Volume 75, Number 5

November 2000

No Promo Homo: The Sedimentation of Antigay Discourse and the Channeling Effect of Judicial Review

William N. Eskridge, Jr.

John A. Garver Professor of Jurisprudence, Yale Law School. B.A., 1973, Davidson College; M.A., 1974, Harvard University, J.D., 1978, Yale University.

Arguments against equal rights for gay men, lesbians, bisexuals, and transgendered people have shifted from, “Those are bad people who do sinful, sick acts,” to “A progay reform would promote homosexuality.” Professor Eskridge’s article presents a history of this rhetorical shift, tying it to the rise of a politics of preservation by traditionalists seeking to counter gay people’s politics of recognition. Eskridge also shows how modern antigay discourse has become sedimented, as arguments are layered on top of (but never displace) each other. Evaluating the various forms no promo homo arguments can take, he maintains that the most obvious versions are not plausible, and that the most plausible are not constitutional. This archaeology of no promo homo discourse has interesting ramifications for constitutional theory and doctrine. Among then, as Eskridge concludes, is the way in which the channeling function of law not only changes group rhetoric, but also group identity, and helps the state “manage” polarizing culture clashes.

Punishment, Postgenocide: From Guilt to Shame to Civis in Rwanda

Mark A. Drumbl

Assistant Professor, Widliam H. Bowen School of Law, University of Arkansas at Little Rock; Adjunct Assistant Professor of Law, Columbia University; B.A., 1989, McGill University, M.A., 1992, Institut d’Etudes Politiques de Paris/McGill University; LL.B., 1994, University of Toronto; LL.M., 1993, Columbia University.

Following the 1994 Rwandan genocide, national and international trials set out to encourage national reconciliation, promote peace, punish perpetrators, foster a culture of human rights, and effect justice. In this Article, Professor Mark Drumbl questions the ability of these trials to achieve these goals and suggests they may in fact aggravate ethnic identify politics, thereby threatening Rwanda’s long-term stability. He argues that the highly interdependent yet dualist nature of Rwandan society, together with the widespread level of participation in and victimization by the genocide, create a situation where accountability for the violence and the deterrence of future violence can be pursued more effectively through the restorative cultivation of shame, rather than through the retributive imposition of guilt. Although criminal sanction usually attaches to deviant conduct, participation in genocide in Rwanda was not particularly deviant nor was it an individualized, pathological transgression. Professor Drumbl asks whether there might be times and places where collective wrong doing needs to be exposed and not hidden by the law’s preference for individual fault. Despite the concerns that ought to be emerging from the Rwandan experience, international lawyers continue to push-with significant degrees of success-for selective criminal prosecution as a preferred, and potentially exclusive, response to mass atrocity. In contrast, he suggests that creating presumptions in favor of criminal trials may preempt the supervening inquiry about the suitability of those trials to the afflicted society. Professor Drumbi concludes that policy responses to mass atrocity should be founded upon contextual inquiries, not driven by globalitarian or legalistic agendas, and should recognize the uniqueness of each incident of mass atrocity and the uniqueness of the reconstruction process that should follow, instead of flattening that uniqueness. This may lead to a preference for flexible, polycentric responses within and outside of what may be customarily identified by the West as the “law.”

The Revolution in Welfare Administration: Rules, Discretion, and Entrepreneurial Government

Matthew Diller

Professor of Law, Fordham University. J.D., 1985, Harvard University.

