Professor Keith Hylton, Honorable Paul J. Lucas Professor of Law from the Boston University School of Law headlined this year’s Monsanto Lecture on Tort Jurisprudence on Thursday, April 23rd. His lecture entitled, “Intent in Tort Law,” focused on the objective theory of intent and its relation to positive theories of intent standards derived from common law principles set forth by Oliver Wendell Holmes. Professor Hylton was amicable and well-spoken as he discussed examples of his tort theory and entertained questions from both students and professors. The reception immediately following the lecture provided an opportunity for discussion about Professor Hylton’s other endeavors, such as his United States Supreme Court amicus brief filings involving State Farm and Philip Morris and his involvement with The Torts and Products Liability Abstracts Journal for the Social Science Research Network.

Jolene is a 1L and can be reached at forum@valpo.edu.

A recent issue of Indiana Lawyer highlighted one of these cases: Amber Creed a/k/a Christopher Creed v. Fam­ily Express Corp., 2009 WL 35237, N.D. Ind. Jan. 5, 2009. In this case, the Court granted summary judgment in favor of the convenience store which was being sued by an employee, a male transitioning into a female, who alleged he was fired because he did not fol­low the male-specific appearance and grooming guidelines. Family Express operates convenience stores across Northern Indiana and is headquartered in Valparaiso.

The employee worked at one of the LaPorte stores, began working as a male and wore the unisex uniform, but he later began the transition to be­come a female by using a girl’s name and wearing makeup, clear nail polish, and longer hair with the uniform. The employee based his allegations on state­ments from a manager and a supervisor, which included being asked if “it would kill her” to dress as a male for eight hours a day and why she applied for a job knowing she was going through gender transitioning.

Family Express argued that the employee voluntary left his position when he did not provide a reason for why he would not comply with their request to cut his hair and stop wearing makeup.

In its decision, the Judge found the employee must be considered a man un­der Title VII because it is based on the biological gender of a person and held harassment based on transgendered sta­tus does not amount to actionable dis­crimination. The Court also held that Family Express’ appearance require­ments did not have a disparate impact on either sex. It reasoned that the em­ployee failed to provide sufficient evi­dence to show he would not have been terminated but for his failure to comply with male stereotypes.

Indiana is not the only place where transgendered individuals have fought discrimination. The ABA Journal’s Feb­ruary 2009 issue highlighted this issue in one of its articles. Among the cases described in the article was one against the government, specifically the Library of Congress. In that case, Schroer v. Billington, 577 F.Supp.2d 293, (D.D.C. 2008)., a U.S. Army Special Operations Colonel led a classified anti-terrorism unit before his retirement. During that time, he underwent facial surgery to become a woman. While preparing for the transition, he applied and was hired as a terrorism analyst for the Library. However, his job offer was revoked when the government learned about the gender transition. He sued, and the case went to trial.

The District Court Judge found that the Library of Congress had illegal­ly discriminated based on sex, but dam­ages have yet to be awarded. He cited evidence which showed that the Library was excited to hire the plaintiff, until they were informed about his gender transition. The Judge compared the Li­brary of Congress’ argument that trans­gendered individuals are not a protected class under Title VII to that of terminat­ing a person based on their conversion from Christianity to Judaism— both are still religions so it is still discrimination based on religion.

And now for the opinion of the Commers Court… I am puzzled by the Judge’s ruling in the Family Express case, considering he noted that “Title VII doesn’t allow an employer to treat employees adversely because their ap­pearance or conduct doesn’t conform to stereotypical gender roles.” I believe the employee provided sufficient evi­dence to show he was terminated solely because he did not meet societal stan­dards on how a male should appear.

On a personal note, the Family Express case is especially troubling to me because the incident occurred in my hometown, LaPorte, IN. This is an example of why Indiana, and the Mid­west to some degree, is seen by those by others as being intolerant. Even with the view of the courts in Indiana, I am hopeful that the view of the D.C. Dis­trict Court will eventually become the precedent on this issue and will remind people that every person has the right to live their life as they see fit without the interference of others, including the gender they prefer.

Christy is a 2L and can be reached at forum@valpo.edu.

For those of you that missed the 100 Day Celebration at Inman’s, you missed the party of the year! It had all the necessities for an all-out bash: pizza, wings, beer, door prizes, gift cards, bowling, bean bag games, and lots of beverage-induced revelry. Those people who were unable to drive home, for whatever reason, were of­fered taxi cab services at a discounted rate with the cabs right there waiting for patrons.

