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Elizabeth Berenguer and Susan D. Rozelle, Florida Criminal Practice and Procedure (3rd ed., Michie, 2025)Clicking on the button will copy the full recommended citation.
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Elizabeth Berenguer, How Traditional Legal Rhetoric’s Myth of Neutrality Sustains Capitalism, 101 Denv. L. Rev. 721 (2024)Clicking on the button will copy the full recommended citation.
Through the lens of critical and comparative rhetoric, this Article examines how traditional legal rhetoric-the dominant analytical framework employed in the United States legal system-sustains capitalism and preserves inequities, such as financial precarity. This Article identifies the features that traditional legal rhetoric shares with the free capitalist market and then uses those features as an analytical framework to examine two cases that align with the theme of this Symposium on financial precarity and late capitalism: Bank of America v. Caulkett and Citizens United v. FEC. Comparing these two cases, the Court uses the same analytical tools of traditional legal rhetoric, albeit in contradictory ways, to reach outcomes that align with market values at the expense of the individual. More importantly, in both cases, the Court presents traditional legal reasoning as an objective, rational, unbiased, and neutral analytical framework, even though it is not actually objective, rational, unbiased, or neutral.
This myth that traditional legal reasoning is objective, rational, unbiased, and neutral aligns with the near-identical myth that the market is an objective, rational, unbiased, and neutral place where ransactions occur between individuals and entities who share similar bargaining power and play on a level field. Through these aligned myths, traditional legal rhetoric is essential to sustaining the free-market capitalism experiment. More importantly, traditional legal rhetoric cannot ever satisfactorily address the
inequities of the marketplace like financial precarity because traditional legal rhetoric was never intended to be egalitarian. Thus, in order to truly begin solving the problems of capitalism, advocates must understand how traditional legal rhetoric creates inequities and challenge the form and substance
of traditional legal rhetoric using other rhetorics, such as African Diasporic, Asian Diasporic, Indigenous, and Latine rhetorics. These insurrectionary
rhetorics establish frameworks for challenging dominant imperialist/colonialist power, centering community, and solving the real problems of inequity created by traditional legal rhetoric.
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Elizabeth Berenguer, Designing Problems to Enhance Student Learning, 28 Legal Writing 77 (2024)Clicking on the button will copy the full recommended citation.
A legal writing problem is much more than a mere assignment; it is an interactive learning experience that serves as a primary text for an entire course, facilitates learning, and results in work product that can be assessed to determine what students have learned. As such, professors must thoughtfully consider how the problem will facilitate student learning in light of the outcomes identified for the course. This Article argues that when designing a problem, legal writing professors should design the problem around rule structure because rule structure is what drives the organizational options and rhetorical choices available to the writer—other concerns, like area of law or “fun facts” are secondary considerations that may influence problem details but that should not govern the architecture of the problem itself. Designing a problem around rule structure leads to predictable sophisticated learning of analysis and organization, which makes it the most important consideration in problem design.
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Elizabeth Berenguer et al., Critical and Comparative Rhetoric: Unmasking Privilege and Power in Law and Legal Advocacy to Achieve Truth, Justice, and Equity (Bristol University Press, 2023)Clicking on the button will copy the full recommended citation.
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Elizabeth Berenguer et al., Gut Renovations: Using Critical and Comparative Rhetoric to Remodel How the Law Addresses Privileges and Power, 23 Harv. Latinx L. Rev. 205 (2020)Clicking on the button will copy the full recommended citation.
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Elizabeth Berenguer, The Color of Fear: A Cognitive-Rhetorical Analysis of How Florida’s Subjective Fear Standard in Stand Your Ground Cases Ratifies Racism, 76 Md. L. Rev. 726 (2017)Clicking on the button will copy the full recommended citation.
Law often functions as a mirror of societal values at a given point in time, but it is also a tool of social construction operating to either reinforce generally acceptable norms or to redefine norms that are no longer generally accepted. Through its use of the subjective fear standard, Florida’s Stand Your Ground functions as a tool of social construction in that it reinforces deeply entrenched racial bias and perpetuates racism by condoning and ratifying behavior consistent with the suspicion heuristic. In this way, it not only declares as acceptable those behaviors that are influenced by racial bias, but it also perpetuates racial bias by further burying individual awareness that the bias even exists.