In this Article, Professor Diller examines the tremendous changes in the administrative structure of the welfare system that have occurred since 1996. The new administrative model emerging from welfare reform eschews reliance on rules and instead invests ground-level agency personnel with substantial discretion. This shift redistributes power between welfare recipients and administrators. Central authorities continue to maintain control by channeling the discretion that ground-level officials exercise in order to achieve particular outcomes. This channeling takes place through a variety of means, including performance-based evaluation systems and efforts to redefine the institutional culture of welfare offices. These techniques are part of a broad trend in public administration that seeks to make government agencies function like entrepreneurial organizations. This new model raises serious questions of public accountability. In the new system of welfare administration, critical policy chokes are reflected in incentive and evaluation systems rather than formal rules. As policy decisions are made in ways that are less visible, there are fewer opportunities for public input. Moreover, in the new regime the efficacy of administrative hearings as a means of holding agencies accountable to recipients is diminished. Professor Diller suggests several possible means of facilitating public participation and fair treatment in this area. He concludes by urging that scholars, policymakers, and advocates focus their attention on developing new mechanisms to provide effective public participation in administrative policymaking and implementation.


Beyond the Limits of Equity Jurisprudence: No-Fault Equitable Subordination

Rafael Ignacio Pardo

In two 1996 decisions involving equitable subordination of claims in bankruptcy cases, United States v. Noland and United States v. Reorganized CF&I Fabricators of Utah, Inc., the Supreme Court did not answer the question of whether a bankruptcy court must find creditor misconduct before it equitably subordinates a creditor’s claim. In this Note, Rafael Pardo argues that the Court should have established a bright-line rule that requires such a finding, using prepetition, nonpecuniary loss tax penalty claims of the IRS as a model. After showing that, as codified in the Bankruptcy Cod, the doctrine of equitable subordination requires a finding of creditor misconduct, he analyzes circuit courts of appeals cases prior to Noland and Reorganized CF&I Fabricators that upheld equitable subordination of IRS prepetition tax penalty claims wider a no-fault standard.┬áPardo argues that use of a no-fault standard of equitable subordination by a bankruptcy court constitutes impermissible judicial activism, and concludes that any unfairness resulting from the treatment of claims by the Bankruptcy Code should be remedied by Congress.

Is There a Doctor in the House? Using Failure-to-Warn Liability to Enhance the Safety of Online Prescribing

Chester Chuang

The ability to obtain prescription medications over the Internet without a proper prescription has inflamed regulators nationwide. Federal and state officials alike have proposed a host of new laws and regulations that attempt to limit this burgeoning phenomenon. Yet premature regulation of Internet prescribing could prevent consumers from realizing the tremendous benefits the Internet might one day provide to the American health care delivery system. In this Note, Chester Chuang argues that subjecting Internet prescribing to a traditional failure-to-warn liability framework, rather than to additional regulations, adequately will ensure patient safety while allowing for the necessary innovations that will legitimize the distribution of prescription medications over the Internet. He suggests that pharmaceutical manufacturers can satisfy their duty to warn by contractually obligating websites that dispense prescription medications to implement comprehensive patient information systems. Chuang concludes that the proper application of this framework to these patient information systems will make certain that pharmaceutical manufacturers strike the proper balance between patients’ health and safety concerns and the possibilities of Internet prescribing.

You Say “Fair Trial” and I Say “Free Press”: British and American Approaches to Protecting Defendants’ Rights in High Profile Trials

Joanne Armstrong Brandwood

The United States and Britain share a deep commitment to guaranteeing fair trials, but Joanne Brandwood argues in this Note that neither country effectively protects the rights of criminal defendants from the dangers posed by prejudicial publicity. She maintains that in Britain, because of loopholes in the law and pressures from modem media technology, harsh restrictions on the press unacceptably impinge on freedom of expression without adequately protecting defendants’ rights. In the United States, courts have powerful tools with which to guarantee fair trials without sacrificing First Amendment values; but trial courts often fail to deploy these protective measures, and appellate courts are extremely reluctant to challenge trial judges’ assessments of prejudice. Brandwood concludes that the most effective strategy for reconciling the conflict between the right to a fair trial and the right to freedom of expression combines British presumptions about publicity and American jury controls with effective restrictions on extrajudicial statements made by those most likely to prejudice criminal trials: attorneys and law enforcement officials.