Law Commons^™

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. …

Sometimes They Don't Die: Can Criminal Justice Reform Measures Help Halt Police Sexual Assault On Black Women?, Michelle S. Jacobs

UF Law Faculty Publications

In the eighteen months between March 2019 and August 2020, at least eight Black women were murdered by the police. Breonna Taylor was one of them. Officer Brett Hankison, one of the three officers who murdered Breonna Taylor, was eventually discharged from the Louisville Police Department. In the memo discharging him, the police chief cited behavior that amounted to an extreme indifference to the value of human life: Hankison blindly fired ten rounds into the home of Ms. Taylor's neighbor. Additionally, in the aftermath of Ms. Taylor's death, two women came forward and accused Hankison of sexually assaulting them while …

Direct And Structural Violence Against Transgender Populations: A Comparative Legal Study, Brian Kritz

Florida Journal of International Law

This Article is a comparative study exploring how the law impacts Transgender rights and Transgender access to justice. In countries where the law is hostile to Transgender rights, such law perpetuates structural violence, promotes discrimination and persecution, causing direct violence against Transgender populations. In countries where the law is more progressive, an interesting phenomenon exists. In these countries, where Transgender lives can be more openly lived, Trans-violence rates are noticeably higher than in countries where Transgender rights are restricted. This scholarship was developed with an eye towards reforming the law in countries with problematic legal structures and continuing efforts to …

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

Florida Law Review

The United States Supreme Court 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. The Court has infused these interpretations 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 critical principles that inform the Court’s Article I, …

Disclosing Discrimination, Stephanie Bornstein

UF Law Faculty Publications

In the United States, enforcement of laws prohibiting workplace discrimination rests almost entirely on the shoulders of employee victims, who must first file charges with a government agency and then pursue litigation themselves. While the law forbids retaliation against employees who complain, this does little to prevent it, in part because employees are also responsible for initiating any claims of retaliation they experience as a result of their original discrimination claims. The burden on employees to complain—and their justified fear of retaliation if they do so—results in underenforcement of the law and a failure to spot and redress underlying structural …

Rural Resentment And Lgbtq Equality, Luke A. Boso

Florida Law Review

In 2015, the U.S. Supreme Court in Obergefell v. Hodges settled a decades-long national debate over the legality of same-sex marriage. Since Obergefell, however, local and state legislatures in conservative and mostly rural states have proposed and passed hundreds of anti-LGBTQ bills. Obergefell may have ended the legal debate over same-sex marriage, but it did not resolve the cultural divide. Many rural Americans, especially in predominately white communities, feel that they are under attack. Judicial opinions and legislation protecting LGBTQ people from discrimination are serious threats to rural dwellers because they conflict with several core tenets of rural identity: community …

The Soul Savers: A 21st Century Homage To Derrick Bell’S Space Traders Or Should Black People Leave America?, Katheryn Russell-Brown

UF Law Faculty Publications

Narrative storytelling is a staple of legal jurisprudence. The Case of the Speluncean Explorers by Lon Fuller and The Space Traders by Derrick Bell are two of the most well-known and celebrated legal stories. The Soul Savers parable that follows pays tribute to Professor Bell’s prescient, apocalyptic racial tale. Professor Bell, a founding member of Critical Race Theory, wrote The Space Traders to instigate discussions about America’s deeply rooted entanglements with race and racism. The Soul Savers is offered as an attempt to follow in Professor Bell’s narrative footsteps by raising and pondering new and old frameworks about the rule …

Children’S Equality Rights: Every Child’S Right To Develop To Their Full Capacity, Nancy E. Dowd

UF Law Faculty Publications

Children are born equal. Yet as early as eighteen months, hierarchies emerge among children. These hierarchies are not random but fall into patterns by race, gender and class. They are not caused nor voluntarily chosen by children or their parents. The hierarchies grow, persist, and are made worse by systems and policies created by the state, perpetuating the position of the privileged and continuing the disadvantage of the subordinated. Children’s equal right to develop to their capacity is severely undermined by policies and structures that hamper and block the development of some by creating barriers and challenges or failing to …

Assessing The Viability Of Implicit Bias Evidence In Discrimination Cases: An Analysis Of The Most Significant Federal Cases, Anthony Kakoyannis

