Law Commons^™

Tort Liability For Physical Harm To Police Arising From Protest: Common-Law Principles For A Politicized World, Ellen M. Bublick, Jane R. Bambauer

UF Law Faculty Publications

When police officers bring tort suits for physical harms suffered during protest, courts must navigate two critically important sets of values—on the one hand, protesters’ rights to free speech and assembly, and on the other, the value of officers’ lives, health, and rights of redress. This year courts, including the United States Supreme Court, must decide who, if anyone, can be held accountable for severe physical harms suffered by police called upon to respond to protest. Two highly visible cases well illustrate the trend. In one, United States Capitol Police officers were injured on January 6, 2021, during organized attempts …

Who's Afraid Of Being Woke? – Critical Theory As Awakening To Erascism And Other Injustices, Berta E. Hernández-Truyol

UF Law Faculty Publications

Woke means “the belief there are systemic injustices in American society and the need to address them.” Ryan Newman, General Counsel to Governor of Florida.

Stopping wokeness is to combat the belief there are systemic injustices in American society which, true to form, does sound a lot like the opposite of being awake, and that is to say, totally asleep. Alex Wagner.

[B]y condemning the word “Woke” the establishment is not only attacking African American language. It also [is] disparaging the whole concept of being “awake” which I believe is one of the essential elements of moral and religious consciousness. …

Superfluous Judicial Activism: The Takings Gloss, Michael Allan Wolf

UF Law Faculty Publications

In the summer of 2021, the Supreme Court released opinions in three Takings Clause cases. The Justices did not focus primarily on the dozen words that compose that Clause. Instead, the Court considered the expansive judicial gloss on those words, the extratextual aspects established by takings opinions over the last 100 years, since the “too far” test introduced by Justice Holmes in Pennsylvania Coal. The “Takings Gloss” is the product of holdings expanding the meaning and reach of the Takings Clause, a tangled web of opinions that have troubled lawyers, judges, and commentators for several decades. With the latest contributions, …

Macro-Judging And Article Iii Exceptionalism, Merritt E. Mcalister

UF Law Faculty Publications

Over the last half-century, the federal courts have faced down two competing crises: an increase in small, low-value litigation thought unworthy of Article III attention and an increase in the numbers and complexity of “big” cases thought worthy of those resources. The choice was what to prioritize and how, and the answer the courts gave was consistent across all levels of the federal judiciary. Using what this Article calls “macro-judging,” Article III judges entrenched their own power and autonomy to focus on the work they deemed most “worthy” of their attention, while outsourcing less “important” work to an array of …

Bottom-Rung Appeals, Merritt E. Mcalister

UF Law Faculty Publications

There are haves and have-nots in the federal appellate courts, and the haves get more attention. For decades the courts have used a triage regime where they distribute judicial attention selectively: some appeals receive a lot of judicial attention, some appeals receive barely any. What this work unearths is that this triage system produces demonstrably unequal results depending on the circuit handling the appeal and whether the appellant has counsel or not. Together, these two factors produce dramatic disparities: in one circuit, for example, an unrepresented appellant receives, on average, a decision less than a tenth the length of a …

The End Of Balancing? Text, History & Tradition In First Amendment Speech Cases After Bruen, Clay Calvert, Mary-Rose Papandrea

UF Law Faculty Publications

This Article examines the potential impact on First Amendment free-speech jurisprudence of the U.S. Supreme Court’s increasing reliance on text, history, and tradition in 2022 decisions such as New York State Rifle & Pistol Association v. Bruen. In Bruen, the Court embraced a new test for examining Second Amendment cases. It concentrates on whether there is a historical tradition of regulating the conduct in question, and it eliminates any use of constitutionally common means-end standards of review such as strict and intermediate scrutiny. Those two scrutiny standards often guide the Court’s free-speech decisions. The Bruen majority, however, asserted that its …

State Constitutional Rights, State Courts, And The Future Of Substantive Due Process Protections, Jonathan L. Marshfield

UF Law Faculty Publications

By most accounts, the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization signaled a broader stagnation (and perhaps retrenchment) of federal substantive due process protections. As a result, there is now great interest in the role that state constitutions and courts might play in protecting and expanding reproductive and privacy rights. This Article aims to place this moment in state constitutional development in broader context. It makes two core claims in this regard. First, although state courts are free to interpret state constitutions as providing broader individual rights protections than those contained in the Federal Constitution, state constitutions …

