, but because they are strong, to protect the community against blame for action committed in its name by its leaders; (2) that the leader is dependent on the community; the leader acts in conformity to the wishes of the people; (3) that the leader then serves as proxy for the community; the doctrine of personal responsibility for communal acts protects a community by sacrificing its leaders for acts of communal wrongs; and (4) that the community, the sheep, are in actuality the Shepherd in a world arranged to minimize the costs of inter-community conflicts for power. For modern political and legal theory, this misunderstanding unveils the perversity of the logic of modern international humanitarian law. I will offer an example--the way international humanitarian law, used to condemn punitive house demolitions in Israel, serves to subsidize the maintenance of the cultural production of hatred which constitutes communal permission to engage in individual acts of violence against not Israelis, but Jews.

RETIAINING JUDICIAL AUTHORITY: A PRELIMINARY INQUIRY ON THE DOMINION OF JUDGES, 11 Wm. & Mary Bill Rts. J. – (forthcoming 2003)

Why do the people and institutions of democratic states, and in particular those of the United States, obey judges? This article examines the foundations of judicial authority in the United States. This authority is grounded on principles of dominance derived from the organization of institutional religion. The judge in Western states asserts authority on the same basis as the priest – but not the priest as conventionally understood. Rather, the authority of the judge in modern Western democratic states is better understood when viewed through the analytical lens of priestly function developed in the philosophy of Friedrich Nietzsche. Focusing on the American Supreme Court and the European Court of Justice, this paper examines the manner in which high court judges have successfully internalized the characteristics of Nietzsche’s Paul and his priestly caste within the religion of Western constitutionalism. “Paul wanted the end, consequently he also wanted the means. What he himself did not believe, the idiots among whom he threw his doctrines believed. His need was for power; in Paul the priest wanted power once again – he could use only concepts, doctrines, symbols with which one tyrannizes masses and forms herds. (Antichrist ¶ 42). This critique of systems, and especially of systems locating the power of judgement, reward and punishment outside the self, finds echoes in the recent constitutional jurisprudence of the American Supreme Court and the European Court of Justice. The article then examines American and European textualism as a mechanism for the reinforcement of judicial authority. Judges acquire a monopoly over communication with the divine – justice, truth, norms – as expressed in constitutions, whether or not written. That expression provides the basis for the regulation of sin, deviation from the divine expression which only the priest knows. “The priest rules through the invention of sin;” (Antichrist ¶ 49); the constitutional judge rules through the inversion of doctrine. The interpretive doctrines, standards and tests which have grown up around constitutionalism converts norms into a morass of the unknowable, except with the guidance of priests speaking through courts. And so the judge creates a mechanics of authority based on a self-reinforcing dependence.

USING LAW AGAINST ITSELF: BUSH V. GORE APPLIED IN THE COURTS, 55(4) Rutgers L. Rev. – (forthcoming, 2003).

The decisions in Bush v. Palm Beach County Canvassing Bd. ("Bush I") and Bush v. Gore, ("Bush II") evidence the extent to which it now appears unremarkable for courts to play a role in even the most basic of political issues. While the doctronal value of the Bush decisions is certainly important, the Bush decisions are far more valuable for their endorsement of methodologies available to anyone seeking political advantage under the cover of judicial legitimacy. This article explores those principles, practices and procedures. I start with an appropriate theoretical context. For that purpose I look to LatCrit theory rather than more ideologically traditional or doctrinal theory. Ironically, this expression of critical theory, grounded in progressive political programs, provides the best conceptual basis for interpreting the ostensibly traditionalist Bush cases. I use this theoretical context to identify eight core methodological lessons of the Bush cases: (1) "Be Consciously Political;" (2) "Be Literal;" (3) "Attack Precedent;" (4) "Create Contradiction;" (5) "Appropriate;" (6) "Exploit Uncertainty and Sentimentality;" (7) "Recruit Legitimacy;" and (8) "If All Else Fails, Overwhelm Law Through its Own Devices." I then explore the way these lessons have been internalized by the courts and applied in nearly one hundred published and unpublished judicial opinions issued since the publication of the Bush cases. Those opinions are windows through which one can see the ways in which litigants have attempted to extract meaning from the Bush decisions far beyond their officially sanctioned reading, and the ways in which judges have attempted to situate the Bush decisions within the body of American case law. In their least dangerous sense, the lessons, as applied, suggest the ways in which the juridification of politics has become institutionalized in federal and state courts. The courts now rival the legislature as the venue par excellence for the resolution of political issues of every description. But the lessons also suggest the naturalization, within an ostensibly conservative political jurisprudence, of methodologies of legal perversion, of the use of law against itself. Having made a vocation of criticizing the political left for the nihilistic evils of critical and other progressive apoproaches to law, a so-called conservative court has gone a long way to implement a jurispruence of ultimate relativism and indeterminacy. Now that is irony!

COMPARATIVE CORPORATE LAW: UNITED STATES, EUROPEAN UNION, CHINA AND JAPAN (Durham, NC: Carolina Academic Press, 2002).
These materials are intended for a basic course in comparative corporate law. It also may be appropriate for use in courses taught overseas in short or semester long programs of study. These materials may be used either for a “lecture” course or as the basic readings of a seminar. Depending on the time available and the interest of the students and faculty, the course can utilize all of the materials, or it may limit its review to the United States and some, but not all of the other systems included in the materials. In past years, when teaching these materials in Europe, I have concentrated on the US and the EU and limited the discussion of issues of Chinese and Japanese law. Conversely, the course can emphasize the comparative study of US and Asian systems, minimizing the considerations of issues of European law.

The course is best utilized by students who have taken or are taking concurrently with it, a basic course in enterprise organization. However, there are enough materials provided so that even students who have not taken the basic course may profit from a study of these materials. The course materials are meant to provide a sound grounding for courses in international business transactions and international or cross border dispute resolution courses as well as provide a close study of materials usually treated lightly in Conflicts of Laws courses. The materials assume no familiarity with Japanese, Chinese, European national or EU law, but some familiarity with basic US law. For classes in which students have already taken a basic enterprise organization law course, the materials can be explored on a deeper level.

