Law Commons^™

The Law Of Gender Stereotyping And The Work-Family Conflicts Of Men, Stephanie Bornstein

UF Law Faculty Publications

This Article looks back to the early equal protection jurisprudence of the 1970s and Ruth Bader Ginsburg's litigation strategy of using men as plaintiffs in sex discrimination cases to cast a renewed focus on antidiscrimination law as a means to redress the work-family conflicts of men. From the beginning of her litigation strategy as the head of the ACLU Women's Rights Project, Ginsburg defined sex discrimination as the detrimental effects of gender stereotypes that constrained both men and women from living their lives as they wished-not solely the minority status of women. The same sex-based stereotypes that kept women out …

The R-Word: A Tribute To Derrick Bell, Kenneth B. Nunn

UF Law Faculty Publications

Racism has become the “R-word,” an allegation that is so outrageous that it cannot even be spoken in public, let alone seriously addressed. In this brief exploration, I propose that it is exactly because racism continues to loom large in American society that talking about it has become taboo. In other words, banning the “R-word” serves a political function. It masks the failure of American society to confront the existence of racism and do something about its effects. Derrick Bell's path breaking work can be used to show why the focus of race discourse has moved from debating over what …

Talking About Race And Equality, Sharon E. Rush

UF Law Faculty Publications

Lots of people of different races are increasingly uncomfortable talking about race. They prefer to function in a colorblind society where they insist that race is irrelevant. Not surprisingly, the concept of racial silencing is consistent with the concept of colorblindness. Logically, it seems impossible to talk about race if we are not even supposed to see it. The idea seems to be that if people who believe in racial equality magically stopped seeing and talking about race they could avoid the negativity surrounding racial issues and just hope that the inequality would fix itself. But we know that if …

Unsex Cedaw? No! Super-Sex It!, Berta E. Hernández-Truyol

UF Law Faculty Publications

This Article reflects upon Darren Rosenblum's provocative piece Unsex CEDAW, or What's Wrong with Women's Rights. At the outset I should note that this critical analysis should not be misinterpreted. I do not quarrel with Professor Rosenblum's observations that inequality in law and life is much broader than sex inequalities. To the contrary, I am in full accord with him that discrimination along other categorical axes is also undesirable and sometimes as prevalent as sex inequality. Indeed, oftentimes such other discriminatory tendencies dovetail with those rooted in sex discrimination.

Where we diverge, however, is in his proposal that the …

The Family Law Canon In A (Post?) Racial Era, Shani M. King

UF Law Faculty Publications

While the debate about a post-racial society rages, our justice system continues to operate in a way that is race-conscious. It seems as though most of the discussion about race and the justice system concerns criminal justice, juvenile justice, education, and immigration. But race consciousness also impacts family law. Nonetheless, the family law canon does not scrutinize race-based disparities in laws, procedures, and outcomes, and that omission feeds a mistaken notion of a race-blind or a post-racial society. One consequence of this omission is that it obscures race-based decision making by legislatures, judges, legal reform organizations, legal scholars, lawyers, and …

Protecting The Dignity And Equality Of Children: The Importance Of Integrated Schools, Sharon E. Rush

UF Law Faculty Publications

The primary goal of this Article is to motivate equality-minded people to renew their commitment to the goal of invalidating the race myth – a belief in white superiority and black inferiority – that has plagued this country far too long. When the Supreme Court ruled in Brown that “separate is inherently unequal,” it understood that integrated schools were necessary to achieve racial equality because only by teaching children to respect each other’s dignity, is it possible to debunk the race myth. This Article suggests that “integration” is about more than ensuring that children have the opportunity to physically share …

Sex In And Out Of Intimacy, Laura A. Rosenbury, Jennifer E. Rothman

UF Law Faculty Publications

The state has long attempted to regulate sexual activity by channeling sex into various forms of state-supported intimacy. Although commentators and legal scholars of diverse political perspectives generally believe such regulation is declining, the freedom to engage in diverse sexual activities has not been established as a matter of law. Instead, courts have extended legal protection to consensual sexual acts only to the extent such acts support other state interests, most often marriage and procreation. Although Lawrence v. Texas altered some aspects of that vision, it reinscribed others by suggesting that sexual activity should be protected from state interference only …

Sexual Politics And Social Change, Darren Lenard Hutchinson

UF Law Faculty Publications

The Article examines the impact of social movement activity upon the advancement of GLBT rights. It analyzes the state and local strategy that GLBT social movements utilized to alter the legal status of sexual orientation and sexuality following the Supreme Court’s ruling in Bowers v. Hardwick. Successful advocacy before state and local courts, human rights commissions, and legislatures fundamentally shifted public opinion and laws regarding sexual orientation and sexuality between Bowers and the Supreme Court’s ruling in Lawrence v. Texas. This altered landscape created the "political opportunity" for the Lawrence ruling and made the opinion relatively "safe".