On Fires, Floods, And Federalism, Andrew Hammond

UF Law Faculty Publications

In the United States, law condemns poor people to their fates in states. Where Americans live continues to dictate whether they can access cash, food, and medical assistance. What’s more, immigrants, territorial residents, and tribal members encounter deteriorated corners of the American welfare state. Nonetheless, despite repeated retrenchment efforts, this patchwork of programs has proven remarkably resilient. Yet, the ability of the United States to meet its people’s most basic needs now faces an unprecedented challenge: climate change. As extreme weather events like wildfires and hurricanes become more frequent and more intense, these climate-fueled disasters will displace and impoverish more …

Macro-Judging And Article Iii Exceptionalism, Merritt E. Mcalister

UF Law Faculty Publications

Over the last half-century, the federal courts have faced down two competing crises: an increase in small, low-value litigation thought unworthy of Article III attention and an increase in the numbers and complexity of “big” cases thought worthy of those resources. The choice was what to prioritize and how, and the answer the courts gave was consistent across all levels of the federal judiciary. Using what this Article calls “macro-judging,” Article III judges entrenched their own power and autonomy to focus on the work they deemed most “worthy” of their attention, while outsourcing less “important” work to an array of …

Bottom-Rung Appeals, Merritt E. Mcalister

UF Law Faculty Publications

There are haves and have-nots in the federal appellate courts, and the haves get more attention. For decades the courts have used a triage regime where they distribute judicial attention selectively: some appeals receive a lot of judicial attention, some appeals receive barely any. What this work unearths is that this triage system produces demonstrably unequal results depending on the circuit handling the appeal and whether the appellant has counsel or not. Together, these two factors produce dramatic disparities: in one circuit, for example, an unrepresented appellant receives, on average, a decision less than a tenth the length of a …

Adventures In The Article V Wonderland: Justiciability And Legal Sufficiency Of The Era Ratifications, Danaya C. Wright

UF Law Faculty Publications

This Article examines the paradoxical world of Article V - the amending power of the Constitution - in light of the recent ratification of the Equal Rights Amendment (ERA). It explores the question of whether Article V issues are justiciable, what role the federal and state courts play in determining Article V procedures, and who has the jurisdiction to evaluate the legal sufficiency of state ratifications. This is a confounding area of law, and with a few judicial precedents, some textualism and originalism arguments, and recourse to logic and scholarship, I conclude that the ERA is validly the Twenty-Eighth Amendment. …

Long Overdue: Fifth Amendment Protection For Corporate Officers, Tracey Maclin

UF Law Faculty Publications

The Supreme Court has extended to corporations many of the same constitutional rights that were originally intended to protect people. One notable exception, however, is the Fifth Amendment’s prohibition on compulsory self-incrimination. “Corporations may not take the Fifth.” There is a long line of cases dating back to the start of the twentieth century stating – but never directly holding – that corporations are not protected by the self-incrimination clause. But the fact that a corporation cannot invoke the Fifth does not explain why a person who works for a corporation cannot. As a matter of text, the Fifth Amendment …

A Tale Of Two Formalisms: How Law And Economics Mirrors Originalism And Textualism, Neil H. Buchanan, Michael C. Dorf

UF Law Faculty Publications

Two leading schools of thought among U.S. conservative legal elites — Law and Economics (L&E) and Originalism and Textualism (O&T) — both purport to use their formalist structures to guide analysis in ways that are objective, substantially determinate, and apolitical. Because they rest on very different theoretical underpinnings, L&E and O&T should only randomly reach similar policy or legal conclusions. After all, L&E implements neoclassical economics, a theory of utility maximization, whereas O&T is a theory of semantics. Yet as practiced, L&E and O&T rarely result in conflict. What explains the missing intra-conservative clash? Despite their respective pretenses to objectivity, …

Curing The First Amendment Scrutiny Muddle Through A Breyer-Based Blend Up? Toward A Less Categorical, More Values-Oriented Approach For Selecting Standards Of Judicial Review, Clay Calvert

UF Law Faculty Publications

This Article argues that the United States Supreme Court should significantly alter its current categorical approach for discerning standards of judicial review in free-speech cases. The present system should become nondeterminative and be augmented with a modified version of Justice Stephen Breyer’s long-preferred proportionality framework. Specifically, the Article’s proposed tack fuses facets of today’s policy, which largely pivots on distinguishing content-based laws from content-neutral laws and letting that categorization determine scrutiny, with a more nuanced, values-and-interests methodology. A values-and-interests formula would allow the Court to climb up or down the traditional ladder of scrutiny rungs – strict, intermediate or rational …

Scrutiny-Determination Avoidance In First Amendment Cases: Laudable Minimalism Or Condemnable Evasion?, Clay Calvert

