Law Commons^™

Unframing Legal Reasoning: A Cyclical Theory Of Legal Evolution, Larry A. Dimatteo

UF Law Faculty Publications

This article draws from legal history to inform a part of legal theory. The legal history examination focuses on two theories of legal development - Henry Sumner Maine's "progression thesis" and Nathan Isaacs's "cycle theory." After examining these two theories of legal development, the analysis shifts to how legal history informs theories of legal reasoning. There are numerous long-standing debates on how "law" should be interpreted. These debates are replicated in the question of how "contracts" should be interpreted. Contract law and contract interpretation will be the focus in examining how history informs legal theory, and more specifically, legal reasoning. …

Mr. Peabody's Improbable Legal Intellectual History, Mark Fenster

UF Law Faculty Publications

Legal intellectual history, I suggest in this Paper, is the street sweeper in the parade of law’s history and its use of history. Lawyers and legal academics want great, important figures, cases, and theories with and against which they can do battle. The student-edited law reviews prefer bold, clear claims that explain why one answer to an historical question presented will bring justice, while a competing answer is manifestly unjust; why one past approach lacks principle or created worse consequences; or how one theory or another can explain all manner of thorny legal issues which bedevils academics and practitioners. Viewing …

Awareness And The Legal Profession: An Introduction To The Mindful Lawyer Symposium, Leonard L. Riskin

UF Law Faculty Publications

This article introduces the Mindfulness Symposium, which includes five articles that developed out of the Mindful Lawyer Conference held at U. California-Berkeley in 2010. The article explains mindfulness and its growing importance in the legal profession, situates it among other curricular innovations, summarizes the articles in the symposium, describes other mindfulness curriculum developments, and offers resources.

Antitrust Energy, D. Daniel Sokol, Barak Orbach

UF Law Faculty Publications

Marking the centennial anniversary of Standard Oil Co. v. United States, we argue that much of the critique of antitrust enforcement and the skepticism about its social significance suffer from “Nirvana fallacy” — comparing existing and feasible policies to ideal normative policies, and concluding that the existing and feasible ones are inherently inefficient because of their imperfections. Antitrust law and policy have always been and will always be imperfect. However, they are alive and kicking. The antitrust discipline is vibrant, evolving, and global. This essay introduces a number of important innovations in scholarship related to Standard Oil and its modern …

Ancient Laws, Yet Strangely Modern: Biblical Contract And Tort Jurisprudence, Richard H. Hiers

UF Law Faculty Publications

People generally, and even most biblical scholars, tend to view biblical law as, at best, a random patchwork of odd and antiquated commandments and rules. The present Article demonstrates that many biblical laws can be understood to have functioned in biblical time, in ways remarkably similar to various laws characterized in modern Anglo-American jurisprudence as contract and tort law. In particular, the Article points out that the biblical tort laws found in Exodus 21:18 through 22:17 are structured along lines closely parallel to concepts found in modern tort law jurisprudence. Many of the biblical laws considered here give expression to …

The Inconvenience Of A “Constitution [That] Follows The Flag … But Doesn’T Quite Catch Up With It”: From Downes V. Bidwell To Boumediene V. Bush, Pedro A. Malavet

UF Law Faculty Publications

Boumediene v. Bush, resolved by the U.S. Supreme Court in June of 2008, granted habeas corpus rights, at least for the time being, to the persons detained at Guantanamo Bay Naval Station. The majority partially based its ruling on the doctrine of the Insular Cases, first set forth in the 1901 decision in Downes v. Bidwell. Additionally, the four dissenting justices agreed with the five in the majority that the plurality opinion of Justice Edward Douglass White in Downes – as affirmed by a unanimous court in 1922 in Balzac v. People of Porto Rico – is still the dominant …

Beyond Rules, Larry A. Dimatteo, Samuel Flaks

UF Law Faculty Publications

Our article, in contrast to the predominant scholarly view, contends that the influential Legal Realist Movement of the 1930s was actually two movements—radical legal realism and conservative legal realism (CLR). CLR is best understood through the works of Nathan Isaacs. This article will investigate the legitimacy and determinacy of the legal order through the lens of CLR as represented by Isaacs.