Currently, GLBT rights …

Police Interrogation During Traffic Stops: More Questions Than Answers, Tracey Maclin

UF Law Faculty Publications

This short paper focuses on whether the Fourth Amendment permits police, during a routine traffic stop, to arbitrarily question motorists about subjects unrelated to the purpose of the traffic stop. The paper was prompted by a recent Ninth Circuit ruling, United States v. Mendez, 476 F.3d 1077 (9th Cir. 2007), which was authored by Judge Stephen Reinhardt. Prior to Mendez, the Ninth Circuit had taken the position that the Fourth Amendment barred police from questioning motorists about subjects unrelated to the purpose of a traffic stop, unless there was independent suspicion for such questioning. This rule was based on the …

Social Movements And Judging: An Essay On Institutional Reform Litigation And Desgregation In Dallas, Texas, Darren Lenard Hutchinson

UF Law Faculty Publications

This Article discusses the political and legal barriers that have surfaced to undermine the ability of courts to fashion remedies that offer justice to aggrieved individuals and to render rights-based institutional reform litigation a judicial relic. Part II examines the historical development of institutional reform litigation and examines the political factors that created the opportunity for dramatic changes in legal approaches to the issue of racial inequality. Part III examines litigation challenging segregation in Dallas public schools. It also discusses cases filed in the immediate post-Brown v. Board of Education era and contrasts those cases with Judge Sanders's rulings on …

Race, Identity, And Professional Responsibility: Why Legal Services Organizations Need African American Staff Attorneys, Shani M. King

UF Law Faculty Publications

Given the fundamental importance of the attorney-client relationship in securing favorable outcomes for clients, legal services organizations that serve large populations of African Americans should employ African American staff attorneys because: (1) African American lawyers and clients share a group identity that makes it more likely that a black attorney will be able to gain a black client's trust; (2) black attorneys communicate more effectively with black clients; and (3) the perception of a judicial system that is unfair and racist is likely to encourage black clients to trust black lawyers more than white lawyers, who are more likely to …

William Faulkner, Legal Commentator: Humanity And Endurance In Hollywood's Yoknapatawpha, Michael Allan Wolf

UF Law Faculty Publications

Two of the several films based on William Faulkner's writings - “Intruder in the Dust” and “Tomorrow” - are sensitive adaptations that are permeated with themes regarding the nature of justice, the role of the attorney, and the place of law and lawlessness in society. In many ways, a careful study of each of these two films (and of the novel and story upon which they are based) reveals that William Faulkner holds a place as an important American legal commentator. No writer (before or since Faulkner) captures so vividly and so truly the moral predicament of an American South …

Diversity As A Dead-End, Kenneth B. Nunn

UF Law Faculty Publications

Supreme Court cases on diversity could only assist if they defined diversity in a way that allowed institutions to admit significant numbers of the type of individuals that the institutions were lacking. This is precisely what the Supreme Court's cases on diversity do not do. Furthermore, the Supreme Court's view of diversity is flawed because it does not address existing power differentials between Blacks and Whites. As a result diversity, as it is defined by the Supreme Court, is a dead-end for those who are concerned about social justice and equity in higher education.

Whither Sexual Orientation Analysis?: The Proper Methodology When Due Process And Equal Protection Intersect, Sharon E. Rush

UF Law Faculty Publications

This Article suggests that there is Proper Methodology that courts apply when reviewing cases at the intersection of due process and equal protection. Briefly, courts operate under a rule that heightened review applies if either a fundamental right or a suspect class is involved in a case, and that rational basis review applies if neither is involved (the "Rule"). Two primary exceptions to the Rule exist, and this Article identifies them as the "Logical" and "Ill Motives" Exceptions. The Logical Exception applies when a court need not apply heightened review because a law fails rational basis review. The Ill Motives …

