“Civil Wars: Stays of Execution, Appellate Sanctions, and the Nature of Consensus on the Utility of Appellate Review,” 29(1) Tulsa Law Journal 65-167 (1993)
Abstract: Civil appeals involve a balancing of the costs of appealing a determination of a lower court against the probability of reversal, modification, or affirmation at the appellate level. The rules of appellate procedure affect this calculation, and, in that manner, affect the substantive outcomes of litigation in a number of respects. This article examines two variables in the calculus of appeal: 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. Each can be used to heighten the judgment-deadening effect of the other. The recent amendments to the civil appellate rules in Oklahoma respecting suspensions of the effectiveness of judgments pending appeal and frivolous appeals 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 from three perspectives, each based on the underlying issues and problems set forth in the Introduction and in Part I. Supersedeas, Frivolousness and the Utility of Appeal. Although related, the analysis of
each perspective can stand alone.
PRACTICAL PERSPECTIVE. The first perspective, set forth at Part II., focuses on the practical ramifications of change to appellate procedure based on the 1993 changes to the Oklahoma civil appellate rules of supersedeas and frivolous appeals. 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.
STRATEGIC AND THEORETICAL PERSPECTIVE. The second perspective, set forth at Part III, Consensus, Complexity and House Bill 1468, explores on a more theoretical level, the changes to civil appellate rules of supersedeas and sanction for frivolous appeal. It provides a stategic analysis of the direction and utility of changes to civil appellate practice rules from both a systemic and participatory view. It argues that these changes do little more than create complexity and ambiguity which result in an increasing sense of unfairness which may affect substantive determinations.
PARADIGMATIC PERSPECTIVE. The third perspective, set forth at Part IV, 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.
“Of Handouts and Worthless Promises: Understanding the Conceptual Limitations of American Systems of Poor Relief,” 34(5) Boston College Law Review 997- 1085 (1993).
Abstract: This article examines the limitations, conscious and unconscious, on the reform of contemporary modes of assistance to the poor in the United States. My primary purpose is to delineate this nation’s underlying paradigm of poor relief. I argue that the functional parameters of poor relief in the United States form a coherent world view which I describe as the static paradigm.’ The basic assumption of this paradigm is that neither the mores and attitudes of the recipients of aid, nor the social and economic systems which produced indigents are subject to fundamental or permanent change. From this paradigm I derive theories to explain and describe the limitations of acceptable reformulation of institutional systems of poor relief. These theories are intended to be descriptive as well as prescriptive. They facilitate an understanding of the assumptions underlying this country’s approach
to public aid, as well as the practical limitations to the reformulation of our country’s current approach to the servicing of its poor. It also serves to point the way to possible reforms of that system. I use Part I of this essay to place the nature of my inquiry in context. The bulk of Part II discusses the social context in which the problems of the poor exist. Part III sets out the parameters of the static paradigm. The paradigm provides the (mostly unconscious) postulates and critical assumptions which govern the fundamental ordering of systems of institutional poor relief in the United States.
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“Raping Sodomy and Sodomizing Rape: A Morality Tale About the Transformation of Modern Sodomy Jurisprudence,” 21(1) American Journal of Criminal Law 37-125 (1993)
Abstract: This examination of sodomy follows the transformation of consensual sodomy from a crime of moral deviance or mental disease to one of coercion, and on sodomy’s merger into the traditional crime of rape. Part 1 sets the stage by describing the notion of sodomy in the criminal law as a crime used as a catch-all proscription of violations of religious sexual conduct taboos. Part 2 begins the focus on the state of Oklahoma and the state judiciary’s nearly century-long struggle to give content to classical sodomy as the “detestable and abominable crime against nature, committed with mankind or with a beast.” First tracing the genesis of the classical definition of sodomy, Part 2 then explores the manner in which the courts have transformed classical sodomy in the last quarter of the 20th Century. Part 3 analyzes the transformation of the underlying basis of sodomy jurisprudence over the last century. Part 4 applies the transformative notions underlying criminal sodomy to scrutinize the increasing emphasis on coercion that has begun to reshape sodomy into the quintessential crime of coercion – rape. Part 5 offers an appraisal of the effect of this century-long sexual game played between the State and its citizens, what it might portend as States transform their notions of sodomy into a distinct subspecies of rape, and the moral that it might hold for jurisdictions still tampering with sodomy. Part 6 concludes the article and discusses Oklahoma’s proposed legislation in the area of sexual crimes.
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“Exposing the Perversions of Toleration: The Decriminalization of Exposing the Perversions of Toleration: The Decriminalization of Private Sexual Conduct, The Model Penal Code, and the Private Sexual Conduct, The Model Penal Code, and the Oxymoron of Liberal Toleration Oxymoron of Liberal Toleration,” 45(5) Florida Law Review 755-802 (1993)
Abstract: Considers the nature of toleration as a means of developing legal protection for sexual non-conformists by examining the key developments of justification for de-criminalization of sexual conduct in private in the U.S. (the ALI Model Penal Code Project) and the U.K. (the Wolfenden Report) from the late 1950s. The article suggests that current notions about protecting society from offensive conduct are fundamentally incompatible with freeing consensual sexual conduct from criminal regulation. The analysis starts with an examination of reform regulation as a function of the theories used to justify reform. It then examines the flow of the common statutory reality-the manner in which private conduct has been “deregulated” but “public” conduct has been “reregulated.”