UF Law Faculty Publications

This Article examines the United States Supreme Court’s practice in First Amendment cases of not resolving the precise level of scrutiny that applies to measure a statute’s validity. Rather than opting for one of two tiers of scrutiny — one more rigorous than the other—the Court sometimes dodges the issue. It does this by concluding that a statute would not pass muster under the more lenient standard, thereby rendering it unnecessary to decide which test was, in fact, more appropriate. The Court thus adopts an “assuming-without-deciding” logic in such cases, simply supposing the lesser standard applies without definitively holding as …

The Unwritten Rules Of Liberal Democracy, Charles W. Collier

UF Law Faculty Publications

This Article is set amidst the distinctly unsettled and unsettling state of governmental practices, legislative policy, and presidential politics of contemporary America. Immediacy, too, introduces its own uncertainty—as compared to the comfortable vantage point of the distant future. But, as I shall argue, there is no realistic alternative to beginning in medias res. To address these issues as they inherently demand, the usual precedents and protocols and precautions must be set aside—if they are not already “gone with the wind.”6 Since the 2016 Presidential Election, and even before, threats to liberal democracy have emerged, in plausible form, as never before …

'Great Variety Of Relevant Conditions, Political, Social And Economic': The Constitutionality Of Congressional Deadlines On Amendment Proposals Under Article V, Danaya C. Wright

UF Law Faculty Publications

Within a year or two, the thirty-eighth state is likely to ratify the Equal Rights Amendment (ERA), setting up an unprecedented constitutional challenge. The ERA was proposed with a seven-year deadline in the resolving clause, establishing the mode of ratification. That was a shift from earlier precedents in which a deadline had been placed in the text of the amendment proposal itself. Article V is annoyingly silent on the issue of congressional deadlines in amendment proposals, and the Supreme Court has never addressed the issue of a deadline that could void an otherwise properly ratified amendment. The practice of placing …

What Florida's Constitution Revision Commission Can Teach And Learn From Those Of Other States, Mary E. Adkins

UF Law Faculty Publications

The framers of Florida's constitution envisioned a Constitutional Revision Commission with complete freedom and independence - but its brainchild has not been able to keep that promise. In light of not only the public frustration with attempts at constitutional reform, but also of the specific problems identified both in structure and in practice of Florida's CRC, this Article suggests some reforms that could help not only Florida but other state constitution commissions or conventions be more effective and more readily accepted by the public.

Oh, What A Truism The Tenth Amendment Is: State Sovereignty, Sovereign Immunity, And Individual Liberties, Sharon E. Rush

UF Law Faculty Publications

The Supreme Court under the late Chief Justice Rehnquist and now Chief Justice Roberts takes the Tenth Amendment and state sovereignty seriously. It also takes the Eleventh Amendment and state sovereign immunity seriously. Moreover, the contemporary Court’s interpretations of Congress’s Article I powers are based on its concomitant interpretations of the Tenth and Eleventh Amendments, which the Court has infused with the idea that an inherent part of a state’s sovereignty is not just its prerogative not to have its treasuries invaded, but also includes its right not to have its dignity assaulted. Protecting the dignity of states and other …

How The War On Terror Is Transforming Private U.S. Law, Maryam Jamshidi

UF Law Faculty Publications

In thinking about the War on Terror’s impact on U.S. law, what most likely comes to mind are its corrosive effects on public law, including criminal law, immigration, and constitutional law. What is less appreciated is whether and how the fight against terrorism has also impacted private law. As this Article demonstrates, the War on Terror has had a negative influence on private law, specifically on torts, where it has upended long-standing norms, much as it has done in the public law context.

Case law construing the private right of action under the Antiterrorism Act of 1992, 18 U.S.C. § …

The Prophylactic Fifth Amendment, Tracey Maclin

UF Law Faculty Publications

Before Miranda was decided, the Court had not squarely confronted the issue of when a violation of the Fifth Amendment occurs. Over fifty years ago, the Court acknowledged that the right against self-incrimination has two interrelated facets: The Government may not use compulsion to elicit self-incriminating statements; and the Government may not permit the use in a criminal trial of self-incriminating statements elicited by compulsion. Back then, the “conceptual difficulty of pinpointing” when a constitutional violation occurs — when the Government employs compulsion, or when the compelled statement is actually admitted at trial — was unimportant. Chavez v. Martinez forced …

Students, Police, And The School-To-Prison Pipeline, Jason P. Nance

UF Law Faculty Publications

Since the terrible shootings at Sandy Hook Elementary School in Newtown, Connecticut, lawmakers and school officials continue to deliberate over new laws and policies to keep students safe, including putting more police officers in schools. Yet these decisionmakers have not given enough attention to the potential negative consequences that such laws and policies may have, such as creating a pathway from school to prison for many students. Traditionally, only educators, not law enforcement, handled certain lower-level offenses that students committed, such as fighting or making threats without using a weapon. Drawing on recent restricted data from the US Department of …