The materials are divided into eleven chapters. Chapters One and Two introduce the basic concepts which will be useful throughout the rest of the study. Chapter One introduces the student to the basic parameters of comparative law, and particularly, comparative law focused on issues of corporate governance. The materials provided introduce students to the basic themes and tensions in comparative study, with a focus on issues of enterprise governance. Chapter Two provides a very basic introduction to the political regimes of the governments that constitute the objects of study. In particular, there is a substantial amount of introductory material on the organization of the European Union, and the political and social organization of Japan and the People’s Republic of China. Because the assumption is that students know very little about the political or social organization of at least some for the countries or supra-national organizations studied, the materials cover much basic ground. To the extent that students are better grounded in this introductory material, teachers may choose to use the materials as a reference, referring back to it from time to time as needed, rather than teaching through it.

Chapter Three introduces the student to the regulatory context of enterprise organization. The first part of the chapter introduces the student to the patterns of formal organization of corporations, and the second part begins to consider the appropriate pattern of enterprise regulation. Particular emphasis is placed on a consideration of legal, economic and sociological characterizations of the corporation as a form of enterprise organization, and raises issues about the efficient regulation of these enterprises based on these characterizations. Introduced here also are issues of legal personality and their effects on regulatory regimes. Thus, these Chapters cover both the formal characteristics of corporate form, what makes a corporation different from other forms of business organization, and the problems of corporate reification. The concentration on reification is used as the introduction to the comparative analysis of American, European and Japanese approaches to the regulation of the corporation.

Chapter Four draws on the discussions in prior chapters, particularly in the last parts of Chapter Two, to consider the way in which conceptions of legal personality affect the form and substance of corporate regulation. The first part of the Chapter considers external regulation, and in particular the availability of constitutional or fundamental rights for corporations. The second part of the Chapter turns to the effect of different conceptions of legal personality on internal regulation of corporations. Chapter Four provides the basis for much of the discussion in the rest of the materials. Moreover, this chapter provides materials which illuminate the sharp differences possible among the various systems reviewed. Most importantly, it shows the way in which different views of corporate personality within a system can have a significant effect on the way in which corporations are regulated.

Chapters Five and Six introduce students to issues peculiar to corporate governance within multi-level federal or supra-national systems. As such, these chapters concentrate on the regulatory systems of the United States and the European Union. Japan and the PRC, as integrated unitary systems, do not encounter the formal problems of regulation considered in these chapters. Both chapters, however, point to patterns of regulation which might form a basis for worldwide harmonization in the future. Chapter Five concentrates on an area of fundamental difference between the corporate law of the United States and the European Community -- how most efficiently to harmonize the corporate law of an integrated political union. In the United States such harmonization has occurred from the bottom up, by way of the so-called incorporation or "internal affairs" doctrine. Under this doctrine, the laws of the state of incorporation of a corporation determine its validity and the extent of the rights and obligations of the participants in the corporate enterprise. Once determined to be valid in the state of incorporation, such an enterprise must be recognized as valid and permitted to operate as such in all other states in the United States. In contrast, most European states have embraced the "siège social" doctrine, under which a corporation, to be validly established, must be registered in compliance with all of the company laws of the state in which its primary operations are located. The Chapters also introduce students to the means certain states, notably, California and New York, have sought, with limited success to import the concept of "siège social" into the American corporate jurisprudence, as well as the ways in which the European Court of Justice may be incorporating the English model of corporate organization into the Constitutional Law of the European Union.

Chapter Six continues the study of the problems of corporate governance in integrated federal unions by considering the potential for and effects of the federalization of corporate law in the United States and the European Union. The first part of the chapter considers arguments for the federalization of American corporate law. The latter part of the chapter is taken up with a consideration of the sources of Community law affecting company law. Particular focus is directed to the characteristics and effects of EC Council directives and regulations to harmonize corporate law within all of the Member States.

Chapters Seven through Eleven provide four distinct and separable areas of comparative study of corporate governance. Chapter Seven introduces the student to issues of liability for the pre-incorporation obligations of the enterprise established, and the liability of the corporation for ultra vires actions. The chapter considers the imposition of this liability under two circumstances -- when the incorporators or promoters enter into agreement prior to the filing of the requisite documents which establish the existence, in law, of the corporation, and when people enter into contract or incur other obligations on behalf of an invalidly formed corporation. On the American side, the emphasis will be on general common law, with some consideration of the approach suggested under the Revised Model Business Corporation Act. On the European side, the chapter considers how the First and Second Council directives on company law harmonization treat these issues in the European Community. The nuance of Chinese and Japanese law round out the study.

Chapter Eight considers issues touching on state regulation of capital and capital requirements for companies. In the US, the emphasis will be on the approach taken by Delaware, a representative of the traditional approach to the maintenance of capital requirements. Consideration will also be given to the "modern" approach of the Revised Model Business Corporation Act, and the approach taken by California. Capital requirements form a far more important part of European and Japanese company law than it does in the US, and for reasons largely rejected as irrelevant in the US -- the protection of creditors and other strangers to the corporate enterprise. The chapter examines the attempts to harmonize capital maintenance requirements set forth in the Second Company Law Directive. China’s distinctive approach is also considered.

Chapter Nine takes up a study of a core value of enterprise organization in corporate form – limited liability for investors. Much of the law in this area in the United States remains a matter of state common law. The same can, to some extent, be said of the law in the Member States of the EU. Japanese law provides a nice example of the way in which reception of foreign law that is not culturally compatible can be reworked to achieve a harmonious result. The Chinese approach to limited liability, based on the appointment of a natural person to stand in the place of the corporate legal person, is unique and ties the study of this area more closely to earlier considerations of the effect of conceptions of legal personality on corporate governance. The Chapter highlights the different approaches to the application of the doctrines of disregard of corporate personality in cases of multi-corporate enterprises, that is, of enterprises operating through a series of related corporations.

