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.

Professor Alex LemannMy 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.

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Prof. Merrill’s Hallows Lecture on How Implicit Legal Ideas Have Deformed the Constitution

Thomas W. Merrill amd Joe Kearney at a podium.
Dean Kearney (left) welcomes a question for Prof. Merrill after the Hallows Lecture.

The Law School had the privilege earlier this week to present our annual Hallows Lecture. The occasion remembers E. Harold Hallows, a Milwaukee lawyer who taught part-time at Marquette Law School during 1930–1958 and then served on the Wisconsin Supreme Court from 1958 until his death in 1974, the last six years as chief justice. For the lecture, we welcomed Thomas W. Merrill, the Charles Evans Hughes Professor of Law at Columbia University, one of the nation’s most widely respected legal scholars.

Prof. Merrill’s Hallows Lecture, delivered on March 2 in the Lubar Center before 200 people (we counted), was rather a tour de force. Here were the title and advance description:

“Unstated”: How Three Implicit Legal Ideas Have Sidelined Congress and Empowered the President and the Courts

Why has Congress, the constitutional keystone of the federal government, become so ineffective, relative to the president and the federal judiciary? While many explanations have been offered, one important but unappreciated reason is legal ideas—not just widely discussed concepts such as the unitary executive and originalist interpretation of the Constitution but also, and perhaps even more importantly, unstated ideas that have taken hold without much explicit discussion or acknowledgment. This lecture will identify and discuss three largely unquestioned ideas that have combined to deform our constitutional regime. Their result has been that the president wields immense power in the guise of issuing orders and binding regulations and the courts exercise great power in the guise of interpreting the Constitution and laws, while Congress stands largely out of the picture. While there is no magic incantation for restoring a proper constitutional balance, an important first step is to recognize the role that unstated ideas have played in the transformation, so that they can be unmasked and debated in the open.

Even in advance of its publication this coming fall in the Marquette Law Review and Marquette Lawyer, Professor Merrill serialized the lecture this week for a national audience on the Volokh Conspiracy blog. Following an introductory post by Professor Eugene Volokh, the blog featured the following posts the past four days, March 2–5:

  1. How Unstated Legal Ideas Have Deformed the Constitution
  2. The “Unitary Executive” Theory’s Contribution to the Deformation of the Constitution
  3. The Role of Delegation Theories in Deforming the Constitution
  4. How the Supreme Court’s Conception of Its Role Contributes to the Deformation of the Constitution

The text of the entire lecture as prepared for presentation can be read here, and a video of the lecture is available to view here.

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Running Away from History in Trump v. Slaughter

[This piece is cross-posted and was originally published in the Yale J. on Reg.: Notice & Comment blog.] On December 8, 2026, the Supreme Court will hear oral argument in the landmark case of Trump v. Slaughter. A fundamental issue in the case is whether the statutorily created office of Commissioner for the FTC can include partial restrictions on the President’s ability to remove a Commissioner. The government contends that the statutory removal restrictions impinge on an indefeasible Presidential removal power under Article II.  

While the Supreme Court’s recent decisions in Seila Law and Collins have recognized an indefeasible Presidential removal power for some officers, a flood of recent research has undermined historical arguments for a categorical rule that would extend removal at pleasure to all officers or all principal officers. For summaries of this historical literature see Chabot, Katz, Rosenblum & Manners, Nelson, Katz & Gienapp. (My latest paper, The Interstitial Executive: A View from the Founding, adds more fuel to the fire: it introduces a critical body of previously overlooked archival evidence to show that the Washington, Adams, and Jefferson administrations routinely complied with statutory removal restrictions in their officer commissions.)

The government’s reply brief banked on recent precedent from the Roberts Court. It leaned into Seila Law and the unitary understanding of the Decision of 1789 that the Court adopted in that case.  At the same time, the government offered an extension of Seila Law that would create further conflicts with the historical record.

Both Seila Law and the officers created pursuant to the Decision of 1789 involved departments led by single officers. Neither Seila Law nor the Decision of 1789 involved statutory tenure protections for officers serving on multimember commissions such as the Federal Reserve or the FTC. As a result, Seila Law is not necessarily at odds with historical evidence supporting these independent multimember commissions.  Some of the strongest Founding era examples of tenure-protected officers were those serving on multimember commissions such as the Sinking Fund Commission (described in my work here and here) and the Revolutionary War Debt Commission (described in recent work by Victoria Nourse as well as my new paper).  

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