COVID-19 and American Ageism

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yellow t-shirt with a design that includes the covid molecule and the words "boomer remover"
A “Boomer Remover” t-shirt for sale on a website.

This post was written by Dr. David Papke and Dr. Elise Papke.

In periods of social strain, assorted societal biases are more likely to come in play. That seems to be the case with American ageism, and as a result it has become even harder than before to be an older American.

Ageism is a multifaceted phenomenon that includes micro-aggression, inattentiveness, harmful stereotypes, and, of course, bias and discrimination. Ageist people often claim that they are trying to help seniors or that they are only joking. Seniors usually see through this, but ageism nevertheless leaves many feeling inferior or even worthless.

One example of ageist rhetoric that has surfaced in the midst of the pandemic is “Boomer Remover.” Offensive and even a bit frightening, this meme or catchphrase refers to and implicitly endorses the notion that the virus will reduce the number of annoying Baby Boomers.

For some time now, Baby Boomers have been thought to be a drain on society’s resources, especially because of their uninsured medical expenses and need for financial support. Continue reading “COVID-19 and American Ageism”

Story-telling and the Law

Posted on Categories Legal WritingLeave a comment» on Story-telling and the Law

Tens-of-thousands of years ago human beings would gather near fires to keep the nightly darkness and danger at bay. Under the faint light of long-gone constellations, they would share stories. Stories of long-ago hunts and happenings that could no longer be remembered by any living soul. Dramatic stories of the beginning of the world, of gods big and small and the conflict between them all. Some of these stories were told with cave paintings, a smear of ash and suddenly a herd of elk would materialize on a cave wall.

Story-telling is fundamental to being human. As a collective species we surround ourselves in them and use them to relate to one another. The stories we tell can be light-hearted and full of levity. They might be tragic and heart wrenching. Usually, they are some sort of combination. Whether we realize or not we tell and retell stories every day. We relate the stories of our day to our significant others and friends after a day of work. We bond with our friends over stories of past exploits. Spend ten minutes with any child and you will be inundated with stories.

We use stories to make the complex simple and to craft narratives and mythos of the everyday. We judge the entertainment we consume based on how the stories contained within make us feel and award little golden statutes to those stories we deem best. The overwhelming majority of us will never receive a statute for the story of our own lives, but that doesn’t make them any less important.

From the criminal defendant to the corporation, there is always a story to tell. Which makes the legal profession’s aversion to stories and story telling all the more puzzling. The legal profession prides itself on brevity and regrettably this can sometimes lead to squeezing the humanity out of their story. A human being reduced to a mere two-dimensional caricature is a disservice to everyone. It reduces the humanity of the client and it embitters the attorney to see every client as a transaction, rather than someone who needs help with the complicated legal system. Much like an off-brand powdered juice mix the de-humanized, non-story recitation of a client’s issue can leave one wanting something more substantial.

It is easy to see why this happens. Attorneys at some firms live their lives 15 minutes at a time, constantly aware of the amount of time they spend on a given task. With limited space in written briefs and limited time in front of a judge to make their arguments it is tempting to jettison the human story that brought the suit in the first place. The U.S. Supreme Court for instance imposes a word limit of 9,000 words for Petitions for Writs of Certiorari and generally limits oral argument to an hour total on issues that affect the entire nation.

But despite the limitations placed on how an attorney has to advocate, we shouldn’t forget to tap into the human instinct. I didn’t realize the power inherent in stories until the spring semester of my second year of law school. Up to that point I had dogmatically followed the CREAC, (conclusion, rule, explanation, application, and conclusion) format and could never figure out why my legal writing was never as compelling as my peers. The answer was quite simple. I wasn’t writing a story for the fictional client, I was writing an instruction manual. There was no passion, no emotion, and as a result my writing suffered. I am glad to have learned that lesson. I had forgotten that everyone looks to the faint glow of constellations at night; that we seek out stories to help us understand the world.

Palsgraf and Humanity in the Age of Covid

Posted on Categories Legal Practice, Public, Student Contributor, Tort Law1 Comment on Palsgraf and Humanity in the Age of Covid

If Covid were the subject of a suit, how would the decision describe my grandfather?

