Civil Rights Law

The New Pornography Wars

Julie Dahlstrom

Abstract The world’s largest online pornography conglomerate, MindGeek, has come under fire for the publishing of “rape videos,” child pornography, and nonconsensual pornography on its website, Pornhub. In response, as in the “pornography wars” of the 1970s and 1980s, lawyers and activists have turned to civil remedies and filed creative anti- trafficking lawsuits against MindGeek […]

Fair Notice, The Rule of Law, and Reforming Qualified Immunity

Nathan S. Chapman

Abstract After a series of highly publicized incidents of police violence, a growing number of courts, scholars, and politicians have demanded the abolition of qualified immunity. The doctrine requires courts to dismiss damages actions against officials for violating the plaintiff’s constitutional rights unless a reasonable officer would have known that the right was “clearly established.” […]

Come, Stay, and Enjoy Your Day: Sex Trafficking and Franchisor Liability Under Section 1595 of the Trafficking Victims Protection Reauthorization Act

Alexa Goldstein

Abstract Commercial sex trafficking continues to be a major national and international issue. In 2000, Congress enacted the Trafficking Victims Protection Act to combat sex trafficking, protect victims, and punish violators through developing international minimum standards and a complex, national legal scheme for bringing human trafficking claims. In 2003, Congress added § 1595, a civil […]

Algorithmic Inclusion

Eldar Haber

Abstract Response to Peter Yu, The Algorithmic Divide and Equality in the Age of Artificial Intelligence Artificial Intelligence (AI) is expected to dramatically change humanity. From the automation of daily tasks and labor, to curing diseases and handling disasters, many forecast that human beings will soon begin enjoying the benefits of AI technology within many […]

Affording The Franchise: Amendment 4 & The Senate Bill 7066 Litigation

Dalia Figueredo

Abstract Felon re-enfranchisement statutes that condition the restoration ofvoting rights on the payment of legal financial obligations have beenchallenged under the Fourteenth and Twenty-Fourth Amendments to theU.S. Constitution. To date, these challenges have been unsuccessfulbecause felons are not a protected class, disenfranchised felons do nothave a fundamental right to vote under existing case law, and […]

Oh What a Truism the Tenth Amendment Is: State Sovereignty, Sovereign Immunity, and Individual Liberties

Sharon E. Rush

Abstract 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 […]

Sweet Child O’ Mine: Adult Adoption & Same-Sex Marriage in the Post-Obergefell Era

Written by: Robert Keefe

Abstract Gay and lesbian partners used adult adoption to create family relationships and to ensure inheritance and property rights in the decades before the Supreme Court’s decision in Obergefell v. Hodges legalized same-sex marriage nationwide. Same-sex partners who chose adult adoption as an alternative to marriage before the Obergefell decision must now dissolve the adoption […]

Assessing the Viability of Implicit Bias Evidence in Discrimination Cases: An Analysis of the Most Significant Federal Cases

Written by: Anthony Kakoyannis

Abstract 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 […]

“I Am Cait,” But It’s None of Your Business: The Problem of Invasive Transgender Policies and a Fourth Amendment Solution

Written by: Elise Holtzman

Abstract 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 […]

When Girls Play With G.I. Joes and Boys Play With Barbies: The Path to Gender Reassignment in Minors

Written by: Nicole Burt

Abstract 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 […]

Iesha S. Nunes, "Hands Up, Don't Shoot": Police Misconduct and the Need for Body Cameras

Abstract 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 […]

Daniel J. DiMatteo, To Enforce a Privacy Right: The Sovereign Immunity Canon and the Privacy Act's Civil Remedies Provision After Cooper

In 2005, a joint investigation between separate government agencies revealed that Stanmore Cooper, a pilot, failed to disclose to the Federal Aviation Administration that he was HIV positive. Cooper sued the agencies in the United States District Court for the Northern District of California, claiming that they violated the Privacy Act by disclosing his medical records to one another without […]

Camilla Cohen, Goodyear Dunlop's Failed Attempt to Refine the Scope of General Personal Jurisdiction

In first-year civil procedure, students spend a great deal of time parsing an “answer” to a deceptively simple question: When may a state exercise its adjudicatory authority over an out-of-state defendant? Since Pennoyer v. Neff, the United States Supreme Court has addressed the issue of personal jurisdiction in at least thirty-five cases spanning three centuries. Following the Court’s decision in International […]

Steven G. Calabresi & Abe Salander, Religion and the Equal Protection Clause: Why the Constitution Requires School Vouchers