The moment you walked in you were greeted and given a raffle ticket for gift cards that were given away. Several draws were made throughout the night. Members of all classes came out in droves to celebrate the last 100 days of law school for the 3Ls. As the night progressed, people split up into teams for bowling. Even those who weren’t so great at bowling were having a good time, mingling with friends and playing other games.

The highest team score was 693, bowled by: Joel Funk, Jon Fay, Steve Olsen, Jon Morris, Steve Gage, and Josh Hood. The highest individual score was 199, bowled by Steve Olsen.

With everything going on before graduation this was a great way to re­lieve stress. If you missed all the fun, don’t fret because there are many more events to come before graduation.

Amber is a 3L and can be reached at forum@valpo.edu.

At the law school, our multitask­ing lifestyles depend on a conglomerate of networks, programs, servers, and an IT staff that is overstretched and under­appreciated. Most of us take for granted the time, money, and expertise involved in making our school’s technological world operate on a daily basis. That said, there are some major problems with the way our technology is man­aged at this University. Our law school IT staff members are not the problem, they are the solution.

Some of us have probably been frustrated with the lack of integration between all of the different services we use: GroupWise, CourseVU, DataVU, Symplicity, and Valpo.edu. Some of us have had serious problems with the effectiveness of one or more of these services.

What causes an even bigger head­ache is how little control our school has over the management of our major technological services. The University purchases and administers our major services such as DataVu, CourseVU, GroupWise, etc. Our IT staff has little say in this process and is often denied access to the services should they want to change things for our benefit.

Like most things at our law school, if we want to make any major changes, we have to work through the administrative chain of command. Our connection to the outside world has to go through the main campus. We have very little independent authority regard­ing major technological purchases or implementations.

The needs of our law school are different from those at the University. We have different users, priorities, and responsibilities than the main universi­ty. We have higher tuition than those at­tending the undergraduate school. Our IT staff has to make the best of what is handed to them from the University and customize it for the needs of the law school.

There are two major problems: bureaucracy and money. Our IT depart­ment could very easily move our school from good to great on the technology front, giving our students the best tech­nological services available and while improving our educational experience and chances for employment.

The first problem is that our IT de­partment does not have equal decision making power in comparison to the University’s IT department. We could be saving money by not offering @valpo.edu email addresses and just us­ing Gmail. But, the way everything is set up now, the entire University would have to change, not just the law school. We could also be integrating the major­ity of our web services into one adjust­able program, but that would mean the whole University would have to do the same and approve the same. It is a mat­ter of having the independent authority to make necessary changes for our indi­vidual institution that is at issue.

The second major problem is that if our IT department had the go ahead to make all of these changes, they would most likely be very short on cash. This problem could be that a portion of our tuition dollars goes toward paying for things on the main campus that the ma­jority of our students do not use. If we could divert some of this money and other funds toward the IT budget, we might be able to afford to take the nec­essary action.

In a world where technology changes the way we send, receive, view and interpret information every day, our institution must be lean and ready to quickly adapt to new environments. The way we use technology at our in­stitution could very well be the rocket that launches our school to the top of the ranks or the anvil that sinks us into the mud.

We have no time for lead-footed bureaucracies to slow our progress. We need to put technology at the front of our agenda. It is the necessary infrastruc­ture through which we communicate, with each other and with the world.

Jon is a 2L and can be reached at fo­rum@valpo.edu.

A beer recipe and a marketing plan to sell the jalapeno flavored beer were found on the computer of Sam Worker, an employee who quit his job at Spartan Brewing to work for triple his normal salary at another com­pany, Wolverine Brewing. Shortly af­ter beginning work for the competing company, Wolverine came out with a new, jalapeno flavored beer, bringing the company great success. Mix in ad­ditional facts that Wolverine Brewing had a bad year before the release of their new beer, and that Worker had breached a close relationship with his prior boss by ‘comforting’ his boss’s wife – and the 2008 Intraschool Trial Advocacy Competition facts were born.

The State of Sparta brought three charges against Worker, embezzlement, exceeding valid computer authoriza­tion, and use of a computer to commit a crime, all of which had to be proven beyond a reasonable doubt. In the final round, Worker was found not guilty on all three counts.