Florida Law Review

The theory of implicit bias occupies a rapidly growing field of scientific research and legal scholarship. With the advent of tools measuring individuals’ subconscious biases toward people of other races, genders, ages, national origins, religions, and sexual orientations, scholars have rushed to explore the ways in which these biases might affect decision-making and produce broad societal consequences. The question that remains unanswered for scholars, attorneys, and judges is whether evidence of implicit bias and its effects can or should be used in legal proceedings. Although the study of implicit bias dates back several decades, only recently have judicial opinions begun …

Antidiscriminatory Algorithms, Stephanie Bornstein

UF Law Faculty Publications

Can algorithms be used to advance equality goals in the workplace? A handful of legal scholars have raised concerns that the use of big data at work may lead to protected class discrimination that could fall outside the reach of current antidiscrimination law. Existing scholarship suggests that, because algorithms are “facially neutral,” they pose no problem of unequal treatment. As a result, algorithmic discrimination cannot be challenged using a disparate treatment theory of liability under Title VII of the Civil Rights Act of 1964 (Title VII). Instead, it presents a problem of unequal outcomes, subject to challenge using Title VII’s …

Equality, Equity, And Dignity, Nancy E. Dowd

UF Law Faculty Publications

In this Essay I explore the definition and scope of children’s equality. I argue that equality includes equity and dignity. The meaning of each of these concepts is critical in imagining a deep, rich vision of equality, and in constructing policies to achieve that vision. This definition of equality creates affirmative rights, demands action to resolve structural discrimination that creates and sustains hierarchies among children, and requires affirmative support for children’s developmental equality.

The Disenfranchisement Of Ex-Felons In Florida: A Brief History, Sarah A. Lewis

UF Law Faculty Publications

This paper will explore the origins of Florida’s felony disenfranchisement laws in the period from 1865 to 1968. The first part of this paper will review the Thirteenth Amendment to the U.S. Constitution, which ended slavery, and the Florida Black Code, which sought to return freedmen to a slavery-like status. The second part of the paper will explore Florida’s reaction to the passage of the Reconstruction Act of 1867, which conditioned reentrance into the Union on the writing of new state constitutions by former Confederate states extending the right to vote to all males regardless of race, and ratification of …

I Am Cait, But It's None Of Your Business: The Problem Of Invasive Transgender Policies And A Fourth Amendment Solution, Elise Holtzman

Florida Law Review

Transgender people constitute a distinct minority with unique legal battles. There is a widespread societal misunderstanding of what it means to be transgender that results in treating the transgender community the same as their lesbian, gay, and members of bisexual counterparts. This misunderstanding is even more prevalent in the legal context, resulting in a serious failure of courts to protect transgender individuals’ constitutional rights. This Note explores why the current legal treatment of transgender rights is inadequate. This Note then argues that the Fourth Amendment right to privacy should be construed outside of the criminal context and should be utilized …

When Girls Play With G.I. Joes And Boys Play With Barbies: The Path To Gender Reassignment In Minors, Nicole Burt

Florida Law Review

Currently, the process of gender reassignment in minors requires parental consent and the approval of a mental-health counselor. The actual treatment can begin with puberty blockers-which stall the beginnings of puberty-followed by hormone injections to transform the minor into the requested gender. The hormone injections are thought to have irreversible features, but the effects of these injections are largely untested. The final step, surgical reassignment, is seemingly limited to those over the age of eighteen. The process of reassignment in minors has seen a substantial increase nationwide over the past decade, although the exact number of those seeking reassignment is …

Equal Work, Stephanie Bornstein

UF Law Faculty Publications

Most Americans have heard of the gender pay gap and the statistic that, today, women earn on average eighty cents to every dollar men earn. Far less discussed, there is an even greater racial pay gap. Black and Latino men average only seventy-one cents to the dollar of white men. Compounding these gaps is the “polluting” impact of status characteristics on pay: as women and racial minorities enter occupations formerly dominated by white men, the pay for those occupations goes down. Improvement in the gender pay gap has been stalled for nearly two decades; the racial pay gap is actually …

Defamation Per Se And Transgender Status: When Macro-Level Value Judgments About Equality Trump Micro-Level Reputational Injury, Clay Calvert, Ashton T. Hampton, Austin Vining