Ask anyone whether the Constitution permits discrimination on the basis of religion, and the response will undoubtedly be no. Yet the modern Supreme Court has not recognized that the antidiscrimination command of the Fourteenth Amendment protects religion in the same way that the Amendment protects against discrimination on the basis of race or gender. In […]

Christian Turner, State Action Problems

The state action doctrine is a mess. Explanations for why federal courts sometimes treat the private actions of private parties as public actions subject to the Constitution, as the Supreme Court did in Shelley v. Kraemer, are either vastly over-inclusive or fail to explain our law and values. A better approach is to understand the […]

Janai S. Nelson, The First amendment, Equal Protection and Felon Disenfranchisement: A New Viewpoint

This Article engages the equality principles of the First Amendment and the Equal Protection Clause to reconsider the constitutionality of one of the last and most entrenched barriers to universal suffrage—felon disenfranchisement. A deeply racialized problem, felon disenfranchisement is additionally and independently a legislative judgment as to which citizen‘s ideas are worthy of inclusion in […]

Nancy Leong, The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream

American culture is steeped in the mythology of the open road. In our collective imagination, the road represents freedom, escape, friendship, romance, and above all, the possibility for a better life. But our shared dream of the open road comes to a halt in the mundane reality of the traffic stop—a judicially authorized policing procedure […]

Jordan E. Pratt, An Open and Shut Case: Why (and How) The Eleventh Circuit Should Restrain the Government's Forum Closure Power

63 Fla. L. Rev. 1487 (2011)| | | |||| The Supreme Court has made it clear that when the government opens a nontraditional public forum, it retains the power to shut down the forum subsequently. But the Court has not specifically addressed whether this forum closure power knows any constitutional limitations. Several circuits, including the […]

Heather Reynolds, Irreconcilable Regulations: Why the Sun Has Set on the Cuban Adjustment Act in Florida

63 Fla. L. Rev. 1013 (2011)|  | | NOTE :: Just past midnight, four Cubans walked off the beach in the dark and began to wade through warm waves out into the Florida Straits. They walked nearly a mile in waist-high water, carrying all of their possessions above their heads. They knew to stop when they […]

David Marcus, Flawed but Noble: Desegregation Litigation and its Implications for the Modern Class Action

63 Fla. L. Rev. 657 (2011)| | | | INTRODUCTION :: From the perspective of the present day, Rule 23 of the Federal Rules of Civil Procedure contains a difficult puzzle. After a court certifies a class pursuant to Rule 23(b)(3) in a money damages case, absent class members must receive notice and have a […]

Robert A. Garda, Jr., The White Interest in School Integration

63 Fla. L. Rev. 599 (2011)| | | | ABSTRACT :: Discussions concerning desegregation, affirmative action, and voluntary integration focus primarily, if not exclusively, on whether such policies harm or benefit minorities. Scant attention is paid to the benefits whites receive in multiracial schools, despite white interests underpinning more than thirty years of Supreme Court […]

Hillel Y. Levin, Resolving Interstate Conflicts Over Same-Sex Non-Marriage

63 Fla. L. Rev. 47 (2011)| | | | ABSTRACT :: States have adopted several different regimes of recognition for same-sex couples. A few states allow same-sex couples to marry; several others offer marriage- like partnerships (usually called civil unions), which provide all or nearly all of the substantive rights and responsibilities associated with marriage; […]

Jennifer Lynch, The Eleventh Amendment and Federal Discovery: A New Threat to Civil Rights Litigation

62 Fla. L. Rev. 203 (2010) |   |   |   | ABSTRACT :: Lawyers for the State of California have argued recently in several federal civil rights cases that the state sovereign immunity doctrine bars all discovery issued to the state, its agencies, and its employees. While courts agree that sovereign immunity generally […]

Jeannette Cox, Disability Stigma and Intraclass Discrimination

62 Fla. L. Rev. 429 (2010) |   |   |   | ABSTRACT :: By dramatically enlarging the Americans with Disabilities Act’s (ADA) protected class, the recent amendments to the ADA increase the opportunities for employers to replace one member of the ADA’s protected class with another. Although disparities in the social stigma associated […]

Allison Sirica, The New Federal Pleading Standard: Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)

62 Fla. L. Rev. 547 (2010) |   |   |   | CASE COMMENT :: In the wake of the September 11, 2001 terrorist attacks, Javaid Iqbal, a Muslim citizen of Pakistan, was arrested and detained in a maximum security prison in the United States as a person of “high interest.” As a detainee, […]

