Judge Sykes in the Curriculum—Torts
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 first 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.
My first-year torts class reaches something of a climax when we read Palsgraf v. Long Island Railroad Co., the landmark 1928 New York Court of Appeals decision. Palsgraf is one of those old chestnuts that are simply irresistible to law professors. It combines engrossing facts, beautiful writing, and philosophical richness. I would probably assign it even if it didn’t have canonical status and thus represent part of the esoteric lingua franca by which first-year law students are inducted into the cult of lawyers.
But Palsgraf can feel, after almost a century of life, somewhat remote. For students in Wisconsin in 2026, who often find the case to be the single most confusing thing they read all semester, a reasonable objection might be “what’s the point?”
The good news for me as a teacher of tort law is that Wisconsin has its own Palsgraf, a 2003 state Supreme Court opinion called Alvarado v. Sersch, which I assign every year immediately after the perhaps somewhat hoary original. Like Palsgraf, Alvarado deals with the question of how far negligence liability ought to extend in situations where the connection between breach and injury feels attenuated.
In Alvarado, the plaintiff was cleaning a student apartment in Madison, at the end of an 11-hour shift during the hectic mid-August turnover period, when she found what she thought was a candle that had been overlooked by the property manager during his inspection of the apartment. The candle turned out to be a firework, and when Alvarado lit the fuse to preserve the pilot light of a stove she intended to clean, it exploded, blowing off most of her right hand.
Both the majority opinion, by Justice Ann Walsh Bradley, and Justice Diane Sykes’s dissent in Alvarado engage with Palsgraf and the role it ought to play in 21st-century Wisconsin tort law. Part of the benefit of assigning the case is simply to show students that Wisconsin—most unusually—follows Judge William Andrews’s dissent in Palsgraf, meaning that limitations on negligence liability in Wisconsin are based on an assessment of public policy rather than subtle philosophical elucidations of the concepts of duty and breach, as Judge Benjamin Cardozo set forth for the Palsgraf majority.
But another benefit of Alvarado as pedagogy is having students closely examine the point of departure between majority and dissent and push themselves to be precise in understanding the arguments that might have proved decisive. From this perspective, Justice Sykes’s opinion is a gem, all that a dissent should be: it is shorter than the majority, it eschews scoring easy rhetorical points for the sake of rhetoric alone, and it raises valid concerns about the real-world impact of the majority’s position. I feel confident that, like Palsgraf, Wisconsin law students will still be reading Justice Sykes’s Alvarado dissent a century after it was written.
