by Drake T. Land
J.D. Candidate, 2015, Indiana University Robert H. McKinney School of Law
Indiana International & Comparative Law Review: Executive Articles Development Editor
B.S., 2007, Ball State University; Muncie, Indiana
Editor’s note: Mr. Land’s article was selected from submissions in the Indiana Law Review‘s first writing competition.
Following the introduction of Genetically Modified Organisms (“GMOs”) into the food market in 1994,  consumer groups and multiple legislative bodies have fought to restrict their sale and label GMOs differently than traditionally developed foods. . This push to restrict the sale, or label, of GMOs is born of the fear that GMOs will have unforeseen consequences to human health and/or the environment. . These fears have been shown to be unrealized after twenty years of market availability  and, although restrictions on the sale of GMOs and mandatory labeling is the law in most European countries,  labeling initiatives have not achieved the same success in the United States’ federal and state governments. . The European Union “has probably the strictest GMO regulations in the world though these derive rather from political considerations, rather than being based upon scientific principles.” . Unlike the European Union (“the EU”), the United States Constitution explicitly “promote[s] the progress of science,”  and under this framework the United States has provided more protection to the development and retail of GMOs.
All currently grown crops have been developed through genetic modification. . “By selectively breeding plants and animals with the most desirable traits, our predecessors transformed organisms’ genomes, turning a scraggly grass into plump-kerneled corn, for example.” . Following Mendel’s discovery of the inheritance of genetic traits, farmers and scientists alike have been using selective breeding and hybridization to alter food crops to make them more reliable and marketable. . “Today, there are virtually no food products in supermarkets that have not been improved in some manner by selective breeding.” . (more…)
by Burnell K. Grimes, Jr.
J.D. Candidate, 2016, Indiana University Robert H. McKinney School of Law
B.A., 2013, Indiana University – Bloomington; Bloomington, Indiana
Editor’s note: Mr. Grimes’s article was selected as the winner of the Indiana Law Review‘s first writing competition. You can read more about it here.
The Indiana State Legislature has established a statutory rule allowing a court to appoint an attorney to represent an indigent person in civil matters, upon application by the litigant. . In Sholes v. Sholes, the Indiana Supreme Court held that (1) Indiana Code section 34-10-1-2 requires appointment of counsel for civil indigent litigants, and (2) the appointed counsel must be compensated. . However, the Court did not specifically decide who would be responsible for compensating those attorneys who are appointed as counsel to indigent citizens. . While the Court suggests that the county courts use their authority to require payment as part of the functions of the court’s administrative duties, this has placed a significant burden on courts that are already constrained by tight county budgets. .
While there are many possible solutions to the funding problem associated with civil legal aid in Indiana, there is a need to establish one funding source responsible for all civil legal aid matters. . This article will discuss one possible solution to the funding problem for civil legal aid in Indiana, with a specific focus on the Indiana Civil Legal Aid Fund and the Indiana Pro Bono Commission. These funds may be used to address the funding and participation shortage for both civil indigent litigants and pro bono efforts and legal aid projects in Indiana. (more…)
The Indiana Law Review is pleased to announce the following members have been selected for its editorial board of Volume 49. We look forward to their leadership and contributions to legal scholarship throughout the 2015-16 academic year. Congratulations!
Alexandria Hanauer, Editor in Chief
C. Addison Bradford, Executive Managing Editor
Elizabeth Little, Executive Notes Editor
Kathleen Fennessy, Executive Articles Editor
Aaron Tuley, Executive Articles Editor
Mitchell Osterday, Senior Executive Editor
Alexandra Blackwell, Symposium Editor
Sarah Hurdle, Executive Technology Editor
Note Development Editors:
J. Michael Deweese
by Caitlin R. Brandon (Attorney Profile)
Associate, Intellectual Property
Barnes & Thornburg LLP
11 South Meridian Street
Indianapolis, IN 46204
Keyword advertising is not a new phenomenon. Some believe that various forms of keyword advertising have been around since as early as 1996. . Generally defined as a “form of advertising on the Internet in which a business pays to have an advertisement [for] a website appear on [a consumer’s] computer screen when [the consumer] uses a particular word or phrase to search for information on the internet,”  keyword advertisements play a very important role in the marketing and advertising of many businesses. (more…)
In an effort to promote student involvement in the Indiana Law Review Blog, the Indiana Law Review held a writing competition open to all IU McKinney law students during the 2014 fall academic semester. After reviewing submissions to the contest, the article authored by Burnell Grimes, a second year law student at IU McKinney, was selected as the best submission.
His article titled “The Best of Both Worlds: A Solution to Indiana’s Appointment of Counsel Funding Problem” will be published on the Indiana Law Review Blog in the coming months. Check back later to read about his proposed solution to improve the efficiency and efficacy of the legal aid and pro bono programs for Indiana’s indigent populations.
by Jonathan Hughes  (Attorney Profile)
Bose McKinney & Evans, LLP
111 Monument Circle, Suite 2700
Indianapolis, IN 46204
“To preserve legislative independence, . . .‘legislators engaged in the sphere of legitimate legislative activity should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves.’” .
