Contributions

In this Con­tri­bu­tion, Emi­ly Kaplan (’21) address­es the pro­pri­ety of sum­ma­ry judg­ment when a casi­no patron rais­es a vol­un­tary intox­i­ca­tion defense to con­tract­ing. Courts around the coun­try rec­og­nize the vol­un­tary intox­i­ca­tion defense in a casi­no con­text, which requires the casi­no patron to prove his and the casi­no employ­ees’ states of mind. In gen­er­al, sum­ma­ry judg­ment is typ­i­cal­ly not appro­pri­ate in cas­es involv­ing state of mind because whether a par­ty had the req­ui­site state of mind will be a ques­tion of fact. This has even more weight in the vol­un­tary intox­i­ca­tion con­text, where a court will rarely be able to decide as a mat­ter of law whether a casi­no patron was suf­fi­cient­ly intox­i­cat­ed to ren­der the patron unable to under­stand the nature and con­se­quences of his action, or whether the casi­no knew or had rea­son to know of that intox­i­ca­tion. Both deter­mi­na­tions are required to pre­vail on a vol­un­tary intox­i­ca­tion defense. More­over, it would be a poor pol­i­cy choice to allow casi­nos to prof­it off of their over­ly intox­i­cat­ed patrons. This arti­cle does not address the pro­pri­ety of allow­ing a vol­un­tary intox­i­ca­tion defense in the casi­no con­text, but as long as the defense is rec­og­nized, it can­not be mere­ly illu­so­ry; patrons must have the abil­i­ty to pre­vail, at least to tri­al. There­fore, casi­nos should gen­er­al­ly not be able to use sum­ma­ry judg­ment as a tool to prof­it off of intox­i­cat­ed casi­no patrons.

Contributions

This Con­tri­bu­tion exam­ines whether a bar can dis­crim­i­nate on the basis of gen­der in its bar­tender hir­ing prac­tices. Matthew Peter­son (’21) argues that Title VII’s bona fide occu­pa­tion­al qual­i­fi­ca­tion (“BFOQ”) excep­tion should not shield bars from gen­der dis­crim­i­na­tion lia­bil­i­ty. The text and pur­pose of Title VII com­mand a nar­row inter­pre­ta­tion of the BFOQ excep­tion, and a bar cater­ing to pref­er­ences for female bar­tenders is pre­cise­ly the type of unde­sir­able hir­ing prac­tice that Title VII seeks to pro­hib­it. The “essence” of a bar is mak­ing and dis­trib­ut­ing drinks, and the com­ple­tion of these tasks does not depend upon the gen­der of a bar­tender. Courts should not per­mit bars to jus­ti­fy such dis­crim­i­na­tion with claims of sup­port­ing “authen­tic enter­tain­ment.” Unlike an actor or dancer, whose core job func­tion is per­for­mance, a bartender’s pri­ma­ry respon­si­bil­i­ty is pro­vid­ing service.