UF Law Faculty Publications

This Article uses the September 2017 defamation decision in Simmons v. American Media, Inc. as a springboard for examining defamatory meaning and reputational injury. Specifically, it focuses on cases in which judges acknowledge that plaintiffs have suffered reputational harm yet rule for defendants because promoting the cultural value of equality weighs against redress. In Simmons, a normative, axiological judgment--that the law should neither sanction nor ratify prejudicial views about transgender individuals-- prevailed at the trial court level over a celebrity's ability to recover for alleged reputational harm. Simmons sits at a dangerous intersection: a crossroads where a noble judicial desire …

The Violent State: Black Women's Invisible Struggle Against Police Violence, Michelle S. Jacobs

UF Law Faculty Publications

Black women have a very specific history with the state and law enforcement that is not replicated among other women’s communities, and it is that unique situation that is the focus of this Article. Part I of this Article explores the historical roots of Black women’s interaction with the state. Part II of this Article is broken into two sections. The first will cover police killings of Black women. The second part of the section will explore the conditions under which Black women are physically assaulted by the police. Part III of the Article seeks to highlight when the police …

Student Surveillance, Racial Inequalities, And Implicit Racial Bias, Jason P. Nance

UF Law Faculty Publications

In the wake of high-profile incidents of school violence, school officials have increased their reliance on a host of surveillance measures to maintain order and control in their schools. Paradoxically, such practices can foster hostile environments that may lead to even more disorder and dysfunction. These practices may also contribute to the so-called “school-to-prison pipeline” by pushing more students out of school and into the juvenile justice system. However, not all students experience the same level of surveillance. This Article presents data on school surveillance practices, including an original empirical analysis of restricted data recently released by the U.S. Department …

Undignified: The Supreme Court, Racial Justice, And Dignity Claims, Darren Lenard Hutchinson

UF Law Faculty Publications

The Supreme Court has interpreted the Equal Protection Clause as a formal equality mandate. In response, legal scholars have advocated alternative conceptions of equality, such as antisubordination theory, that interpret equal protection in more substantive terms. Antisubordination theory would consider the social context in which race-based policies emerge and recognize material distinctions between policies intended to oppress racial minorities and those designed to ameliorate past and current racism. Antisubordination theory would also closely scrutinize facially neutral state action that systemically disadvantages vulnerable social groups. The Court has largely ignored these reform proposals. Modern Supreme Court rulings, however, have invoked the …

Straight Out Of Compton: Developmental Equality And A Critique Of The Compton School Litigation, Nancy E. Dowd

UF Law Faculty Publications

In Part I, I set out my developmental equality model in three sections. First, I briefly explore the ecological perspective on child development, a broadly accepted developmental model, and its relation to best interests. Second, I consider the limitations of a ‘neutral’ ecological perspective, using as my example data about the life course of African American boys from birth to age 18. Finally, I suggest how to shift the lens to one of developmental equality, using the theoretical models of Cynthia Garcia Coll and Margaret Beale Spencer. While linked to the experience of children of color in the United States, …

Moving Forward By Looking Back: The Retroactive Application Of Obergefell, Lee-Ford Tritt

UF Law Faculty Publications

The recent Supreme Court decision of Obergefell v. Hodges has forever altered American jurisprudence. Not only did this decision make same-sex marriage legal in all fifty states, but it also required states to recognize same-sex marriages from other states in accordance with the 14th Amendment. The Court’s holding in Obergefell raises a fundamental question with serious legal and financial significance: when exactly do these once unrecognized marriages legally begin? And to what extent must courts apply Obergefell retroactively? The stakes are high and substantive financial effects are pending on the answer to this question — for, with marriage, comes wide-ranging …

Hands Up, Don't Shoot: Police Misconduct And The Need For Body Cameras, Iesha S. Nunes

Florida Law Review

The 2014 shooting of Michael Brown in Ferguson, Missouri is probably the most notable of the many recent cases in the media involving police officers' use of excessive force. After Officer Darren Wilson shot and killed Brown, varying accounts of what transpired between the two men surfaced. Officer Wilson claimed he was defending himself against Brown when he fired the fatal shots; however, other witnesses claimed Brown had his hands raised above his head in a position of surrender when Officer Wilson killed him. This case highlights the need for police officers to wear body cameras because the extremely different …

Unifying Antidiscrimination Law Through Stereotype Theory, Stephanie Bornstein

UF Law Faculty Publications

Has litigation under Title VII of the Civil Rights Act of 1964 reached the limit of its utility in advancing workplace equality? After four decades of forward progress on antidiscrimination law in the courts, Supreme Court decisions in the last decade have signaled a retrenchment, disapproving of key theories scholars and advocates had pursued to address workplace discrimination in its modern, more subtle and structural forms. Yet sex and race inequality at work endure, particularly in pay and at the top of organizations.