Chapters Ten and Eleven take up another core area of corporate governance – the supervision and disciplining of a corporation’s managers and dominant shareholders. Chapter Ten explores judicial and legislative approaches to the regulation of managers. It starts with a review of the American common law and statutory approaches to the regulation of the conduct of managers. It then contrasts these rules of fiduciary duty with the more formal, but also more narrowly tailored approaches in Europe. The European approach is contrasted with the Japanese hybrid of American and European approaches. Chinese construction of a system of monitoring managers will then be considered. The principal focus will be on what is known in the United States as the duties of care and loyalty.

Chapter Eleven considers the special case of shareholder discipline. It considers the circumstances under which shareholder discretion with respect to her holdings are properly the subject of regulation or control by the state. The American fiduciary duty approach, adopted by some, but by no means all, of the states, is contrasted with the approaches of continental Europe and Japan. Particular attention is paid to the problems of shareholder regulation in states where the state has or had a dominant position in the economy. In this connection, the case the focus is on Russia as a transitional economy and the People’s Republic of China as a state still wed to the concept of state ownership of the means of production.

The Euro and the European Demos: A Reconstitution, 21 YEAR BOOK OF EUROPEAN LAW (England) 13 (2003).
PLEASE CONTACT AUTHOR FOR A COPY OF FULL TEXT OF THIS ARTICLE. The introduction of a single currency within most of the EU is an event with great practical and symbolic effect. For those hoping for the creation of a European state, these symbols and effects portend a move toward greater union, one step closer to federation. For others, the Euro portends a forced amalgamation of incompatible parts, a regression to a time within Europe before the passions of self-determination forged the current political map of Europe. This article examines two of the great criticisms of closer union. The first – that there is no singular people to be united within one ‘state.’ The second – that whatever the merits of union, the movement toward amalgamation is involuntary; union will not be a sovereign act of the people, but rather the culmination of a manipulation by powerful unseen actors within Europe to which people otherwise might be indifferent or opposed.

With respect to the first, the article posits that a European demos exits, that is, Europe is constituted as an amalgamation of related groups which together form an organic community sufficient for state formation. What has prevented recognition of the existence of this community has been the now tradition bound refusal to look realistically at community beyond current national borders. But Europe is at last moving toward common socio-cultural agreement on the level of Volk generality within which the communal elements of a state are to be found, one which includes continent, nation and tribe. The creation of a European Union began a process of changing common agreement about that place from the post-Reformation nation-state to a larger geography.

With respect to the second criticism, the article considers the effect of the ‘conspiracies of the elites’ theories on the integration debate. The essence of the second criticism is dependent on a successful deployment of culturally apocryphal and significant patterns of demonizing change or explaining events. These patterns, used effectively to destroy or marginalize ethnic, racial, social and religious minorities, have been resurrected to demonize both the process of constituting Europe as a meta-demos, and the acknowledgment of a living vitality of a European Volk. The arguments about the EU’s democratic deficit fall within this error by suggesting that union is illegitimate and inauthentic – an involuntary and artificial construct of anti-democratic elites.

Defining, Measuring and Judging Scholarly Productivity: Working Toward a Rigorous and Flexible Approach, 52 JOURNAL OF LEGAL EDUCATION – (forthcoming 2002).
This essay examines the debate on scholarship and scholarly activity by law school faculty. Focusing on flexibility, transparency and process, it offers a different model for judging a faculty member’s contribution to the scholarly mission of the profession. The essay first examines the context in which discussions of scholarship may occur. It then examines the way that discussion is skewed by other issues, principally the objectification of scholarship goals. The essay then sets out an alternative approach to the identification and measure of scholarship focused on faculty members as self-conscious contributors to learning rather than on the production of some narrowly defined object. The approach stresses a process-based system grounded in principles of transparency, self-reporting, self-evaluation, and the transmission of scholarship to others. The goal is to create a system that permits some flexibility in the form that scholarship can take, while maintaining a rigorous standard for judging that contribution. The essay splits that goal into eight parts that focus on (1) specificity, (2) measurability, (3) transparency, (4) personal effort, (5) outreach, (6) integration, (7) sharing, and (8) consistency.

Race, “The Race,” and the Republic: Reconceiving Judicial Authority After Bush v. Gore, 51 CATH. U. L. REV. 1057 (2002).
The federal Supreme Court opinions in Bush v. Gore cast in stark light the manner in which constitutional interpretation is preparing the way for constitutional transformation: a federalization based on devolution of authority from the central government to the states, a shift in interpretive authority from the state to federal courts, and a narrowing of what it means for a court to “say what the law is” with a resulting transfer of interpretive authority from the courts (and ultimately even the federal Supreme Court) to the political branches of the central government. These transformations are tinged with irony. The changes are being made possible by jurists who – though paragons of the strictest traditional interpretation of Constitutional norms – now embrace the philosophy of judging they have spent a lifetime fighting. Yet in their hands, the activist and evolutive jurisprudential philosophy utilized by the Supreme Court since the mid 20th Century is used to unmake the substantive results for which they were crafted. It seems, then, that the authentic heirs of the activist mantle of the Warren Court are those jurists who, though professing a desire to destroy the Warren Court’s legacy, have actually taken the work of the Warren Court to new heights, opening the way for another mutation of the Republic. In another ironic twist, the Bush cases are as much about the jurisprudence of racial revenge as it might be about the regulation of the election of the federal president. It’s lessons in that regard are both drawn from, and now constitute a part of, that growing jurisprudence in which the structure of government, the nature of our federal system, the scope of fundamental rights, the constitution of state government, the structure of the state, are all maneuvered like so many chess pieces in an infinitely complicated game of caste politics. Thus the ultimate irony in a game of institutional strategic moves within moves: per curiam, concurrence and dissents have made it possible for others, at their leisure, to find, within the arcana and lacunae of the Constitution, other places from which it can be divined that states and their governments, that courts and their judging, can be limited or controlled.