The 5th Annual Intraschool com­petition began in late September, when incoming rookie Mock Trial members teamed up with seasoned 3Ls to form teams of four, two serving as the pros­ecution, and two as defense attorneys. The many hours of practice culminated into the final competition, held Wednes­day, November 12, where the prosecu­tion, represented by finalists Eric Ditton and Paul Namie, faced off against Jeff Powell and Kelly Bailey.

Ditton led off, informing the jury that if “it walked like a duck and quacked like a duck, it must be a duck.” He went on to describe that the facts the jury was about to hear could only lead them to conclude that Worker had stolen the beer recipe and marketing plan. In response Bailey told the jury it was not a complex set of facts from which they were to infer that Worker had stolen the recipe, rather the facts revealed the owner from Spartan Brewing Company to be driven by a jealous demon, angry that his best employee had gone to work for a competitor.

Erika Nelson played the role of Mr. Gallagher, the owner of Spartan Brewing, testifying that she had never given the recipe or marketing plan to anyone, but under a cross from Powell revealed that her office, where she had stored the stolen recipe and marketing plan, was an open access area to anyone who desired to enter.

Brad Colburn portrayed the role of the investigating officer in the case, tes­tifying that he had run a thorough inves­tigation leading him to one conclusion: Sam Worker was guilty. Through a cross by Bailey, the jury learned however that the thorough investigation took place in a day, and that no other computers besides Worker’s were investigated for other suspicious activity.

Amanda Hires took the role of Sloan Jackson, the owner of Wolverine Brewing. She testified she hired Work­er due to his proven ability to market a product, and that they had had a jalap­eno flavored beer in the making, long before she ever met Worker. A cross by Namie showed circumstantially that it was not until Worker came on board did Wolverine have success, and in addition he cast doubt on whether Wolverine ac­tually had created a jalapeno flavored beer, or whether it had merely copied some else’s.

Steve Gage, acting as the defen­dant, took the witness’s chair to declare his innocence, to defend his prior histo­ry, and to share that with a young grow­ing family, he had to take the opportuni­ties he was given, to give a better life to his family. In cross, Ditton revealed that Worker had communicated with his new boss while still at his old job, offer­ing “ideas” to him.

In closing argument, Namie dis­played to the jury how the marketing plans for the two companies were al­most exactly the same, that circumstan­tially the only inference to conclude was that Worker was guilty.

In response, Powell emphasized the eluding fact throughout the trial: that the prosecution could never assure the jury that it was actually Sam Worker who had stolen the recipe and down­loaded it to his work computer.

The jury, consisting of attorneys from the area, returned a verdict of not guilty.

Tracey Steel Schafer, this year’s Mock Trial Intraschool Competition Chair, was thankful to have attorneys from the community present throughout the competition. “I was glad to have out­side judges to make the tough decisions, there was so much talent. It was great to see everyone stand up in the courtroom, with confidence, and advocate for their clients,” she said.

With Powell and Bailey clinch­ing honors as the 2008 winning team, others received awards as well. “The judge’s compliments this year were overwhelming,” said Tracey, “in fact, several attorneys said they hoped they never had to face any of our team mem­bers in a court room.” Other team mem­bers receiving awards in 2008 included: Brad Colborn (Best Advocate); Ehi­man Uwidia (Courtroom Demeanor); Jeff Powell (Closing Argument); Jesse Lorenz (Opening Statement); Amanda Hires (Direct Examination); and Van­essa Sheehan (Cross Examination).

The Valparaiso Mock Trial Team continues their season with two nation­al spring tournaments. The first will be the National Trial Competition, which is hosted in Chicago. The second com­petition is the American Association for Justice, held in Cleveland, Ohio.

Nathan is a 2L and can be reached at Forum@Valpo.edu

This year MLSA continued its tra­dition of providing Thanksgiving bas­kets for underprivileged families in the Valparaiso area. This is MLSA’s largest event of the year, and many of its mem­bers feel that it’s the most meaningful.

The event was hosted the night of November 18th in Tabor, and the baskets were delivered right before the Thanksgiving break on November 21st to the Hilltop Community Center. Dire economic times have hit Northwest Indiana and the Center especially hard this year; currently, it’s averaging two new families in need of assistance a week. In times like these, every little bit of charity helps.

Weeks before the Thanksgiv­ing Basket event took place, however, MLSA and other student groups from Valparaiso University School of Law were already hard at work organiz­ing this event. Through selling pizza at Chapel Break to hungry students in Professor Lind’s Civ Pro class to do­nating money themselves, MLSA and other groups put together the necessary funds to create these baskets and spread some much needed holiday cheer to lo­cal families going through a very tough time.