“Private lawsuits threaten to chill robust representation by encouraging legislators to avoid controversial issues or stances in order to protect themselves.” .
“We are governed by laws, not by the intentions of legislators.” .
“[I]t simply is not consonant with our scheme of government for a court to inquire into the motives of legislators . . . .” .
“All politics is local.” . Former Speaker of the House Thomas Phillip “Tip” O’Neill used these words to remind federal politicians to “pay attention to their own backyards and take care of their folks.” . The concept also carries a broader meaning – that local legislative actors are most intimately entrusted with providing services to the public. Often, local legislative actors are not afforded the opportunity to focus solely on their legislative jobs. Their role as town council member, city council member, or state legislator is often only a part-time job for which they must supplement their salary with other work. Federal legislators, on the other hand, are afforded full-time jobs and a staff to assist them in performing their functions. In this context, when a city or town is sued for taking some legislative action, the local legislator should be protected from judicial inquiry to the same extent as the federal legislator. Unfortunately, a circuit split has developed, with some federal courts providing a lesser legislative immunity to local legislators than is provided to federal legislators. (more…)
by Jon Noyes (Attorney Profile)
Wilson Kehoe Winingham LLC
2859 N. Meridian St.
Indianapolis, IN 46208
A litigator is representing a client in a personal injury case where the client has suffered significant injuries. Although the litigator has strong evidence that the client was injured, the damage award could vary by a wide margin. The litigator would like to narrow the lower margin without sacrificing the higher margin, but is not sure how to do so. An interrogatory asking the defendant to place a value on the client’s damages would certainly be objected to. Nor would the defendant’s deposition prove fruitful because the defendant cannot be expected to accurately value the plaintiff’s claim on the spot. Rather, the litigator may find the solution through requests for admissions.
Requests for admission are a powerful but underutilized discovery tool that allow attorneys to ask an opposing party to admit any matter relevant to the case and not protected by privilege. . Unlike the Federal Rules, Indiana does not limit these matters to enumerated categories. . Instead, all non-privileged, relevant matters are proper, including “an opinion, a contention, or a legal conclusion, if the request is related to the facts of the case.” . This allows attorneys to significantly clarify their adversaries’ contentions and gain the upper hand at trial. (more…)
Hannah Kaufman Joseph (Attorney Profile)
Marc A. Menkveld (Attorney Profile)
Katz & Korin, P.C.
334 N. Senate Avenue
Indianapolis, IN 46204
More info on the firm’s Blog, Facebook, and Twitter
On November 14, 2014, the Indiana Court of Appeals upheld a $1.44 million jury verdict against Walgreen Company (“Walgreen”) for a pharmacist’s breach of privacy obligations. . The opinion began, “[i]n this case, a pharmacist breached one of her most sacred duties by viewing the prescription records of a customer and divulging the information she learned from those records to the client’s ex-boyfriend.” . That brief summary of the case’s fact pattern provides the foundation of what ultimately led to a large jury verdict against Walgreen, derived solely from the acts of its employee.
Andrew M. McCoy
Faegre Baker Daniels LLP
300 North Meridian Street, Suite 2700
Indianapolis, IN 46204
Section 285 of the Patent Act allows a prevailing party to recover attorneys’ fees in “exceptional” cases. . In Octane Fitness, LLC v. Icon Health & Fitness, Inc.,  and Highmark Inc. v. Allcare Health Management Systems, Inc.,  the Supreme Court relaxed the requirements for proving an “exceptional” case in three significant ways: (1) now a party who files a section 285 motion need only prove that a case is “exceptional” by a preponderance of the evidence;  (2) the movant no longer has to prove bad faith and objective baselessness,  but instead must prove that, under the “totality of the circumstances,”  the case “stands out from others,” considering numerous factors, such as “frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need . . . to advance considerations of compensation and deterrence;”  and (3) the appellate standard of review under section 285 is now a deferential abuse-of-discretion standard. .
Intellectual property litigators must be aware of these changes and also how various district courts are applying them. This article analyzes the dozens of cases that have applied Octane Fitness and Highmark, with a particular focus on district court opinions,  and identifies helpful trends and insights for patent litigators. (more…)
Lori M. Craig
J.D. Candidate, 2014, Indiana University Robert H. McKinney School of Law
B.A. 1997, Indiana University – Bloomington, Bloomington, Indiana.
“’For Christ’s sake, let me die in peace!’ he said.
. . .
‘You know perfectly well you can do nothing to help me, so leave me alone.’
‘We can ease your suffering,’ said the doctor.
‘You can’t even do that; leave me alone.’
. . .
He drew in a breath, broke off in the middle of it, stretched himself out, and died.” . (more…)