Notably, while the Roberts Court majority appears skeptical that discrimination persists and resistant to recognizing the role …

Dismantling The School-To-Prison Pipeline: Tools For Change, Jason P. Nance

UF Law Faculty Publications

The school-to-prison pipeline is one of our nation’s most formidable challenges. It refers to the trend of directly referring students to law enforcement for committing certain offenses at school or creating conditions under which students are more likely to become involved in the criminal justice system, such as excluding them from school. This article analyzes the school-to-prison pipeline’s devastating consequences on students, its causes, and its disproportionate impact on students of color. But most importantly, this article comprehensively identifies and describes specific, evidence-based tools to dismantle the school-to-prison pipeline that lawmakers, school administrators, and teachers in all areas can immediately …

Black Boys Matter: Developmental Equality, Nancy E. Dowd

UF Law Faculty Publications

The life course of Black boys is a stark reminder of the realities of inequality. While recent attention to policing and high profile deaths of Black youth and adults has raised consciousness of life-threatening situations, this focus exposes the most visceral and deadly aspect of a much larger set of issues. Those issues begin at birth, and are powerfully framed before adulthood, creating inequality particularly when the individual is most vulnerable, in childhood. This Article confronts the inequalities of Black boys and their subordination, as a vehicle to expose inequalities more generally based on children’s identities.

The life course of …

After Obergefell V. Hodges: The Continuing Battle Over Equal Rights For Sexual Minorities In The United States, Simone Chriss, Danaya C. Wright

UF Law Faculty Publications

This article examines the pathbreaking U.S. Supreme Court decision in Obergefell v. Hodges that held same-sex marriage was a fundamental right that could not be denied by any state, despite the myriad same-sex marriage bans that had been passed in a majority of states. After explaining the constitutional jurisprudence of due process and equal protection, the article then examines the history of the same-sex marriage movement and the Obergefell decision. We conclude by discussing how the jurisprudential theory of the case, fundamental rights under the due process clause, narrows the scope of the case’s precedential value. Although gay rights activists …

The Tort Label, Sandra F. Sperino

Florida Law Review

Courts and commentators often label federal discrimination statutes as torts. The tort label leads to reasoning that is superficial and not transparent about its motivations and goals. Courts do not engage in nuanced discussions about the kind of reasoning they are using or the values they are prioritizing in reaching the result. Importantly, the tort label gives the appearance that the courts are engaging in a form of traditional analysis that is noncontroversial. This Article argues that multiple claims courts make about the employment discrimination statutes related to the tort label are so baseless that they do not even reach …

Recognizing Discrimination: Lessons From White Plaintiffs, Wendy Parker

Florida Law Review

The Supreme Court has developed a robust equal protection jurisprudence to recognize the rights of whites complaining of race conscious governmental activity. This was particularly reflected in the Court’s opinion in Parents Involved, where the Roberts Court radically repositioned the meaning of Brown v. Board of Education. That opinion all but guarantees that eventually Abigail Noel Fisher will win her case against the University of Texas. In the meantime, however, the case also holds promise for minority plaintiffs. While many have lamented Parents Involved and its use of Brown, we have missed the promise of the Roberts …

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 …

An Empirical Analysis Of Diversity In The Legal Profession, Jason P. Nance, Paul E. Madsen

UF Law Faculty Publications

The purpose of this Study is to empirically examine the diversity of the legal profession. The primary distinctive features of this empirical analysis are that it evaluates diversity in the legal profession by (a) carefully comparing it against other prestigious professions that have significant barriers to entry, and (b) focusing on young individuals who recently began their careers. These distinctions are made to isolate anomalies that are more likely caused by forces specific to the legal profession rather than general social forces that limit the eligibility of historically disadvantaged groups to pursue prestigious employment opportunities. Further, by narrowing our focus …