Isaacs and CLR are especially worthy subjects for study given the current economic crisis. It is a crisis, much like the Great Depression, that has spurred many people to question core capitalistic premises, such as the superiority of minimal …

Law And Development: The Way Forward Or Just Stuck In The Same Place?, D. Daniel Sokol

UF Law Faculty Publications

This Essay does three things. First, it provides an overview of Law and Development issues. Second, it responds to other pieces in the symposium "The Future of Law and Development". Third, it suggests that to measure success, Law and Development needs clearer goals.

"The Constitution Follows The Flag...But Doesn't Quite Catch Up With It": The Story Of Downes V. Bidwell, Pedro A. Malavet

UF Law Faculty Publications

Some may consider a 1901 case to be ancient history, but Downes v. Bidwell and its progeny still govern all of these regions. This chapter will explore the Insular Cases as a way to understand the role of race in articulating the relationship between American territorial expansion and American citizenship-between American empire and American democracy. The chapter begins by historicizing the Downes opinion. My aim here is threefold: (1) to provide a brief description of the effects of Spanish colonial rule on Puerto Rico; (2) to set forth the circumstances leading up to the Spanish American War; and (3) to …

Looking Backward: Richard Epstein Ponders The “Progressive” Peril, Michael Allan Wolf

UF Law Faculty Publications

In "How Progressives Rewrote the Constitution," Richard Epstein bemoans the growth of a dominant big government. How Progressives should receive a warm reception from the audience, lawyers and laypeople alike, who view the New Deal as a mistake of epic proportions. For the rest of us, significant gaps will still remain between, on the one hand, our understanding of the nation’s past and of the complex nature of constitutional lawmaking and, on the other, Epstein’s version of the nature of twentieth-century reform and Progressive jurisprudence.

Afterword - Outsider Citizenships And Multidimensional Borders: The Power And Danger Of Not Belonging, Pedro A. Malavet

UF Law Faculty Publications

In this closing for the LatCrit VIII symposium, I adopt a collective view of the articles, and attempt to develop how the themes discussed in them fit within LatCrit scholarship. I will then interrogate the future of our enterprise by discussing the danger of succumbing to the seduction of the real or perceived need "to reinvent the wheel," or at least to clothe ideas in overly-developed language. Last, the Conclusion discusses how LatCrit scholarship is both promoted and challenged by the articles published here. I further include some suggested institutional responses to the opportunities for mentoring and nurturing that I …

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 …

Principles For Constitutions And Institutions In Promoting The Rule Of Law, Jon L. Mills

UF Law Faculty Publications

Proceedings of the Fourth Annual Legal & Policy Issues in the Americas Conference (2003). Panel IV. Comparative Constitutional Approaches to the Rule of Law and Judicial Independence.

"Well-Behaved Women Don't Make History": Rethinking English Family, Law, And History, Danaya C. Wright

UF Law Faculty Publications

In 1857 Parliament finally succumbed to public and political pressure and passed a bill creating a domestic relations court: the Court for Divorce and Matrimonial Causes. This new court for the first time in common-law history, combined the following jurisdictions: the ecclesiastical court's jurisdiction over marital validity and separation; the Chancery court's jurisdiction over child custody and equitable estates; the common-law court's jurisdiction over property; and Parliament's jurisdiction over divorce and marital settlements. Wives were given the legal right to seek a divorce or judicial separation in a court of law, receive custody of the children of the marriage, and …

The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster

UF Law Faculty Publications

This article is an effort to provide both the intellectual context of Thurman Arnold's work and, through his work, a better sense of where and how the study of law turned after realism. The article is in five parts. Part I describes Arnold's relationship with legal realism, looking at the earliest part of his academic career when, as a mainstream realist, he performed empirical studies of local and state court systems. Part II is Arnold's proposed field of "Political Dynamics," an interdisciplinary approach to the symbols of law, politics, and economics. Part III considers Arnold's authorial voice in Symbols and …

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 …

A Different Sort Of Justice: The Informal Courts Of Public Opinion In Antebellum South Carolina, Elizabeth Dale