My grandfather recently passed away. It wasn’t Covid; not directly at least. A lifetime of kidney problems and other assorted ailments weren’t helped by the pandemic-induced lock-down. Rather than go out to eat or graze at the local grocery store buffet, as he normally would, he dined on pre-cooked meals and unsurprisingly his health suffered for it. So no, Covid didn’t kill him, but it certainly helped. In legal-speak it was more of a proximate cause.

In any law school tort class, students learn about proximate cause as it relates to negligence. One case, which is widely cited, is Palsgraf v. Long Island Railroad. In this slice of history, a remarkable and tragic chain of events took place. The plaintiff, Mrs. Palsgraf, waited for her train, at the railroad’s train station. As she waited, an employee of the train company unknowingly helped two men load explosives onto a different train. The explosives detonated, and had one of the two men been injured by that explosion this case would almost assuredly be lost to the sands of time, a simple case of negligence with a simple resolution. Instead, in the hubbub that ensued, a large scale Mrs. Palsgraf was standing near struck and injured her. The exact manner in which the scale injured her isn’t mentioned in the opinion itself.

Every law student learns about this case and its meaning. The legal rules and principles of law that the majority and dissenting opinions announced are followed to this day. But the decision doesn’t spill any ink about Mrs. Palsgraf. A terse statement of facts accompanies the majority opinion, in which Mrs. Palsgraf isn’t even mentioned by name. She is simply “Plaintiff.” Thus, she is reduced to something less than human. I thought of this case as my grandfather lay in hospice, near the end of his life. Continue readingPalsgraf and Humanity in the Age of Covid”

Welcome to Our August Guest Blogger

Posted on Categories Public, Student ContributorLeave a comment» on Welcome to Our August Guest Blogger

Our student guest blogger for August is 3L Robert Maniak. Robert was born and raised in Saint Paul, Minnesota, and after high school enlisted in the Marine Corps. He and his wife Gina were recently married in June, with relatives “Zoom-ing” into the ceremony. After graduation, he is interested in pursuing a career in civil litigation in Wisconsin. Welcome Robert!

Patrick Sharkey: Keep the Police, but Add a Corps of Problem Solvers

Posted on Categories Public, Race & Law, Speakers at Marquette1 Comment on Patrick Sharkey: Keep the Police, but Add a Corps of Problem Solvers

Police are effective in reducing violence, according to Patrick Sharkey. “When there are more police on the street, there’s less violence, and we have very good evidence on that,” Sharkey said during a virtual “On the Issues with Mike Gousha” program on July 22.

But that is only part of what is needed to make communities safe, Sharkey said. The reliance on police to deal with safety in urban areas has left big inequalities and needs unaddressed. That’s one of the key factors behind the enormous wave of protests since the death of George Floyd at the hands of police in Minneapolis in May.

So Sharkey, a professor of sociology and urban affairs at Princeton University and an expert on the value of community efforts in increasing safety, has been calling in places such as the Washington Post and New York Times, for bold experiments in new ways to help neighborhoods.

That led to Sharkey’s online conversation with Gousha, Marquette Law School’s distinguished fellow in law and public policy. Sharkey has done consulting in Milwaukee in recent years and has visited Marquette Law School twice previously. Continue reading “Patrick Sharkey: Keep the Police, but Add a Corps of Problem Solvers”

Bostock v. Clayton County: An Unexpected Victory

Posted on Categories Alumni Contributor, Circuit Splits, Civil Rights, Human Rights, Labor & Employment Law, Public, U.S. Supreme Court2 Comments on Bostock v. Clayton County: An Unexpected Victory

A photo of the White House with rainbow lights shown on it[The following is a guest post from Alexa Bradley (L’18).]

The days in which same-sex couples could marry on Sunday and be fired on Monday are no longer.

Gone, too, are the days in which a transgender employee could be fired for giving themselves the gift of living their life as the person they were always meant to be. On June 15, 2020, in Bostock v. Clayton County Board of Commissioners, the United States Supreme Court ruled in a 6-3 decision that Title VII’s prohibition of workplace “sex” discrimination clearly encompasses discrimination based on one’s sexual orientation or transgender status because “homosexuality and transgender status are inextricably bound up with sex.” This long-awaited decision was an unexpected victory for the LGBTQi community, of course, but also for the sanctity of Title VII.