Majority Politics And Race Based Remedies, Darren Lenard Hutchinson

UF Law Faculty Publications

This Essay applies the principles of social movement theory and analyzes the legal status of race-based remedies. Many scholars have debated the constitutionality and efficacy of affirmative action, the appropriateness of race-consciousness (from legal and social perspectives) and the legitimacy of structural judicial remedies for various types of discrimination. This paper will add to this literature by demonstrating the influence of conservative race politics and ideology on Court doctrine concerning affirmative action and other race-based remedies. In particular, this Essay will demonstrate that, consistent with broader political trends, the Court disfavors governmental usage of race as a remedy for discrimination …

María Lugones's Work As A Human Rights Idea(L), Berta E. Hernández-Truyol, Mariana Ribeiro

UF Law Faculty Publications

The work of Maria Lugones can be utilized to focus on the same ideas of human reality articulated in the human rights framework. She engages the complexity of humans -- the indivisibility of their identity components -- through her concepts of hybridity/multidimensionality. Similarly, Lugones captures the human need for self-determination -- a right embedded in the human rights framework -- in her work on autonomy, agency, and self-care. Finally, her quest for an antisubordination ideal, like the human rights mandate for equality and nondiscrimination, comes to life in her call for the recognition of and respect for the equality of …

Beyond The First Decade: A Forward-Looking History Of Latcrit Theory, Community And Praxis, Berta E. Hernández-Truyol, Angela Harris, Francisco Valdés

UF Law Faculty Publications

Part I of this Afterword sketches an overview of the jurisprudential and intellectual precursors that have influenced the emergence and development of LatCrit theory during this past decade. Part II turns squarely to the origins and the efforts of this enterprise, as we have endeavored to articulate the LatCrit subject position in socially relevant ways. Part III explains the special emphasis on internationalism manifest both in our symposia and more broadly in our portfolio of projects. Part IV then concludes with an outline of some key points that might help to inform our second-decade agenda. In presenting our account of …

New Explorations In Culture And Crime: Definitions, Theory, Method, Kenneth B. Nunn

UF Law Faculty Publications

Culture affects criminal law in at least two key ways. First, culture and crime symbiotically define each other. Second, culture helps explain which courtroom narratives will be successful, and which will not. Culture influences who will be arrested, charged, convicted, and what sentence they will receive. Indeed, the invisible hand of culture drives the process of criminalization and helps to determine which acts we will sanction through criminal statutes.

Black Protectionism As A Civil Rights Strategy, Katheryn Russell-Brown

UF Law Faculty Publications

This Article has identified and outlined the parameters of Black protectionism, a practice used by African-Americans to protect prominent community members who have been charged with criminal or unethical activity. This practice took root during slavery-during a time when a false or minor charge against one African-American could result in death or great bodily harm to him and scores of other African-Americans. History has cultivated a culture of Black mistrust of Whites in particular and mainstream society in general. This suspicion is reinforced with the continued disparate treatment of African-Americans within the criminal justice system. History and contemporary conditions explain …

The Majoritarian Difficulty: Affirmative Action, Sodomy, And Supreme Court Politics, Darren Lenard Hutchinson

UF Law Faculty Publications

Contemporary debates over recent Court decisions provide a rich context to weigh claims of judicial countermajoritarianism against the work of constitutional theorists, critical legal scholars, and political scientists who view the Court as a majoritarian body. In particular, the Court's decisions in Lawrence v. Texas, Gratz v. Bollinger, and Grutter v. Bollinger have reignited arguments concerning the propriety of judicial review. Prominent judicial commentators have described the decisions as important, and unexpected, civil rights victories from a markedly conservative Court. Liberal and conservative scholars and activists seem to agree with this description: mainline civil rights organizations and liberal scholars view …

Affirmative Action And The Decline Of Intellectual Culture, Charles W. Collier

UF Law Faculty Publications

No abstract provided.

Is "Don't Ask, Don't Tell" Unconstitutional After Lawrence? What It Will Take To Overturn The Policy, Diane H. Mazur

UF Law Faculty Publications

There can be a certain politeness to legal challenges to "Don't Ask, Don't Tell," the congressional policy that attempts - fitfully, incompletely, and arbitrarily - to exclude gay citizens from both the responsibilities and privileges of military service.' We consider whether the military has articulated a "rational basis" for the policy – some explanation of the military's belief that it is at least rational (as opposed to irrational) to classify servicemembers as straight or gay and accept or reject them accordingly, all in the interest of military effectiveness. We accept the fact that judges assume there is a need for …