This year, the baskets contained a wide array of holiday foods. While the baskets were being stuffed, wrapped, and festively decorated, the volunteers placed everything from rolls to stuffing to marshmallows inside of them. In ad­dition to the side dishes, the baskets also contained coupons which the families could use to buy a turkey. Each basket contained everything anyone would need to have a very special Thanksgiv­ing holiday.

When all was said and done, ten huge baskets were ready to be donated. Each basket goes to a different fam­ily once delivered to the Hilltop Center – thanks to the hard work of MLSA and other VUSL groups, ten families got to enjoy a well-deserved Thanksgiving dinner.

David is a 1L and can be reached at Forum@Valpo.edu

The event, which cost $6 for ad­vance tickets and $8 that day, provided a traditional Thanksgiving meal for more than 170 people alike. The proceeds went to local community organizations. President and Mrs. Heckler joined in the festivities of the day by attending the feast.

The lunch featured an outstand­ing assortment of food. Along with the traditional turkey and rolls, guest chose from a variety of side dishes, including: cranberry sauces, green bean casserole, broccoli casserole and corn soufflé, various types of jello and tossed salads, and a host of desserts including pump­kin and apple pies, cookies and cakes. Items that got high marks from lunch-goers included the rice crispie treats molded into the shape of a drumstick and the many side dish options. With the amount of food served, it was cer­tain no one left the lunch hungry.

The faculty and staff who put on the lunch deserve special credit. Dean Mary Persyn spearheaded the event while Library Circulation Desk Su­pervisor Debbie Blennerhassett was responsible for ticket sales. Persyn also bought and cooked the turkeys, ensuring there was plenty of meat for the hungry guests. Assistant Registrar Linda Canada took the lunch tickets and tracked the number of people attending the affair. Other staff and faculty con­tributed to the lunch by providing side dishes and desserts, decoration, and a clean-up crew.

The Thanksgiving Dinner is an event many look forward to during Fall semester. If you haven’t enjoyed Law School Thanksgiving feast before, you should plan to attend next year as it’s worth the extra time spent in Valpo.

Christy is a 2L and can be reached at forum@valpo.edu.

[Editor’s Note: Would the person who makes the drumstick rice krispies please e-mail the recipe at sarah.crouch@val­po.edu. I won’t be here next year and would like to make them in a far away land known as New Jersey. I promise to take any secret ingredient included in them to the grave. Thanks.]

According to a Reuters article, a South Sudanese official is looking for a new job after creating a law that caused a substantial amount of women to be arrested for disturbing the peace. The women’s crime: wearing tight pants.

The President issued a statement firing Juba County Commissioner Al­bert Pitia Redentore from his position. Redentore recently banned tight pants because he found them a sign of gang behavior which threatened the country’s traditional values. The Commission­er’s actions did not sit well with other government officials. Gender Minis­ter Mary Kiden found the law uncon­stitutional and likened the law to the strict clothing restrictions imposed on women in North Sudan. This particu­lar law struck a chord in this particular region because Northern and Southern Sudan engaged in war for decades, par­tially due to the south’s resistance of the north’s Islamic Sharia law.

And now for the opinion of the Commers Court… The South Sudanese government did the right thing by pre­venting women from being arrested for wearing tight pants given its history of rebelling against an extremist Islamic government.

It is not just foreign governments who are regulating how a person can wear his or her clothing either. Accord­ing to a Palm Beach Post article, Rivera Beach, Florida has imposed a penalty for individuals wearing baggy pants. While most city decisions are typically voted on by city council members and made into ordinaces, this decision was enacted through a public election. The ordinance passed with 72% of the vote, and most of those who voted for the measure were elderly members of the community.

Under the law, a person would face legal action if they display skin or underwear. The first offense carries a $150 fine or community service while a second offense has a $300 fine or community service. Habitual offenders could face up to 60 days in jail.

Rivera Beach joins other cities and the Atlanta School District in es­tablishing baggy pants rules. Other schools are also addressing the issue by adopting uniforms or implementing dress codes. One cited reason for the emergence of dress codes and uniforms is to control gang behavior and pre­vent clothing from being a distraction. Proponents of dress codes state that it is easier for parents to buy clothes and get children ready for school. Teachers have stated that dress codes make stu­dents work harder. Opponents of uni­forms and dress codes point to the loss of students’ freedom of expression and the financial cost of having to buy extra clothes just to comply with the cloth­ing requirements. The ACLU and other organizations are representing students and their parents in these matters across the country.

