Rules of Engagement

Posted on Categories Civil Rights, Human Rights, International Law & Diplomacy, Public, Student Contributor1 Comment on Rules of Engagement

Afghanistan was hot. An almost indescribable amount of heat meant that you were constantly sweating as everything you wore became soaked, so that you were never truly dry. I was there in 2014 as part of, what we thought at the time, was the U.S.’s withdrawal from the country. The unit I was a part of had the impossible task of maintaining the operation of Camp Bastion’s flight line, providing all the logistics that kept the aircraft and crews happy, while also keeping them safe.

Contrary to public assumption, and most recruiting commercials, the U.S. Marine Corps isn’t made of just infantry and aircraft units. There is a whole ecosystem of support jobs which keep everything moving along. My job was one of the less glamorous, less flashy, less likely to be publicized ones. I maintained air conditioners and refrigerators. And the unit I was assigned to wasn’t all that exciting either. We were a support squadron of the aircraft squadrons. We did not have any aircraft to maintain. Rather, we were supplied all the less glamourous logistics for the units that did fly.

Part of that logistic support was security. After the disastrous 2012 attack which killed two Marines and destroyed millions of dollars of aircraft, the airfield, which was nested inside the larger base, was subject to increased security protocols, limiting access to only those who had business there. This meant that in addition to doing our daily jobs, like vehicle and heavy equipment maintenance, we would also be tasked to stand post at the entry points for the flight line or be on stand-by as a quick reaction force in the event that someone breached the base fence and made the one-kilometer trek to the flight line. Continue reading “Rules of Engagement”

Mental Health and Law School

Posted on Categories Marquette Law School, Public, Student Contributor1 Comment on Mental Health and Law School

I have never been particularly excited to begin a new year of school. My mom, to my chagrin, keeps a photo of one of my first days of school on the family fridge. Clad in a breathtakingly dated wind-breaker, with a full sized Marquette University Law Schoolbackpack dwarfing my elementary school frame I lean against a tree at the bus stop. Flanked by my too-young for school sister who smiles from ear to ear my mom snapped the photo. I think that photo was both for me and my mom. I got a visual reminder that my family was always going to be there for me; my mom got a picture she could use to embarrass me with, and a memento of her favorite and only son.

I was reminded of this photo as email after email bombarded my inbox explaining the new COVID procedures for the in-class semester. Any excitement for my final year in school was dampened considerably. The Law School’s Instagram post which showed what the law school looks like now, a labyrinth of blue painter’s tape and signage, showed just how much the precautionary measures had sapped the building of its warmth. The Law School is, to be frank, depressing in its current arrangement. Continue reading “Mental Health and Law School”

Farewell to Professor Julian Kossow

Posted on Categories Marquette Law School, Public2 Comments on Farewell to Professor Julian Kossow

Many of us on the Marquette Law School faculty were saddened to learn of the death earlier this month of Professor Julian Kossow. Julian had a long and varied career, primarily in academia and real estate. As he recounted in this blog post, Julian went to law school because of his frustration as a developer in dealing with lawyers. Once in law school, though, he found that he was fascinated by the law as a field of study. Legal academia was so much to his liking, in fact, that he returned to it as a professor after graduation and a clerkship on the D.C. Circuit, joining the Georgetown faculty in 1970. Later, he practiced as a real-estate lawyer and then resumed his career as a developer.

Julian could not resist the call of law-teaching indefinitely, though. In the 1990’s, he began a second career as a law professor, teaching at St. Thomas and Stetson in Florida, and then landing at Marquette in 2004. We were delighted to have him as a faculty colleague for the next decade. Continue reading “Farewell to Professor Julian Kossow”

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”

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

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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

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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”

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?”