Dale E. Ho, Silent at Sentencing: Waiver Doctrine and a Capital Defendant's Right to Present Migitating Evidence After Schriro v. Landrigan

62 Fla. L. Rev. 763 (2010) | | | | CASE COMMENT ::The consideration of mitigating evidence-evidence that weighs against the imposition of the death penalty in a capital defendant’s individual case-has been deemed a “constitutionally indispensable” feature of a valid capital sentencing scheme. And yet, Jeffrey Landrigan, like many capital defendants, was sentenced to […]

Anita Bernstein, Civil Rights Violations – Broken Windows: De Mimis Curet Lex

62 Fla. L. Rev. 895 (2010) | | | | ABSTRACT :: Civil rights violations that appear relatively slight may warrant judicial redress despite their small size; some of them point up important principles. Leaving these violations unremedied may contribute to an ambient lawlessness that can foster bigger harms. A small infringement in this respect […]

Jeff Fabian, Don't Tase Me Bro!: A Comprehensive Analysis of the Laws Governing Taser Use by Law Enforcement

62 Fla. L. Rev. 763 (2010) | | | | INTRODUCTION ::Financially destitute and homeless, a man began to sob after receiving a speeding ticket. When the man refused to sign the ticket, the ticketing officer arrested the man. The officer placed the man in handcuffs and began leading him to the patrol car. As […]

Richard D. Shane, Teachers as Sexual Harassment Victims: The Inequitable Protections of Title VII In Public Schools

61 Fla. L. Rev. 355 (2009) | | | | INTRODUCTION :: In 1992, a fifth-grade girl complained to her public school teacher that the boy sitting next to her repeatedly rubbed his body against her and made sexually explicit comments to her. After school authorities ignored her repeated complaints, the student filed suit against […]

Patricia Alten, Gina: A Genetic Information Nondiscrimination Solution in Search of a Problem

61 Fla. L. Rev. 379 (2009) | | | | ABSTRACT :: “Genetic discrimination is unfair to workers and their families. It is unjustified-among other reasons, because it involves little more than medical speculation. A genetic predisposition toward cancer or heart disease does not mean the condition will develop. To address the potential use of […]

Dayna B. Royal, Take Your Gun to Work and Leave It in The Parking Lot: Why The OSH Act Does Not Preempt State Guns-At-Work Laws

61 Fla. L. Rev. 475 (2009) | | | | INTRODUCTION :: Two robbers entered an Alabama restaurant and forced customers and employees into a walk-in refrigerator at gunpoint. Fortunately, one of the customers, legally armed with his own pistol, shot the robbers before any hostage was injured. In New York City, a fifty-six year-old […]

Alice Ristroph, How (Not) to Think Like a Punisher

61 Fla. L. Rev. 727 (2009) | | | | INTRODUCTION :: The new sentencing provisions of the Model Penal Code (MPC) forcefully assert the nature of sentencing as judicial province. “One underlying philosophy of the revised Code is that sentencing is, at its core, a judicial function.” Specifically, the new provisions aim to secure […]

Richard L. Hasen, Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar

61 Fla. L. Rev. 979 (2009) | | | | INTRODUCTION :: Akhil Amar begins his impressive Dunwody Lecture by questioning whether there “are any new things left to say about the Bush-Gore episode.” 1 It is a legitimate question to ask, given the torrent of scholarship since the 2000 Florida debacle. In some ways, […]

Ellen D. Katz, From Bush v. Gore to Namudno: A Response to Professor Amar

61 Fla. L. Rev. 991 (2009) | | | | INTRODUCTION :: In his Dunwody Lecture, Professor Akhil Amar invites us to revisit the Bush v. Gore controversy and consider what went wrong. This short essay responds to Professor Amar by taking up his invitation and looking at the decision through a seemingly improbable lens, […]

Huyen Pham, When Immigration Borders Move

61 Fla. L. Rev. 1115 (2009) | | | | ABSTRACT :: With recent immigration enforcement efforts, we have created a completely new paradigm of moving borders: laws, enacted at all levels of government, that require proof of legal immigration status in order to obtain a driver’s license, a job, rental housing, government need-based assistance, […]

Stephen A. Higginson, Constitutional Advocacy Explains Constitutional Outcomes

60 Fla. L. Rev. 857 (2008) | | | | INTRODUCTION :: In oral argument in Baker v. Carr, Attorney Z.T. Osborn, Jr., on behalf of Tennessee voters arguing that the U.S. Supreme Court should hold legislative apportionment a justiciable issue, exclaimed that “the motto of the Supreme Court of Tennessee is Fiat justicia ruat […]

