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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.
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Elizabeth Berenguer, Gideon’s Legacy: Taking Pedagogical Inspiration from the Briefs that Made History, 18 Barry L. Rev. 227 (2013)Clicking on the button will copy the full recommended citation.
In honor of the fiftieth anniversary of the Gideon decision, this article guides the rhetorical study of the party briefs as a strategy for cultivating individual voice in legal writing. It is a rhetorical study of the party briefs filed in Gideon v. Wainwright, a 1963 U.S. Supreme Court decision establishing the constitutional right to counsel in state criminal proceedings and provides specific lessons to be used in the classroom setting to enhance students’ understanding of advanced persuasive techniques such as logos, ethos, pathos, and storytelling. Each lesson has been created through the lens of cognitive theory, in particular the concept of categories as organizers of perception. This article proposes that categories can either be reinforced or redefined to accomplish rhetorical purposes, and having a meta-cognitive understanding of that power is essential effective advocacy.
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Elizabeth Berenguer, The Invisible Man: How the Sex Offender Registry Results in Social Death, 2 Journal of Law and Social Deviance 92 (2011)Clicking on the button will copy the full recommended citation.
This Article establishes that over-criminalization serves to marginalize unwanted groups of society, and particularly regarding the sex offender registry, it results in social death. The author relies upon the notion of crime as a social construct to establish that the concept of “sex offense” changes over time as society and culture evolve. From there, the author incorporates the work of Michele Foucault involving the relationship of power, knowledge, and sexuality to show how the trend toward more repressive social controls over sex-related activity is related to a shift in this relationship. The Author identifies three characteristics and the associated traits which arise when over-criminalization exists, and further shows how these characteristics and traits are present with respect to the sex offender registry. This Article offers critical insight into the relationship between over-criminalization and repressive control systems and concludes that over-criminalization exists when repressive governmental controls seize power and render non-existent informal social controls. It follows that the sex offender registry is a repressive governmental control that has concentrated power in the government and criminal laws while shifting power away from informal social controls to result in the social death of those unwanted, those labeled sex offender.
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Elizabeth Berenguer, From Innocent Boys to Dirty Old Men: Why the Sex Offender Registry Fails, 47 Criminal Law Bulletin 1067 (2011)Clicking on the button will copy the full recommended citation.
This article surveys the requirement of registration as a sex offender and ultimately concludes that the registry fails to protect children and society from individuals who commit sex-related crimes; furthermore, it concludes that the registry fails to prevent sex crimes from occurring. The author studies the legislative history of various Acts related to sex crimes as well as statistics on sex crimes to surmise that Congress in large part relied on myths about sex offenders in enacting legislation like the Adam Walsh Act. As a result, the registry is incapable of preventing the commission of sex offenses. The author further resolves that the registry endorses and perpetuates hatred toward sex offenders by creating a stigma whereby sex offenders are unable to reintegrate into society and lead productive lives. The article concludes by proposing that the registry is counterproductive as it causes great harm to individuals without offering a greater positive benefit to society as a whole.
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Elizabeth Berenguer, 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)Clicking on the button will copy the full recommended citation.
This Article identifies as problematic the intersection of Florida’s Immunity Statute and its current Castle Doctrine, which presumes reasonable fear where one acts in self-defense in the “castle.” The coupling together of immunity and the presumption of reasonable fear creates a bar to prosecution in Castle self-defense cases. The Article addresses problems associated with the lack of guidelines to ensure the equal application of the law to self-defense cases, and the lack of procedural tools available for the assertion of immunity arising from a self-defense act.