Before I get into the weeds of the Bostock opinion, a little background may be helpful. I’ll first explain Title VII and some of the early Supreme Court case law interpreting “sex.” Then, before I explain the opinion itself, I’ll explain how the circuit courts had interpreted “sex” when it came to claims involving sexual orientation and transgender status. Finally, after explaining the majority opinion, I’ll unravel the dissenting arguments.

 Title VII Background
Title VII was enacted by Congress in 1964 to address the pervasive problems of employment discrimination and to ensure that, among the other enumerated characteristics, an employee’s “sex” was not relevant to their selection, evaluation, or compensation. According to Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986), Congress drafted Title VII in broad terms to “strike at the entire spectrum of disparate treatment between men and women.” Since Title VII’s passage, the Court has been tasked on a number of occasions with clarifying the scope of protection provided by Title VII’s ban on “sex” discrimination.

For example, in 1971, the Court held in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per curiam), that an employer who hired men with school-aged children but would not hire women with school-aged children had engaged in sex discrimination in violation of Title VII. The Court’s decision in Phillips created the “sex-plus” theory of discrimination. Sex-plus discrimination is found when an employer, explicitly or in effect, classifies an employee on the basis of sex plus another characteristic, such as “women who have children.” So, in Ms. Phillips’s case, her employer discriminated against her because she was (A) a woman, who had (B) school aged children. Thus, her employer’s decision was motivated, in part, by Ms. Phillips’s sex, which violates Title VII.

In 1978, the Court considered in Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702 (1978), whether Title VII permitted an employer to require women to make larger contributions to the pension fund than men. The employer argued that the policy was justified because women are likely to live longer than men, so women would receive more over time from the pension fund. However, recognizing Title VII’s clear focus on the individual rather that a group, the Court rejected the employer’s justification. The Court reasoned that it may be true that women, as a whole, live longer than men, but an individual woman may die as early as a man, and that the individual, therefore, is the proper focus for Title VII. Thus, the Court held that an employer engages in sex discrimination in violation of Title VII when the employer uses generalizations or assumptions about an entire class of employees that results in individual disparate treatment.

In 1986, the Court held in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), that claims of workplace sexual harassment fall under the umbrella of “sex discrimination” claims contemplated by Title VII, and in 1989, the Court held in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), that discrimination on the basis of an employee’s failure to conform to expectations of gender norms – or sex-stereotyping – constitutes “sex” discrimination in violation of Title VII.

Finally, in 1998, in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), an opinion written by the late Justice Antonin Scalia, the Court found that Title VII’s prohibition on “sex” discrimination applies to cases of workplace harassment between members of the same sex. In so holding, Justice Scalia explained “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Id. at 79.

In considering the above-cited opinions, one central theme seems to ring through: “sex” must be interpreted broadly.

This theme becomes unavoidably clear when considered with Congress’ abrupt response to the Court’s holding in General Electric Co. v. Gilbert. 429 U.S. 125 (1976).  In Gilbert, the Court found that a company plan that provided nonoccupational sickness and accident benefits to all employees but did not provide such benefits for any absence due to pregnancy did not constitute sex discrimination. In response, Congress passed the Pregnancy Discrimination Act of 1978, which explicitly overturned Gilbert and expanded Title VII’s definition of “sex” to cover “pregnancy, childbirth, and related medical conditions.” 42 U.S.C. § 2000e(k). Congress’ swift action to overturn Gilbert sent a clear message to the Court – the protected characteristics enumerated in Title VII are to be afforded broad interpretations.

How We Got Here
This is the landscape of Supreme Court decisions against which Bostock must be understood. Continue reading “Bostock v. Clayton County: An Unexpected Victory”

Violent Crime & Recidivism: Symposium Issue Now Available

Posted on Categories Criminal Law & Process, Marquette Law School, PublicLeave a comment» on Violent Crime & Recidivism: Symposium Issue Now Available

The threat of violent recidivism looms large in policy debates about sentencing and corrections. Prison populations in Wisconsin and across the United States remain near historic highs. Yet, efforts to bring down those populations often run into the objection that most of the individuals in prison have been convicted of violent crimes. What if these individuals reoffend after release? The stakes seem frighteningly high when we contemplate the possibility of shorter sentences for individuals who have physically harmed others in the most damaging and disturbing ways–shootings, stabbings, sexual assaults, and so forth.