Study after study confirm that Black men, by virtue of their race, are the most feared individuals in society. The theory of embodied rationality confirms that Americans experience a fear response based on race, a germane, innate biological characteristic that cannot possibly accurately communicate whether the other person is a threat. The suspicion heuristic explains the negative decisions and behaviors that result from the irrational fear created by deep-seated, largely invisible, racial bias.
Viewed through the lens of embodied rationality and particularly the suspicion heuristic, Florida’s Stand Your Ground statutory scheme condones, ratifies, reinforces, and perpetuates both overt and implicit racial bias. American culture is long overdue for major shifts in how it views and perceives race. Until law forces individuals to face the realities of racial bias, however, deep-seated beliefs about the value of Black lives, and the lives of other minorities, will continue to breed in the dark recesses of our minds.
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Elizabeth Berenguer, A Call for Change: A Contextual-Configurative Analysis of Florida’s Stand Your Ground Laws, 68 U. Miami L. Rev. 1051 (2014)Clicking on the button will copy the full recommended citation.
Florida’s Stand Your Ground has stood center stage since the tragic killing of Trayvon Martin. On the one hand, certain sectors of society are calling for its repeal, and on the other, proponents vigorously defended its value and efficacy. Despite the public outcry for reform, every attempt to repeal or change the law has been defeated. This Article examines whether Florida’s Stand Your Ground law is inconsistent with commonly-held societal values, and if so, what might prompt a change in the law.
To that end, this Article relies on the jurisprudential framework established by Myres S. McDougal and Harold D. Laswell which identifies the law as an expression of community interests and a source of authority rooted in community values. The common interests, or values, identified by McDougal and Laswell are power, enlightenment, wealth, well-being, skill, affection, respect, and rectitude. This Article examines these values in the context of Florida’s Stand Your Ground laws and analyzing them from competing perspectives to conclude the law is inconsistent with commonly-held community values.
This Article concludes by exposing the legislature’s reticence to repeal the statute as a reflection of its entrenched mode of thinking. It calls for opposition voices to collaborate in advancing reform messages aimed at deconstructing the entrenched categories and restructuring them to prompt an amendment to or repeal of Florida’s Stand Your Ground statutory scheme.
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Elizabeth Berenguer, Foreward: A Place at the Table, 1 Savannah L. Rev. vii (2014)Clicking on the button will copy the full recommended citation.
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Elizabeth Berenguer, Disaster Unaverted: Reconciling the Desire for a Safe and Secure State with the Grim Realities of Stand Your Ground (2013)Clicking on the button will copy the full recommended citation.
“On February 26, 2012, heavy pressures collided in a tempest resulting in Trayvon Martin’s death. On one side, an eager neighborhood watchman desperate to curtail the rising vandalism and crime in his gated community. On the other, a teenage boy walking from a nearby store through this same neighborhood toward the townhome where he was temporarily staying while visiting his father. In the background, a galvanizing law seven years looming, burrowing into societal norms, making it okay to shoot first and ask questions later.” Florida’s Stand Your Ground statutory scheme has dominated the media since the calamitous encounter between George Zimmerman and Trayvon Martin. This Article follows up on this Author’s 2010 article, Deadly Combinations: How Self-Defense Laws Pairing Immunity with a Presumption of Fear Allow Criminals to “Get Away with Murder, 34 Am. J. Trial Advoc. 105 (2010). In 2010, this Author predicted the law would promote a rise in vigilante justice in that it “creates a mindset to ‘shoot first, ask later.’” This Article takes that prediction a step further and boldly states that the legislature has fundamentally changed the nature of self-defense. Rather than recognizing an affirmative defense to arguably justifiable uses of force, it has legalized many forms of homicide. Additionally, this Article analyzes the law through a lens of embodied rationality to identify the culture-law-culture cycle and the competing narratives that (1) gave rise to the law, (2) impacted the actions of both Zimmerman and Martin, and (3) affected prosecution, defense, and judicial legal strategies and choices related to the shooting and resultant trial. This article concludes by asserting Florida’s Stand Your Ground law does not reflect collectively-held norms and values as evidenced by the media narratives surrounding Martin’s death. As such, this Article calls for legislative change to retreat from legalized homicide returning to the maxim of self-defense as an affirmative defense.
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Elizabeth Berenguer, In Defense of Scholarship, 27 Second Draft 4 (2013)Clicking on the button will copy the full recommended citation.