UF Law Faculty Publications

Studies of nineteenth century legal history assume that the antebellum South, and antebellum South Carolina in particular, had a legal culture shaped by honor culture and marked by the hierarchical assumptions and extralegal violence that honor culture engendered. In this article, I offer a modification of that well-established account. While I do not question the influence of honor on South Carolina's antebellum legal culture, I suggest that the state had a second, shame-based system of popular justice, in which women played a prominent role. As was the case with honor culture, this second form of extralegal justice, which I have …

Reparations Theory And Postcolonial Puerto Rico: Some Preliminary Thoughts, Pedro A. Malavet

UF Law Faculty Publications

This article primarily focuses on the plight of the Puerto Ricans on the island because, in addition to their flawed social construction by the United States and lack of national political power, they are also legally constructed as second-class citizens. In defining the legal rights of Puerto Ricans, the U.S. Supreme Court has held that territorial citizens are entitled to fewer constitutional protections than U.S. citizens residing in any of the fifty states. The racist and essentialist social construction of the Puerto Ricans as inassimilable, the denial of legal rights by the courts, along with the democratic deficit which deprives …

New Complexity Theories: From Theoretical Innovation To Doctrinal Reform, Darren Lenard Hutchinson

UF Law Faculty Publications

During the latter part of the twentieth century, progressive scholars in various fields of study have developed a large body of works analyzing identity politics. Within legal scholarship, critical race, feminist, anti-heterosexist, and other progressive theorists have demonstrated how legal doctrines and policies perpetuate social hierarchy and reinforce the domination of oppressed classes. The efforts of progressive scholars (and activists) to launch a unified critique of injustice, however, has proved difficult - due in part to the variety of theoretical and doctrinal options available to counter subordination and also to the intractable nature of institutionalized oppression. Yet, progressive scholars have …

“Closet Case”: Boy Scouts Of America V. Dale And The Reinforcement Of Gay, Lesbian, Bisexual, And Transgender Invisibility, Darren Lenard Hutchinson

UF Law Faculty Publications

This Article argues that the Supreme Court's decision in Boy Scouts of America v. Dale misapplies and ignores controlling First Amendment precedent and incorrectly defines “sexual identity” as a clinical or biological imposition that exists apart from expression or speech. This Article provides a doctrinal alternative to Dale that would protect vital interests in both equality and liberty and that would not condition, as does Dale, sexual “equality” upon the silencing of gay, lesbian, bisexual, and transgender individuals.

This Article proceeds in five parts. Part I provides an introduction to the case and issues.Part II discusses the evolution of the …

Puerto Rico: Cultural Nation, American Colony, Pedro A. Malavet

UF Law Faculty Publications

As a matter of law, Puerto Rico has been a colony for an uninterrupted period of over five hundred years. In modern times, colonialism—the status of a polity with a definable territory that lacks sovereignty because legal/political authority is exercised by a peoples distinguishable from the inhabitants of the colonized region—is the only legal status that the isla (island) has known. This Article posits that Puerto Rico's colonial status—particularly its intrinsic legal and social constructs of second-class citizenship for Puerto Ricans—is incompatible with contemporary law or a sensible theory of justice and morality.

Puerto Ricans, as United States citizens by …

Literature And The Arts As Antisubordination Praxis: Latcrit Theory And Cultural Production: The Confessions Of An Accidental Crit, Pedro A. Malavet

UF Law Faculty Publications

I attend LatCrit conferences to be educated on what I regard as the most exciting legal scholarship being produced today. Therefore, I naturally jumped at the opportunity to help organize the Fourth Annual LatCrit Conference and to chair one of its Plenary Panels. I have penned this Essay for the purpose not only of joining Critical Race Theory ("CRT") discourse, but also to create a recorded history of LatCrit travels.