The Sarbanes-Oxley Act: Federalizing Norms for Officers, Lawyer and Accountant Behavior, 76 ST. JOHN’S L. REV. 897 (2002).
In response to a number of corporate scandals, the federal government enacted the Sarbanes-Oxley Act of 2002. The Act creates a framework for the oversight of the accounting profession and its practices by the government, imposes a number of certification requirements on corporate officers, restricts a number of corporate practices involving trading of securities by and loans to corporate officers, imposes reporting duties on lawyers, and provides protection for employees who disclose violations of law by corporate officers or directors. This paper explores some of the changes made by the Act in a practice context by discussing the way the Act might affect behavior in a number of business situations: people considering the offer of a position as a corporate officer; accounting firms seeking to perform audit and other functions for a corporate client; restrictions of loans to officers, including advances of fees pursuant to indemnification agreements; the adoption of financial codes of ethics; obligations of lawyers to report evidence of wrongdoing; the obligations of management to implement internal accounting and disclosure systems and to disclose wrongdoing; and protections for employees reporting wrongdoing; the new criminal penalties for wrongdoing by corporate insiders. The relationship of the provisions f the Act to state corporate law and the Act’s inconsistencies, traps for the unwary and unanswered questions are also explored.

Human Rights and Legal Education in the Western Hemisphere: Legal Parochialism and Hollow Universalism, 21 PENN STATE INT’L L. REV. 115 (2002).
There appears to be a trend towards convergence of individual human rights norms. Universal individual human rights has become an increasingly accepted part of the institutional norms of nations in the Western Hemisphere. Educators across the Americas have an important, perhaps critical, role to play in the internalization of universal individual human rights norms within the legal systems of the nations of the Americas. Law schools best serve this role by incorporating human rights education into the core curriculum in every law school in the region. But, the human rights mission of legal institutions in the Americas faces serious challenges, which are explored in this paper. In the United States, individual rights is still assumed to be a wholly endogenous product, the source of which is limited to federal and state constitutions. Human rights education is marginalized, confined to the ghetto of specialization within the fields of international and comparative law. In Latin America, the opposite is true. Human rights is taught, but as the universalizing product of exogenous origin and control. The rich human rights traditions of Latin American nations are marginalized. The result is the construction of a rights edifice that is foreign, a hollow internationalism. Nevertheless, the problem of legal parochialism and hollow universalism can be overcome and the paper concludes by offering some examples and suggestions of methods by which this process can be started.

Forward: Constituting Nations – Veils, Disguises, Masquerades, 20 PENN STATE INT’L L. REV. 329 (2002).
The instrumentalities of law, like those of theory and philosophy, have been used both to cloak and unmask the relationship between authority and power. The instrumentalities of constitutionalism and self-determination have been used to constitute nations where none had existed before and burst apart others that had thought themselves whole and complete. In the face of these disjunctions between the law as formulated and the law as practiced, between what is seen and what is felt, between what occurs and what is believed, many choose to remain comfortably within the postulates and assumptions from which the law springs. Much of what passes for the study of law in the United States assumes the answers to the difficult foundational questions, so that time can be spent worrying about the most efficient means of enforcing those assumptions through law, or investigating the utility of law to serve the assumptions. This essay examines three articles by John Strawson, Patrick Hanafin and Barry Collins that provide a window behind the veil of law, constitutionalism and nation creation. The subjects of their study – Ireland/Northern Ireland and Israel/Palestine – stand at the psychological core fo Western legal and political theorizing since the middle of the 20th century. Each paper focuses on the for the most part Western exercise in critical self-examination, ripping veils of misdirection in the constitution of systems of governance or ideas of the nature and extent of the constitution of nations.

Religion and the Discursive Language of Same Sex Marriage, 30 CAPITAL L. REV. 221 (2002).
The debate over the availability of the institution of marriage to couples of the same sex, like that over the regulation of abortion, has reached the point of exhaustion. Everything that can be said has been said, everything that can be done has been done. And yet, there is no victory fo either side of the debate. For advocates of same sex marriage, this state of affairs is particularly distressing. Once confident of carrying the country after decisions in Hawaii, Alaska, and Vermont, appeared to eliminate legal barriers to same sex marriage, these advocates now again confront the reality of deep division relating to the extension of the dignity of marriage to couples of the same sex. Opponents of same sex marriage work towards their goal with renewed vigor, backed by a reinvigorated political establishment peopled by those who find the notion of same sex marriage revolting, and a language of religious discourse that is finding increasing favor within the American polity. Faced with this dynamic and unfavorable political reality, advocates have been forced to renew tired arguments or satisfy themselves with an unfavorable, and unstable, political settlement such as the civil unions of Vermont. This paper explores the nature of the exhaustion of argument about same sex marriage. It suggests that fatigue is a product of an aversion to an embrace of the most powerful weapon in the arsenal of traditionalists – religion, religious discourse and religious community – in the service of marriage between all affective couples. The road to the legitimization of same sex marriage lies through the work of emerging communities of faith and their religious discourse. In a deeply religious land, only acts of faith that embrace as an article of that faith the marriage rights of people of the same sex, can effectively respond to the arguments of other communities of faithful. The article ends with a proposed plan of action for the maximum effect of the new religions in carving a space for same sex marriages.

General Principles of Academic Specialization By Means of Certificate or Concentration Programs: Creating a Certificate Program in International, Comparative and Foreign Law at Penn State, 20 PENN. STATE INT’L L. REV. 67 (2001).
Specialization in legal education, like late in private practice, has become more pronounced. Law schools have responded to the specialization trend by instituting programs leading to the award of post-J.D. degrees, primarily the LL.M., and by providing for recognition of specialization as part of the J.D. course of study through certificate or concentration programs. This article uses a case study – the presentation of a certificate program in international, comparative and foreign law at Pennsylvania State University’s Dickinson School of Law in 2001 – as a basis for analyzing these emerging programs of concentration and to demonstrate why these programs should be promoted where appropriate. The article explores the basis for specialization within law school curricula. It then explores the basic characteristics of the fields of international, comparative and foreign law which form the basis of the certificate program of the case study. Within that context, the author elaborates eleven general principles for the creation and implementation of certificate programs. These principles are then applied to assess the value of the proposed certificate program at Penn State as an example of the way the principles can be used to assess any certificate or other program of concentration.

