The summer 2026 issue of the Marquette Lawyer magazine has a number of entries concerning the Hon. Diane S. Sykes, L’84, including a set of one-page essays by seven different faculty on how their Marquette Law School courses draw on her writings as a judge of the U.S. Court of Appeals for the Seventh Circuit since 2004 or as a justice of the Wisconsin Supreme Court between 1999 and 2004. This is the sixth of the seven essays. The illustration of the faculty member, taken from the magazine and appearing here with the blog post, is by John Jay Cabuay.

We have used opinions by Judge Diane Sykes in two of my classes. In both instances, I looked for an opinion that presented a complicated doctrinal issue in clear terms that students could understand and debate.

In Copyrights, for many years, I supplemented the casebook with Kelley v. Chicago Park District, a Seventh Circuit decision from 2011. Kelley deals with a basic yet challenging question: what, exactly, is a copyrightable work? Protected works must meet at least two requirements: they have to be authored, and they have to be written or recorded somehow—in the words of the statute, “fixed in a tangible medium of expression.”

Not many cases deal with either issue, and what cases there are tend to arise in the context of new technologies, such as computers or remote-controlled cameras. Students struggle, for example, to determine if a temporary copy made in a computer’s volatile memory counts as “fixed.”

Kelley involves a flower garden. In 1984, Chapman Kelley created a “living art” installation of flowers and native plants in Grant Park, called “Wildflower Works.” Later, when Chicago constructed Millennium Park, Wildflower Works was mostly destroyed. Kelley sued under the Visual Artists Rights Act (VARA), a federal statute, which provides protection against destruction for certain pieces of art, including sculptures.

The Chicago Park District failed to challenge the conclusion that Wildflower Works was a “sculpture” under VARA, an action (or inaction) that Judge Sykes called “astonishing.” (A useful teaching moment for students: don’t overlook the statutory text!) This left the court with a conundrum: Is a wildflower garden “fixed” within the meaning of the copyright statute? And if so, by whom?

Judge Sykes concluded that Wildflower Works failed in both respects. A garden is “naturally in a state of perpetual change.” And the nature of that change also undermined the human authorship requirement for copyright. “[G]ardens are planted and cultivated, not authored,” Judge Sykes wrote. “Most of what we see and experience in a garden . . . originates in nature, not in the mind of the gardener.” Kelley has been an important precedent as courts grapple with the copyrightability of AI generations, which are similarly determined largely by nonhuman forces.

In Civil Procedure, I supplement the casebook with McCauley v. City of Chicago (2011). McCauley deals with another vague doctrine: what constitutes a “plausible” claim that will survive a motion to dismiss? The U.S. Supreme Court announced the plausibility requirement in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009), but neither of those involved a typical claim, and in both cases the plaintiff lost. This leaves students wondering: what makes a claim “plausible”? The Supreme Court’s unhelpful answer is that it depends on “judicial experience and common sense.”

By the time Judge Sykes wrote the majority opinion in McCauley, the Seventh Circuit had already decided two prior plausibility appeals, Swanson v. Citibank, N.A. (2010) and Brooks v. Ross (2009). The district court’s dismissal in Swanson was reversed, but not in Brooks. Judge Sykes used these two prior data points to map out a spectrum of fact patterns, from less complex to more complicated. Where a case falls on that spectrum determines how hard a plaintiff has to work to plead their claim.

Judge Sykes then explained how Gloria Swanson, who alleged that her house was given a low-ball appraisal by Citibank due to her race, had a straightforward claim, whereas that of Victor Brooks, who alleged a wide-ranging conspiracy among unrelated parties to retaliate against him for a parole board vote, was “complex.” The civil rights complaint in McCauley, which alleged that various city and state officials intentionally underenforced domestic violence orders on the basis of sex, was also “complex.”

“What does Judge Sykes mean by ‘complex’?” I ask students. After all, Swanson’s claim involved math, anathema to many lawyers, whereas Brooks’s claim did not. In our discussion, using the spectrum mapped out by Judge Sykes, the students come to see that a “complex,” plausibility-challenged claim is one that has a lot of improbable leaps, as in Brooks’s complaint. On the other hand, Swanson’s racial discrimination claim, sadly, is the sort of thing that happens every day. An opinion such as Judge Sykes’s in McCauley, particularizing “judicial experience and common sense,” helps students understand when a motion to dismiss may succeed.