Rethinking Law Enforcement Officers In Schools, Jason P. Nance

UF Law Faculty Publications

A recent event that occurred in a South Carolina classroom illustrates why there should be concern about assigning law enforcement officers to work in public schools. In October of 2015, a teacher called a law enforcement officer into a classroom to handle a student behavior problem. A female student was using a cell phone in violation of school rules. Other students in the classroom captured what happened next by video. The videos show that when the student refused to exit the classroom, the officer grabbed her by the neck, flipped her and her desk to the floor, and then forcibly …

The Right To Silence V. The Fifth Amendment, Tracey Maclin

UF Law Faculty Publications

This paper concerns a well-known, but badly misunderstood, constitutional right. The Fifth Amendment to the Constitution guarantees, inter alia, that no person “shall be compelled in any criminal case to be a witness against himself.” For the non-lawyer, the Fifth Amendment protects an individual’s right to silence. Many Americans believe that the Constitution protects their right to remain silent when questioned by police officers or governmental officials. Three rulings from the Supreme Court over the past twelve years, Chavez v. Martinez (2003), Berghuis v. Thomkpins (2010) and Salinas v. Texas (2013), however, demonstrate that the “right to remain silent” that …

Preventing Balkanization Or Facilitating Racial Domination: A Critique Of The New Equal Protection, Darren Lenard Hutchinson

UF Law Faculty Publications

The Supreme Court requires that equal protection plaintiffs prove defendants acted with discriminatory intent. The intent rule has insulated from judicial invalidation numerous policies that harmfully impact racial and ethnic minorities. Court doctrine also mandates that state actors generally remain colorblind. The colorblindness doctrine has led to the judicial invalidation of policies designed to ameliorate the conditions of racial inequality. Taken together, these two equality doctrines facilitate racial domination. The Court justifies this outcome on the ground that the Constitution does not protect “group rights.”

Constitutional law theorists have criticized these aspects of equal protection doctrine. Recently, however, some theorists …

Death, Desuetude, And Original Meaning, John F. Stinneford

UF Law Faculty Publications

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to …

Federalism, Diversity, Equality, And Article Iii Judges: Geography, Identity, And Bias, Sharon E. Rush

UF Law Faculty Publications

Each individual has a background, and that background shapes the individual’s views about life, creating an inevitable form of bias referred to as “experiential bias.” Experiential bias is shaped by many identity traits, including, among others, race, sex, sexual orientation, religion and even geography. The geographic identity of state judges and their potential unfair experiential bias is the common justification for federal court diversity jurisdiction. But experiential bias is inescapable, affecting everyone who's ever had an experience, and is generally not unfair, as demonstrated by most studies regarding the "fairness" justification for diversity jurisdiction. More recently, Justice O’Connor connected racial …

Globally Speaking - Honoring The Victims' Stories: Matsuda's Human Rights Praxis, Berta E. Hernández-Truyol

UF Law Faculty Publications

Globally speaking, international law and the vast majority of domestic legal systems strive to protect the right to freedom of expression. The United States’ First Amendment provides an early historical protection of speech—a safeguard now embraced around the world. The extent of this protection, however, varies among states.

The United States stands alone in excluding countervailing considerations of equality, dignitary, or privacy interests that would favor restrictions on speech. The gravamen of the argument supporting such American exceptionalism is that free expression is necessary in a democracy. Totalitarianism, the libertarian narrative goes, thrives on government control of information to the …

"Continually Reminded Of Their Inferior Position": Social Dominance, Implicit Bias, Criminality, And Race, Darren Lenard Hutchinson

UF Law Faculty Publications

This Article contends that implicit bias theory has improved contemporary understanding of the dynamics of individual bias. Implicit bias research has also helped to explain the persistent racial disparities in many areas of public policy, including criminal law and enforcement. Implicit bias theory, however, does not provide the foundation for a comprehensive analysis of racial inequality. Even if implicit racial biases exist pervasively, these biases alone do not explain broad societal tolerance of vast racial inequality. Instead, as social dominance theorists have found, a strong desire among powerful classes to preserve the benefits they receive from stratification leads to collective …

Dispatches From The Trenches Of America's Great Gun Trust Wars, Lee-Ford Tritt

UF Law Faculty Publications

Without question, the national dialogue pertaining to the right to bear arms and the possible expansion of gun control regulations is shaping up to be one of the more heated political topics of the twenty-first century. At the moment, fervent participants on both sides of this ongoing debate have focused a spotlight on an estate planning instrument commonly referred to as a “gun trust.” Typically, estate planning products rarely cause the kind of nationally impassioned discussion as seen with gun trusts. So why have trusts, a commonly used estate planning tool, become entangled in this lively, and often vitriolic, national …