The Extra-National State: American Confederate Federalism and the European Union, 7 COLUMBIA JOURNAL OF EUROPEAN LAW 173 (2001).
This article examines the ways in which John C. Calhoun’s theories of federalism, suppressed in the United States after the American Civil War, now shape the European debate over the nature of the political organization of the European Union. Much of the work on the ‘lessons’ of American federalism for the European Union and other supra-national systems have been based predominantly on an understanding of post Civil War American federalism. It remains, on that account, extremely superficial. The more important lessons of American federalism are to found in Calhoun’s marginalized understanding of federalism. This alternative vision of the possibilities of federal organization may yet provide emerging supra-national unions, the most important of which is the European Union, with a powerful conceptual foundation for the construction of non-national federal systems of government. For this effort, the theories of multi-state association rejected in nineteenth century America may prove extremely forward-looking in the twenty-first century world of small ethnically homogenous communities and large pluralistic super-unions. The article first considers the federalist theories of John C. Calhoun in the context of the early American conversation about federalism. It then considers the emerging European reprise of this American conversation. The European Union has restarted a conversation about the nature and elasticity of federalism which was cut off in the United States in 1865. I begin with a review of the European version of federalism orthodoxy emerging from out of the jurisprudence of the European Court of Justice and the elaboration of this orthodoxy in the projects of the Institutions of the European Community, drawing parallels with the development of the American orthodox position. I then examine the way this new orthodoxy is being challenged within the European Union in a way that mirrors the challenge to American orthodoxy before the Civil War. I then suggest parallels between the emerging European and the earlier American conversation about nation-building through the application of federalism principles. European ‘Hamiltonian’ nation-builders too easily dismiss the importance, and perhaps the permanence, of the nation-states of Europe. The states rights camp seek to hide, by resort to legal formalism and technicalities, from the reality that Europe is drifting towards union. The intellectual community engages in this absurd mimicry even as it falsely assumes the unchanging nature of American federalism or dismisses as substantially irrelevant the historical genesis of American federalism and the consequences of the early American struggles. The blindness of both camps, like those of American antebellum thinkers, seriously impedes the task of European union making, and ignores the political and economic realities emerging within Europe, with potentially disastrous results. I end with suggestions for a Calhounian solution to the problem of European political organization.

Inscribing Judicial Preferences into Our Basic Law: The Political Jurisprudence of European Margins of Appreciation As Constitutional Jurisprudence in the U.S., 7 TULSA COMP. & INT’L L. J. 327 (2000).
Both U.S. and European courts have applied general principles of law in the construction of their constitutional jurisprudence. The European courts have engaged in this practice explicitly – the American courts implicitly. This essay examines the ways in which European and American courts have applied a problematic general principle of law, the general principle of “margin of appreciation.” The margin of appreciation is essentially a rule of deference, permitting states a certain discretion “to decide whether a given course of action is compatible with” Constitutional requirements unless such discretion departs from a generally accepted consensus of the community. The margin of appreciation principle is a European innovation. I argue here that what appears to judges like Justice Scalia to be a variant of the common law sin, in matters of constitutional interpretation, of permitting unelected judges to decide what the law is may instead evidence the development of an American variant of the civil law general principle of margins of appreciation. Ironically, the end result may not be different results in particular cases, but a more principled basis for reaching these results. This essay first defines the pragmatic American approach to the problem of politics in constitutional construction. Assuming that what appears to be a judicial debate about the propriety of the imposition of ‘political’ judicial solutions to particular problems is instead, a struggle over the application of a general principle of deference, a margin of appreciation, to state action, the article considers the development of the doctrine of margin of appreciation in Europe. It ends by recasting two American Supreme Court cases, Bowers v. Hardwick and Romer v. Evans, in margin of appreciation terms, provides a more principled basis for understanding the weaknesses of the former and the strengths of the latter.

Measuring the Penetration of Outsider Scholarship in the Courts: Indifference, Hostility, Engagement, 33 U.C. DAVIS L. REV. 1173 (2000).
In this essay I test the theory that current legal scholarship, and especially the “outsider” scholarship of people of color, is either shunned or demonized in the courts. I look at the reception of outsider scholarship in the courts because courts, along with legislatures, are the two formal institutional vehicles for “altering the existing legal landscape,” in the United States. The article first examines the ways in which state and federal courts have cited a representative number of legal academics who are said to epitomize major strands of critical legal studies, minority and feminist scholarship being produced in many law schools today. The initial focus is on rates and quality of citation. This examination revealed that most of the work, though valued by law school academics, is virtually ignored by judges. To the extent that the work is not ignored, it tended to be used as examples of threats to the legal order or as irrelevant. The article then examines the reasons courts have failed to use this body of scholarship in a more positive manner, and suggests some of the ways in which the scholars themselves bear some responsibility for judicial indifference to their work.

Chroniclers in the Field of Cultural Production: Interpretive Conversations Between Courts and Culture, 20 B.C. THIRD WORLD L.J. 291 (2000).
My purpose in this paper is to explore the nature and process of norm making within culture as it is expressed through what we identify as “law.” I do so by focusing both on law as an expression of cultural standards/models/patterns regarded as mandatory, both large and small, and on courts as a place from which these standards are articulated. My object is twofold. First, I mean to interrogate the commonplace notion that law is something that "acts on" culture--that law disciplines culture. Second, I posit that, contrary to a most cherished delusion especially among so-called progressives, neither our common-law nor our courts nor our legislatures can serve as the engines producing any sort of coercive law which can transform these standards/models/patterns. I begin by discussing the role of courts as the institution which identifies and memorializes norms in the form of law. The primary functions of courts are to identify cultural practice and then to memorialize that practice as law. Juridical expressions of law are essentially descriptive; their pronouncements cannot, of themselves, coerce cultural practices. As such, law is an enterprise of affirmation. Courts are the great vehicle for the performance of cultural aesthetics on a perpetually grand scale. I then explore the identification-memorialization process in two contexts. The first context is that of the European Court of Human Rights' margin of appreciation jurisprudence and the second is that of the construction of general principles of community law by the European Court of Justice. Identification-memorialization engages the courts in the process of cultural production to the extent that courts speak or provide a site for the articulation of the authoritative.