Last summer, Marquette Law School hosted a conference that brought together leading researchers to address the question of whether there might be better alternatives than long-term incapacitation  for responding to the threat of violent recidivism. Those of us in attendance enjoyed a thought-provoking series of presentations and some lively Q&A with audience members. Now, the papers from the conference have been published in a symposium issue of the Marquette Law Review.

Here are the contents:

Continue reading “Violent Crime & Recidivism: Symposium Issue Now Available”

How are Wisconsin voters experiencing the pandemic economy?

Posted on Categories Lubar Center, Marquette Law School PollLeave a comment» on How are Wisconsin voters experiencing the pandemic economy?

Wisconsin’s unemployment rate hit 14 percent in April and remained at 12 percent in May. Combining surveys from late March, early May, and mid June, the Marquette Law Poll found that 13 percent of Wisconsin registered voters had lost a job or been laid-off due to the coronavirus outbreak. A further 23 percent said this had happened to a family member. Likewise, 23 percent reported working fewer hours due to the coronavirus outbreak, and another 29 percent said this had happened to a family member. Altogether, 27 percent of those interviewed had either lost a job, lost hours, or both at some point during the economic shutdown.

Taken by themselves, these numbers suggest an economic catastrophe on par with the Great Depression, but that has not happened–at least not yet–in the experiences of most Wisconsinites. In nearly every poll, we ask respondents to evaluate their family’s financial situation–are they “living comfortably, just getting by, or struggling to make ends meet?” The trend is remarkably flat. In January 2020 63 percent said they were living comfortably–statistically indistinguishable from the 61 percent saying the same thing in June. So what gives?

Graph of self-reported subjective economic status, January - June 2020

Our poll alone cannot answer this question definitely, but it can offer some clues. Just as COVID-19 has hurt some communities in Wisconsin more than others, so too has the accompanying economic crisis. Along with disproportionate cases and deaths, Black and Latinx Wisconsin residents faced a stark economic toll. The number of Black respondents “struggling to make ends meet” increased from 10 percent in January/February to 22 percent during the pandemic. The proportion of Latinx respondents “living comfortably” declined from 66 percent to 47 percent over the same period.

In early 2020, prior to the economic shutdown, 63 percent of respondents described their family as “living comfortably.” People who lost their job during the pandemic did indeed report declining financial comfort. Just 37 percent of those who lost a job were “living comfortably.” Even worse off were those whose families lost multiple jobs. Only one in three people in this position were “living comfortably;” 57 percent were “just getting by,” and 11 percent were “struggling to make ends meet.” But people who suffered no financial ill effects actually improved their self-assessed financial well-being during the pandemic. Among people whose families lost no jobs or hours, 70 percent were “living comfortably,” 25 percent “just getting by,” and only 4 percent struggling to make ends meet.

The table below compares experiences by income level in 2019. To maximize cases, I pooled together all respondents who reported a job loss among any member of their family.

Before the pandemic, 37 percent of people with household incomes below $40,000 said they were living comfortably. People in this income bracket whose family lost at least one job during the shutdown now report a 24 percent rate of “living comfortably”–a 13 percent decline. Forty-seven percent of people from families who avoided income losses now say they are “living comfortably”–a 10 percent increase. The same pattern repeats itself in each other income tier.

percent of respondents living comfortably by job loss

What accounts for the increase in “living comfortably” among those who’ve kept their jobs? I see three possible explanations, all of which probably contribute in some way.

First, job losses in the pandemic have been concentrated among lower-wage workers. It could be that those who lost their jobs were already more likely to be financially struggling. Second, people whose families have kept their jobs may feel themselves lucky and are thus more likely to positively evaluate their subjective financial well-being. Third, people who have maintained an uninterrupted income stream may actually be making and/or saving more money than before. Whatever the cause, the pandemic appears to be sharpening the division between haves and have-nots in Wisconsin’s economy.