According to a MSN.com re­port, courts are settling disputes about a student’s choice of school clothing. Schools, as established in Tinker v. Des Moines Independent Community School District, have a right to enact dress codes if clothing would cause a substantial distraction to students. This, and the growth of gangs, has led schools to enact dress codes or require uniforms. Even though dress codes are established to protect students and promote learn­ing, they can go too far. The MSN article stated that a Fresno, California student was suspended for promoting specific races, cultures, and identities by wearing a t-shirt with the American flag. School officials admitted the rule was badly applied in the situation.

And now for the opinion of the Commers Court… Judging fashion is subjective – what I may find distasteful, you may think is the next cool trend. That being said, however, everyone should follow common sense on what a person can and cannot wear to school including the courts in dress code cases even if that sometimes means less ap­parel is banned.

Christy is a 2L and can be reached at forum@valpo.edu

1) If you could teach any class you wanted in Law School, what would it be?

A seminar on Law and Language. See, e.g., Roger W. Shuy, Language Crimes: The Use and Abuse of Language Evi¬dence in the Courtroom (Blackwell 1993).

2) What’s your favorite color?

Blue

3) Which actor played the best James Bond?

Sean Connery. By far.

4) If you had to be a professional Pi¬rate or Ninja, which would you be?

Ninja – it’s closer to the martial art that I’ve practiced and taught.

5) Assuming both were in their prime, who do you think would win in a box¬ing match: Abraham Lincoln or Ted¬dy Roosevelt?

Could we get a Democrat, please?

6) Because it’s that time of year, what was the best/coolest/most original Halloween costume you ever wore?

Vampire.

7) You get to play a round of golf with any Supreme Court Justice, past or present, who do you pick?
John Marshall.

You’re granted 1 wish, what do you choose?

The classic — 3 more wishes.

9) Star Trek or Star Wars?

Star Trek.

10) Hypothetically, could God micro¬wave a burrito so hot that he, himself, could not eat it?

God cooks? Do you have any authority for that, counsel?

Griffith was appointed to the D.C. Circuit Court in 2005 by President George W. Bush. Since accepting his commission, Griffith, who received his law degree from the University of Vir­ginia School of Law, has presided over many cases that have made national headlines. In March of 2007, Griffith was a part of the majority decision in District of Columbia v. Heller, which ruled that the District’s strict hand gun law was unconstitutional under the Second Amendment. The decision sub­sequently grabbed headlines when it stated that the Second Amendment pro­tected the individual’s right to bear arms as opposed to the collective right of a state militia. More recently, Griffith ruled against the Bush administration in the case of Huzaifa Parhat, a Chinese Muslim, being held at the Guantanamo Bay detention camp, saying that the evi­dence against him was spurious.

In presenting his speech, Griffith argued Bork’s stance of judicial neutral­ity in which a federal judge, in order to uphold the freedoms of both the major­ity and the individual, must have a firm understanding of the scope of judicial power as defined by the Constitution of the United States. Instead of decid­ing cases that would advance outcomes that he or she believes desirable, a judge must apply the law as it is written. Any­thing less, would be an abuse of power that would make the judiciary a “naked power organ.”

“Sometimes the values chosen by the American people and expressed in law is flat out wrong,” Griffith ex­plained. “Sometimes it is not just, sometimes it is not fair, but is not the role of the judge to correct the faults of the American people.”

Griffith peppered his talk, which lasted for about 40 minutes, with stories of his own experience on the bench, as well as quotes from a plethora of his­torical sources, all of which he tied into the central theme of judicial neutrality. He also at one point he entertained the audience by acting out a scene from Robert Bolt’s play, “A Man for All Sea­sons.”

In concluding his talk, Griffith answered the question that his talk set out to answer. “I believe Judge Bork is right, judges must be neutral. Oth­erwise, the system of democratic gov­ernance fails.”

The talk became contentious during the question and answer ses­sion when numerous professors took Griffith’s speech to task. Griffith with good humor, however, held firm to his opinion.

“The American people have made their value choices and expressed them into law,” he claimed. “My job as a judge is to use all the skill I can mus­ter and apply that value choice to the dispute before me. If I use my own contrary views – what is right, what is wrong, what is just – I undermine the careful law making process of the con­stitution.”

David is a 1L and can be reached at forum@valpo.edu