The culturally evocative voices which a court uses to speak are then explored. These voices – the Homeric, Delphic and Jobian cacophony – describe the complex and dynamic interactions between law, courts and culture. As such, courts function as a discordant and polyphonic cultural choir. From out of this choir will come articulations, more or less authoritative, more or less temporary, and more or less clear, of the cultural reality in the form of rules and consequences for breaking taboos. Courts also and simultaneously serve as a site for the contestation of authority in voice. To the victor of these struggles belongs a greater authority to convincingly pronounce those standards/patterns/models of the normal which may be enforced by the countless disciplines marshaled by society for that purpose. I end by suggesting some complexity to the simple aesthetics of norm and authority I describe. Complexity and ambiguity follow from our understanding that courts may speak simultaneously in multiple voices. Neither society nor “law” provides an unimpeachable arbiter of these voices. Society can never know for sure which voice speaks “truth,” even momentary “truth.” The last level of complexity I suggest is that culture must be understood in the plural, even when the institutions of cultural production are conceived in the singular. The culture with respect to which courts engage share space with multiple competing cultures. The struggle over the authority of one culture to speak for the others through the institutions of formalized power with competence of the geography shared by multiple cultures suggests a complex and dynamic interaction which in turn affects the quality of the authority of courts to speak.

Disciplining Judicial Interpretation of Fundamental Rights: First Amendment Decadence in Southworth and Boy Scouts of America And European Alternatives, 36 TULSA L.J. 117 (2000).
decadence. The characteristics of this decadence is much in evidence in the constitutional jurisprudence of the American Supreme Court: judicial arbitrariness, the use of interpretive doctrine as an end rather than a means, disregard of existing interpretive doctrine and hyperdistinction of fact, doctrine as a smokescreen for personal preference, and an inclination to permit the juridification of everyday life. Indeed, these characteristics of decadence are made worse by a bloated and ill-defined catalogue of interpretive doctrine that veils all distortion of constitutional principle in the service of personal politics. Here is a jurisprudence in decline, increasingly noted more for arbitrariness than principle. This article examines the latest example the modern phenomenon of jurisprudential decline through an analysis of two First Amendment cases decided during the American Supreme Court’s last term. It then looks to the French and German systems of constitutional review, and the jurisprudence of the European Court of Human Rights to determine whether other systems provide translatable lessons for a more effective and democratically based supervision of the interpretive function of the American Supreme Court.

Some Thoughts on The American Declaration of Independence and the Irish Easter Proclamation, 8 TULSA J. COMP. & INT'L L.87 (2000).
In this essay I suggest that The Irish and American Republics do themselves a great injustice to concentrate on their declarations of principles to the exclusion of the social and political covenants that they have created as the foundation stones on which they have built our democratic, humane, and tolerant societies. Yet, documents like the American Declaration of Independence and the Easter Proclamation of 1916 tend to get all the attention. The celebrations of the American 1789 Constitution or the Irish 1937 Constitution remain mooted indeed. I believe there should be less celebration of declarations of independence and more celebrations of the constitutional norms that represent the rich fruit of those declarations. In truth, we must celebrate our great good fortune that those who were charged with the construction of our political structures chose wisely among the political options that each declaration permitted. The essay explores the reasons why both the American Declaration of Independence and the Easter Proclamation have been used as a sword and shroud by those brothers and countrymen who would invoke their principles to support absolutely contrary positions.

There Can be Only One: Law, Religion, Grammar and The Organization of Society in the United States in LAW AND RELIGION: A CRITICAL READER, 425 (Stephen M. Feldman, ed., 2000).
The primary purpose of this essay is to understand the relationship between law, religion and grammar, and the manner in which those relationships are directly dependent on the choice every society makes as to which among them is to serve the principal basis of its social ordering. The basic building blocks of social ordering – law, religion, and grammar – all share the singular property of creating basic rules which can operate as a social common sense, that is, which can function on the social body like the autonomic nervous system functions in the human body. Though all three exist in every society, each society must choose one of them as the basis for its social ordering. In the United States that ordering is now the function of law, with Religion and grammar accorded subordinate dignity. The Federal Constitution creates the grammar in which law “rules” as a formal matter over a system whose underlying structure is founded on Religion. Religion and Law are Incompatible as Joint Social Structuring Forces. Though each can be accorded great dignity, only one of them can serve as the source of social order. Religion IS Different; it can never be merely another basis for grounding law because it has been and remains a primary basis for ordering society. In the West, Religion is imprisoned in its own history and by the consequences of the society it constructed. Law triumphs only in places of religious diversity; Religion remains foundational in places where one law and one religion are dominant or where one religion is dominant in a space subject to overlapping systems of law; grammar triumphs only where multiple systems of law and Religion co-exist.

Altheimer Symposium on Racial Equity in the 21st Century: Culturally Significant Speech: Law, Courts, Society and Racial Equity , 21 U. ARK. LITTLE ROCK L.J. 845(1999).
Even a modest goal of racial equity that looks to the amelioration of the negative economic, social and political effects of the racial difference our society embraces has eluded several generations of litigators and lawmakers. This paper looks to the interaction of law and culture for an understanding of this failure. It suggests that only by acting in culturally significant ways can there be an effective conversation about race equity. Culturally significant speech is comprised of three elements, pain (sacrifice), power (cultural voice), and time (institutional incorporation), the effective use of which determines our perception of differences and sameness, of fairness and unfairness, of inclusion and exclusion, of toleration and suppression. The paper ends with a consideration of the means through which it is possible to speak in culturally significant ways in contemporary America.