SBA Statement in Support of BLM and Against Racial Injustice

Posted on Categories Civil Rights, Criminal Law & Process, First Amendment, Human Rights, Legal Profession, Marquette Law School, Milwaukee, Public, Race & Law, Student ContributorLeave a comment» on SBA Statement in Support of BLM and Against Racial Injustice

Logo of Student Bar AssociationTo Our Peers, Professors, And Administrators:

Marquette University Law School Student Bar Association writes to you today to address the tragedy that we as a community and a country have faced in the last three weeks. Not one of a pandemic, but rather the state-sanctioned murders of Black Americans. Namely, Ahmaud Arbery, Nina Pop, Breonna Taylor, George Floyd, and countless others. Their deaths are not novel, and we would be remiss to categorize them as such. Their deaths are the tragic manifestation of a long-standing system of racial oppression that continues to unjustly claim the lives of Black Americans.

We want to be loud and exceptionally clear: SBA believes Black Lives Matter. We are an anti-racist organization, and we condemn every form of racism. We stand in solidarity with the members of the Black Law Student Association, the Black community of Marquette University, and the Black community around the world.  Continue reading “SBA Statement in Support of BLM and Against Racial Injustice”

What Does Addiction Look Like?

Posted on Categories Family Law, Health Care, Legal Practice, PublicLeave a comment» on What Does Addiction Look Like?

Picture of PillsWhen lawyers think about working with clients who have addictions, we often imagine clients who are young or middle-aged and facing legal consequences such as criminal charges for drug possession or for driving under the influence of alcohol or another drug. But not every person struggling with addictions is young, in trouble with law enforcement, or even using substances in a visible way that signals addiction to family members or professionals.

More than 2.5 million adults over age 55 struggle with addictions every year in the United States. Continue reading “What Does Addiction Look Like?”

As We Approach our Autonomous Future, Will Products Liability Law Hold Us Back or Shove Us Forward?

Posted on Categories Public, Tort LawLeave a comment» on As We Approach our Autonomous Future, Will Products Liability Law Hold Us Back or Shove Us Forward?

Arizona Appellate Court Revives Plaintiff’s Claim that Vehicle that Struck Her was Defective By Virtue of Not Including Autonomous Safety Feature

In recent years, highly autonomous vehicles have acquired a reputation as a technology that is perpetually just a few years away.  Meanwhile, their Car Wreckenormous promise continues to tantalize.  AVs have the potential to transform American life in a variety of ways, reducing costs both large and small.  From virtually eliminating the roughly 40,000 deaths and hundreds of thousands of injuries we suffer in car accidents every year to making it possible to commute to work while sleeping, AVs are seen as enormously promising.

Against this backdrop, many torts scholars have expressed concern that imposing liability on AV manufacturers threatens to slow or even deter AV development.  When AVs take the wheel, will the companies that make them also take on liability for whatever crashes they can’t avoid?  AV development also raises the possibility—much less commonly noticed—of new liability for manufacturers of conventional vehicles.  If AVs are significantly safer, will courts and juries come to see conventional vehicles as defective?  According to a recent Arizona appellate court opinion, the answer is… maybe so.

Continue reading “As We Approach our Autonomous Future, Will Products Liability Law Hold Us Back or Shove Us Forward?”

New County Executive Remains Confident in Good Days Ahead for Milwaukee

Posted on Categories Milwaukee, Public, Speakers at MarquetteLeave a comment» on New County Executive Remains Confident in Good Days Ahead for Milwaukee

As new Milwaukee County Executive David Crowley was being interviewed for an online “On the Issues with Mike Gousha” program this week, viewers could see a message board behind Crowley with the phrase, “It’s a good day to have a good day.”

When Gousha, Marquette Law School’s distinguished fellow in law and public policy, asked Crowley about it, Crowley said it was a motto in his family and he described himself as an optimist – in fact, he said, some say he is “recklessly optimistic.”

He maintained that tone, even as he discussed the enormous problems he faces in the job he won in the April 7 election. Milwaukee County government continues to struggle with large financial stresses and increasing demands for services. Add on the crises that Crowley faced the day he took office – responding to the COVID-19 pandemic and the sharp economic slump that resulted – and the urgent issues that arouse in late May in the aftermath of the death of George Floyd at the hands of police in Minneapolis, and it would be easy to guess Crowley’s optimism had declined.

Crowley told Gousha that the crises have “exacerbated what we knew we needed in Milwaukee” and have made progress more difficult. “But we’ll be able to move this community even further” as the issues are addressed, he said. Continue reading “New County Executive Remains Confident in Good Days Ahead for Milwaukee”