In Part I of this Essay, I will describe the process that led the Planning Committee to include the Literature and Arts as Antisubordination Praxis: LatCrit Theory and Cultural Production …

“Gay Rights” For “Gay Whites”?: Race, Sexual Identity, And Equal Protection Discourse, Darren Lenard Hutchinson

UF Law Faculty Publications

While the resolution of the problem of gay and lesbian inequality will ultimately turn on a host of social, legal, political, and ideological variables, this Article argues that the success or failure of efforts to achieve legal equality for gays, lesbians, bisexuals, and transgendered individuals will depend in large part on how scholars and activists in this field address questions of racial identity and racial subjugation. Commonly, these scholars and activists currently discuss race by use of analogies between “racial discrimination” and “sexual orientation discrimination,” or between “people of color” and “gays and lesbians.” On one level, the “comparative approach” …

Culture, Nationhood, And The Human Rights Ideal, Berta E. Hernández-Truyol, Sharon E. Rush

UF Law Faculty Publications

This paper was written as a part of a Symposium on Culture, Nation, and LatCrit (Latina/o Communities and Critical Race) Theory and focuses on the concept of voice and silence. Part I locates the works in the axis of silence and power. Part II explores how critical theory and international human rights norms can be used to develop a methodology to analyze and detect the exclusion or silencing of voices. A paradigm is developed that, by internationalizing voice, serves as a useful tool to explore power-based silencing. In Part III, the article illustrates how the proposed paradigm can focus the …

Law As Interpretation, Charles W. Collier

UF Law Faculty Publications

In this Article, I shall trace out separate professional narratives in common law, constitutional law, and in legal cases turning on the distinction between community and society (Part III). But first I should like to situate these legal-professional narratives within a broader interdisciplinary framework (Part II).

Beyond The Rhetoric Of “Dirty Laundry”: Examining The Value Of Internal Criticism Within Progressive Social Movements And Oppressed Communities, Darren Lenard Hutchinson

UF Law Faculty Publications

Several historical reasons explain opposition to the airing of internal criticism by scholars and activists within progressive social movements and by members of subordinate communities. Opponents often contend that such criticism might reinforce negative stereotypes of subordinate individuals and that reactionary movements and activists might appropriate and misuse negative portrayals of the oppressed. A related fear holds that internal criticism will dismantle political unity within oppressed communities and progressive social movements, thereby forestalling social change. While these concerns provide some context for understanding the resistance to internal criticism within progressive social movements, I argue in this essay that they do …

Piercing Pareto Superiority: Real People And The Obligations Of Legal Theory, Jeffrey L. Harrison

UF Law Faculty Publications

This essay has two purposes. The first is to demonstrate that the appearance of mutual assent and Pareto Superiority are weak bases for enforcing agreements. Pareto Superiority, as unassailable as it may seem, is paper-thin and frequently based on illusions and a normatively meaningless assessment of what it means to be better off. The approach here is one of piercing Pareto Superiority in order to examine the human factors that may determine whether an agreement occurs and its distributive consequences. Relative deprivation is the instrument used. The second purpose is to suggest that it is the obligation of legal theory …

Out Yet Unseen: A Racial Critique Of Gay And Lesbian Legal Theory And Political Discourse, Darren Lenard Hutchinson

UF Law Faculty Publications

No abstract provided.

Defensor Fidei: The Travails Of A Post-Realist Formalist, Lyrissa Barnett Lidsky

UF Law Faculty Publications

This Article explores common formalist themes, asking not whether formalism's aspirations are attainable but why formalists still struggle to attain them in the face of sustained attacks by anti-formalists. After briefly sketching the tenets of formalism in Section I, this Article turns to an examination of Summers' "post-realist formalism." Finally, this Article probes the philosophical and psychological attractions of formalism and suggests that formalism's promise of stability and order may be essential to the effective functioning of the legal system, even if this promise can never be realized.

A Pragmatic Critique Of Modern Evidence Scholarship, Michael L. Seigel

UF Law Faculty Publications

This Article contends that strict adherence to optimistic rationalism has blinded evidence scholars to the reality that the law of evidence is as indeterminate as all other areas of the law. At its core is not a single goal -- the attainment of truth -- but a number of important, complex, and, alas, competing considerations. Answers to questions concerning the appropriate configuration of evidence doctrine cannot be deduced from a unitary principle; indeed, they cannot be deduced at all. Rather, arguments about evidence doctrine must be conducted in the realm of "practical reason." Practical reason is the process through which …