Toleration, Suppression and the Public/Private Divide: Homosexuals Through Military Eyes, 34 TULSA L.J. 537 (1999).
The essay examines the limits of the liberal model of toleration, the way in which it enforces the lines drawn between difference, which is tolerated, and deviance, which is suppressed, through the example of the American military’s “don’t ask/don’t tell” scheme. The military, like liberal society, makes room for difference by confining difference to those private social spaces it is willing to tolerate. While the differences between “progressive” and “traditionalist” is great, it is still merely one of degree. The basic postulates of the closet are accepted. Sexual subterfuge on the part of sexual non-conformists is the order of the day. The cases in which men and women have been separated form service on grounds of their sexual non-conformity provide a vivid if poignant picture of the boundaries that liberal toleration has drawn for our society. The implications of the public/private binary and its corollary--that public expressions of "being" is another form of "doing"--reach their limit in the military context. The essay then considers the cases brought by gay men and lesbians under the don’t ask/don’t tell policy. Though much of the case law is couched in the formalistic language of status and conduct, the real boundaries of toleration are formed by the public expression of acts which are offensive when the institutions of dominant society are required to publicly acknowledge them. This is the point at which society will tolerate prejudice and accommodate offense. The military cases make that evident.

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 INT’L L. REV. 1331 (1998).
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 HISP. J. L. & POL’Y 7 (1998).
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. CAL. INTERDISCIPLINARY L.J. 611 (1998).
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 MARQ. L. REV. 229 (1998).
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 L. J. 347 (1998).
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.

Queering Theory: An Essay on the Conceit of Revolution in Law, in LEGAL QUEERIES 185 (Leslie J. Moran, et al. eds., 1998).
This essay critically examines the emerging discipline of ‘Queer’ theory. It is meant to challenge evidences of a messianic temptation of revolutionary transformation within strains of Queer theory. At the heart of the analysis is the understanding that any theory of perfectionism ultimately carries with it a foundation for subordination. In connection with Queer theory, the evolving language which the article identifies as ‘revolutionspeak’ mimics the dominating force it seeks to replace with something very much like the system of subordination challenged. The circularity of modern revolutionary theory thus runs the risk of identification with the very normative foundational framework it seeks to overcome. The article argues that this is demonstrated through an essentializing of the dominant discourse of heterosexualism. In place of this, the article offers a dynamic and anti-utopian theory of subversive calumny: a critical realism for modern times imbued with a capacity for irony and indeterminacy, in which modulation and revaluation replace the myth of revolution and cultural repose.

The Many Faces of Hegemony: Patriarchy and Welfare as a Women's Issue (reviewing MIMI ABRAMOVITZ, UNDER ATTACK, FIGHTING BACK: WOMEN AND WELFARE IN THE UNITED STATES (1996)), 92 NW. U. L. REV. 327(1997).
The article explores the fundamental conservatism of the debates about welfare reform, by considering the conservatism inherent even in the arguments of so-called political liberals. It then draws on that analysis to understand how the welfare debates mirror the current debates over the necessary minimum amount of social conformity we expect in our society and the means we are prepared to use to enforce this minimum. It then begins an exploration of the place of critical and so-called radical scholarship in the effort to bring about welfare change. The focus of this analysis of the standard, if unconscious conservative conventionality of modern welfare discourse is the book by the well known liberal-feminist academic, Mimi Abramovitz, Under Attack, Fighting Back: Women and Welfare in the United States (1996). Professor Abramovitz's book explores the ways in which legislatures and society have enforced the work and family ethic on women through welfare programs, how academic theory has helped provide women with a means of understanding the oppressiveness of such constructions, and how women ought to take political action to transform the current reality of welfare as a means of dismantling patriarchy and capitalism. My review explores the limitations of Professor Abramovitz's program of theory driven pragmatics in the service of women. I suggest that embracing the notion of welfare as a woman's issue requires acceptance of the core underlying norms of patriarchy, and that the current welfare setup cannot be used successfully to end the poverty of women in this society. For even were women to be able to use the largesse of the current system to overturn it, they would gain nothing more than the power to impose a different system of tyrannies of conformity.

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, 4 LOY. POVERTY L. J. 1 (1997).
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.

Narrative and Jurisprudence in State Courts: The Example of Constitutional Challenges to Sex Conduct Regulation, 60 ALB. L. REV. 1633 (1997) (Annual State Constitutional Law Commentary Issue).
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).

Book Review, 6 SOCIAL & LEGAL STUDIES 455 (1997) (Eng.) (REVIEWING, CARL F. STYCHIN, LAW'S DESIRE: SEXUALITY AND THE LIMITS OF JUSTICE (1995)).
Assessing Carl Stychin construction of what the reviewer describes as -- a kinetic theory of cultural identity. Stychin is among an emerging group of queer poststructuralist thinkers who have begun to probe the very basis of social organization through an examination of what appears at first blush to be the manicheaen universe of homo-hetero sexualities. Stychin seeks, at this early stage in the development of poststructuralist queer theory, to facilitate a dialogue between the sexualities as well as within the sexualities constituted and regulated by/through law. That dialogue is certainly necessary, and the manner in which Stychin frames it is quite useful. Law is important as a site for the constitution, consolidation and regulation of sexuality, as well as a site for the deconstruction of the basis of this regulation. By situating that dialogue within law, Stychin hopes to create a space within the necessarily incomplete regulatory expanse of law to resist and oppose sexual hegemony -- every kind of sexual hegemony.

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

Harmonization, Subsidiarity and Cultural Difference: An Essay on the Dynamics of Opposition Within Federative and International Legal Systems, 4 TULSA J. COMP. & INT'L L. 185 (1997).
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.

Reading Entrails: Romer, VMI and the Art of Divining Equal Protection, 32 TULSA L. J. 361 (1997).
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.

“Pitied But Not Entitled”: The Normative Limitations of Scholarship Advocating Change, 19 W. NEW ENG. L. REV. 59-66 (1997).
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.

Inventing a “Homosexual” for Constitutional Theory: Sodomy Narrative and Antipathy in U.S. and British Courts, 71 TUL. L. REV. 529 (1996).
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 L.J. 391 (1996).
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 L. REV. 1.
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 L. J. 447 (1996).
From my perspective, then, 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 -- dependant 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.