Lindsay Roshkind, Employment Law: An Adverse Action Against Employers: The Supreme Court's Expansion of Title VII's Anti-Retaliation Provision

59 Fla. L. Rev. 707 (2007) | | | | TEXT :: State law required Petitioner to maintain workers’ compensation coverage for his freight trucking business. Petitioner contracted with Respondent to provide this insurance. After Petitioner canceled the policy and filed a Chapter 11 bankruptcy, Respondent, in an amended claim, asserted that the unpaid premiums […]

Natalie Liem, Mean What You Say, Say What You Mean: Defining the Aggravated Felony Deportation Grounds to Target More than Aggravated Felons

59 Fla. L. Rev. 1071 (2007) | | | | INTRODUCTION :: Jose Rodriguez is one of the lucky ones. Rodriguez, a legal permanent resident of the United States since 1990, was arrested in May 2003 for possession of less than one gram of cocaine. Rodriguez pleaded no contest and was sentenced to probation. Nearly […]

Sandra Day O'Connor, Remarks on Judicial Independence

58 Fla. L. Rev. 1 (2006) | | | | TEXT :: Dedication of the Lawton Chiles Legal Information Center, University of Florida, Levin College of Law, Friday, September 9, 2005 It is a great pleasure to be here at the University of Florida to dedicate the Lawton Chiles Legal Information Center. Your new building […]

Robert Michael Kline, Constitutional Law: Is There a Protected Interest in Protection (Or Are Court Orders Merely Suggestions)?

58 Fla. L. Rev. 459 (2006) | | | | TEXT :: Respondent’s husband abducted his three little girls, ages 10, 8, and 7, and shot each of them in the head at close range. He committed this abhorrent and tragic triple murder despite the fact that Respondent had obtained a restraining order commanding him […]

Diane Lourdes Dick, Constitutional Law: Reaffirming Every Floridian's Broad and Fundamental Right to Privacy

56 Fla. L. Rev. 447 (2004) | | | | TEXT :: In 1999, the Florida Legislature passed the Parental Notice of Abortion Act (the Act), which required minors seeking an abortion to either notify a parent prior to the procedure or obtain court approval to waive parental notice. A minor choosing the latter option […]

Janelle A. Weber, The Spending Clause: Funding a Filth-Free Internet or Filtering out the First Amendment?

56 Fla. L. Rev. 471 (2004) | | | | TEXT :: The Children’s Internet Protection Act (CIPA) sets conditions on public libraries’ receipt of federal financial assistance for Internet access. Under CIPA, libraries must install filters on all of their Internet-connected computers to help block obscene and pornographic images and prevent minors from accessing […]

David Crump, The Narrow Tailoring Issue in The Affirmative Action Cases: Reconsidering the Supreme Court's Approval in Gratz and Grutter of Race-Based Decision-Making by Individualized Discretion

56 Fla. L. Rev. 483 (2004) | | | | INTRODUCTION :: The Supreme Court’s doctrine known as strict scrutiny is divided into two elements. First, there is the requirement that a State identify a “compelling governmental interest” that supports the state’s use of race as a factor. Second, and just as important, there is […]

Stephen A. Siegel, The Conscientious Congressman's Guide to the Electoral Count Act of 1887

56 Fla. L. Rev. 541 (2004) | | | | INTRODUCTION :: Electoral vote counting is the oldest activity of the national government and among the oldest questions of constitutional law. It was Congress’s first task when a quorum appeared in the nation’s new legislature on April 6, 1789. It has happened every four years […]

Dennis J. Shields, A Response to Professor Crump's Narrow Tailoring Analysis of Grutter: Does It Matter How Many Angels Can Dance on the Head of a Pin?

56 Fla. L. Rev. 761 (2004) | | | | INTRODUCTION :: On occasion the Supreme Court is faced with a conflict between important public values. The two cases contesting race-conscious admissions decision-making at the University of Michigan placed the Court in just such a circumstance. The plaintiffs represented the powerful principle of color-blindness in […]

Stephen B. Presser, A Conservative Comment on Professor Crump

56 Fla. L. Rev. 789 (2004) | | | | INTRODUCTION :: My assignment was to comment on Professor Crump’s article from a conservative perspective, to complement the response to his article from Dean Dennis Shields, who had been instrumental in administering the University of Michigan School of Law’s affirmative action policies approved in Grutter […]