Critical Race Histories: In And Out, Darren Lenard Hutchinson

UF Law Faculty Publications

This Article contributes to the completion of some “unfinished business” within Critical Race Theory by engaging insufficiently examined external and internal critiques of critical race scholarship. The external critique of critical race nihilism and the new insider critique that dichotomizes identity theories and material harm warrant extended reflection because there are critical deficiencies that problematize these arguments. The nihilism critique, for example, falsely associates CRT with more radical forms of postmodernism and overlooks leading works in CRT which demonstrate that Critical Race Theorists inhabit an admittedly contradictory space. Critical Race Theorists radically deconstruct the racial hierarchies that law constitutes and …

Lessons From And For "Disabled" Students, Sharon E. Rush

UF Law Faculty Publications

The traditional understanding of "disabled" means to have a physical, mental, or emotional limitation. It is unfortunate that the word has negative connotations because we all have the ability to do some things and not others. An individual's disabilities, traditional or otherwise, do not diminish the person or detract from the universal tenet that all people are inherently equal and entitled to be treated with dignity. Generally, it is unproductive to compare the circumstances of one group with another for the purpose of discerning which group has it better or worse. Struggles by different groups to achieve equality have different …

Querying Lawrence, Berta E. Hernández-Truyol

UF Law Faculty Publications

In 2003, the Supreme Court in the landmark decision Lawrence v. Texas found a Texas law, banning homosexual, but not heterosexual, sodomy to be unconstitutional. Thus, Lawrence ended the Bowers era in which morality was deemed to be a justification for discrimination against gays and lesbians. While the decision did bring to United States Constitutional analysis the radical idea that gays and lesbians are people too, it stopped short of addressing the real problem the case presents--the existence of a second-class citizenry. This Article examines the Lawrence decision in light of both the international, regional, and foreign jurisprudence and the …

The Logic And Experience Of Law: Lawrence V. Texas And The Politics Of Privacy, Danaya C. Wright

UF Law Faculty Publications

The U.S. Supreme Court's June 2003 decision in Lawrence v. Texas may prove to be one of the most important civil rights cases of the twenty-first century. It may do for gay and lesbian people what Brown v. Board of Education did for African-Americans and Roe v. Wade did for women. While I certainly hope so, my enthusiasm is tempered by the fact that discrimination on the basis of race or gender has not disappeared. Will Lawrence signal meaningful change, or will its revolutionary possibilities be stifled by endless cycles of excuse and redefinition? The case is important, but I …

Factless Jurisprudence, Darren Lenard Hutchinson

UF Law Faculty Publications

Professor Terry Smith has written a very important work on the inadequacy of juridical approaches to antidiscrimination law in the context of Title VII litigation. Smith argues that the anti-retaliation provisions of Title VII can serve more broadly as a mechanism for protecting workers of color from prohibited racial discrimination. Smith contends that contemporary equality jurisprudence, however, impedes the protective scope of the anti-retaliation provision because courts fail to appreciate the broader context of racial antagonism in which persons of color live. Particularly, courts often misinterpret lawful racial protest in the workplace as disruptive and appropriately regulated to the detriment …

Emotional Segregation: Huckleberry Finn In The Modern Classroom, Sharon E. Rush

UF Law Faculty Publications

This paper explores the harm of teaching The Adventures of Huckleberry Finn in public school classrooms. Such harm can be broadly described as emotional segregation, which occurs when society sanctions disrespect. To illustrate the effects of emotional segregation, this article explores the reaction Black students and parents have to the novel to that of White students and parents. White students eagerly imagine being Huck and going on his adventures. Black students, however, cannot and should not even be asked to try to imagine being Huck and betraying their racial identity. But then who are the Black students supposed to identify …

Identity Matters, Sharon E. Rush

UF Law Faculty Publications

From the Sixth Annual LatCrit Conference in Gainesville, Florida on April 26-29, 2001.

Cluster VII: Race, Gender, and Sexuality

The Anticanonical Lesson Of Huckleberry Finn, Sharon E. Rush

UF Law Faculty Publications

Some books included in the canon of American literature no longer belong there, because they presently lack normative approval. Adapting concepts found in constitutional law, an anticanon of American literature functions the way the anticanon of constitutional law would operate and explicitly removes books from the canon. In law, the anticanon identifies outdated interpretations of the constitution. In education, it is time to consider removing from the canon and placing in an anticanon books that are inconsistent with multicultural education. One such book is Mark Twain's Huckleberry Finn, which is part of the canon of American literature and viewed as …