Welfare Reform at the Limit: An Essay on the Futility of "Ending Welfare as We Know It," 30 HARV. C.R.-C.L. L. REV. 339 (1995).
On June 14, 1994, President Clinton announced an "end [to] welfare as we know it . . . to change it from a system based on dependance to a system that works toward independence . . . to change it so that the focus is clearly on work." Introduced as the Work and Responsibility Act of 1994, the reform failed to become law. During the early part of 1995, the Republican controlled Congress introduced its own version of radical welfare reform, the Personal Responsibility Act of 1995. My purpose is to demonstrate that neither reform changes anything. I go further: these reforms (or for that matter any politically and socially acceptable substitute for it) can not be formulated in a manner that would change anything. Both the substance and rhetoric of all viable poor relief reform must fall squarely within the limited ambit of the paradigmatic vision of poverty and welfare which has guided thinking in Western Europe and the United States since the early Middle Ages. The critical assumptions about society, the poor, and the proper role of each, subsumed under notions of what I call the static paradigm, substantially limits the conceptual framework within which poor relief reform is considered: the able-bodied must work, the able-bodied could find work if they sought it, sustained unemployment is an individual failing, sustained unemployment is a dangerous form of social and economic deviance that poses a threat to social stability. Examined under these constraints, the "liberal" and "conservative" reform proposals, as well as the current Great Society system of categorical relief, all can be said to take "welfare" to its limit. Beyond these confines reform is practically inconceivable. I use Part I of this essay to describe the foundationalist context in which these reforms were spawned. Parts II though VII examines the current Democratic and Republican reform proposals in light of the foundationalist assumptions of the static paradigm. I examine the ways in which welfare reforms reproduce the social hierarchy within the recipient population (Part II). I then explore the necessity for disjunction between funding and needs, the uses of implementation delay as a means of cost minimization and the efficiency of cost shifting and quality control as a means of minimizing institutional relief burdens (Part III). I thereafter probe the ways in which poor relief is used to punish deviance from accepted cultural norms by examining the ways in which the reforms manipulate eligibility and need rules (Part IV), the ways in which the reforms emphasize work (Part V), the traditional family, and control of anti-social behavior generally (Part VI). Lastly, I examine the reasons why poor relief reform necessarily ignores issues of race, gender and ethnicity. Our foundationalist thinking functions like tinted blinders, cutting our vision of phenomena and rendering us unable to see facts that cannot be reconciled with the core assumptions of the paradigm on which we base our economic and social order. We tend, therefore, to be indifferent to issues of race, gender and ethnicity in the poverty context because we assume these issues away before we begin the analysis. Moreover, our social judgments about women, our expectations of their sole in society, and our desire to police these roles, inevitably results in a system that encourages approved behavior. Our vision of poor relief reform is necessarily limited. It exists within the limitations of our social structuring which permits difference only over the amount of wealth to be made available to the destitute and the means by which we intend to impose our social norms on the recipients. This is as true of "liberals" as it is of "conservatives." For those who view traditional cultural taboos as evil, and who desire to impose a different set of cultural norms on society, this article may well provide an indictment (to the extent of the discomfort with traditional cultural norms) of the feebleness of legislative reform and the hypocrisy of the rhetoric of reform. On the other hand, for those who share, or want to share, the traditional values represented by the assumptions of the static paradigm, the article may well provide evidence of the necessity of harshness in the treatment of non-conformists and a more efficient means of maximizing the effectiveness of limited purpose poor relief.

Medieval Poor Law in Twentieth Century America: Looking Back Towards a General Theory of Modern American Poor Relief, 44 CASE W. RES. L. REV. 871 (1995).
American systems of poor relief are both a product of, and limited by, a precisely definable set of critical and fundamental assumptions which this article describes as the static paradigm. The article first identifies and explores the critical assumptions and principles of the static paradigm. It then lays out a general theory of American poor relief. The General theory is then contextualized by examining archetypal Anglo-American poor relief, ecclesiastical poor relief and the Elizabethan Poor Law, in light of the theory. The characteristics of state run systems of general relief are examined in light of the theory. In particular, the systems of American general relief can best be understood by certain characteristics: (1) the categorization imperative; (2) the relationship of categorization to Aid; (3) the drive To quarantine the destitute: separation, isolation, self-containment, and local administration; (4) the right to relief generally and to specific forms of relief; (5) the obsession with cost. Within the context of the static paradigm, change can be understood as gesture: "Reform" functions as the means by which society inflates the language of system reform in order to appear to implement lofty goals (the eradication of poverty) by recharacterizing traditional approaches as new, untried, or otherwise divinely inspired. Our reality is described by the general theory. Current systems of general assistance in the United States are demonstrably static. They are also strikingly similar to each other in basic conception and implementation, as well as to those dusty and irrelevant old systems each claimed to displace. The three systems seem to share a fondness for an understanding of poverty in cultural terms. This makes judgments of deviance and relative worth easy to make and easier to defend at the level of the unconscious. As long as the basic assumptions of the static paradigm itself remain unquestioned, there is unlikely to be anything substantially different in the manner in which our society anytime soon. As such, for those uncomfortable with the message and implications of stasis, for those who actually believe the rhetoric of poverty, the picture is, therefore, quite gloomy.

Punishing Frivolous Appeals and Staying Executions of Judgments After Enactment of H.B. 1468, in APPELLATE PRACTICE AND PROCEDURE (OU-CLE publication 1994).
This paper considers in detail the changes to the rules of appellate procedure effected by changes in the law effective after 1993. The paper concentrates on two changes to the rules of appellate procedure thus effected: (a) suspensions of the effectiveness of judgments pending appeal, and (b) frivolous appeals.

Exposing the Perversions of Toleration: The Decriminalization of Private Sexual Conduct, the Model Penal Code, and the Oxymoron of Liberal Toleration, 45 U. FLA. L. REV. 755 (1993).
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 AM. J. CRIM. L. 37 (1993).
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 B.C. L. REV. 997 (1993).
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 L.J. 65 (1993).
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.

Notice about Fair Use: This is an educational web site. It is intended primarily for use by my students at the Pennsylvania State University, Dickinson School of Law. It is also generally intended for use by students and faculty from other institutions, and members of the judiciary. As an open site, the materials I have posted are available to others as well. I am glad to share these materials with anyone interested enough to read them. However, nothing in the web site is intended to solicit private legal inquiries or to provide legal counsel or legal advice to anyone accessing the materials. Visitors to this web site are welcome to share their thoughts with me. However, I may not be able to respond individually to every communication.